The Queen (on the application of Abdulraziq Shinwari) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Frances Patterson |
| Judgment Date | 19 July 2013 |
| Neutral Citation | [2013] EWHC 2148 (Admin) |
| Docket Number | Case No: CO/3415/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 July 2013 |
[2013] EWHC 2148 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Frances Patterson QC
Sitting as a Deputy High Court Judge
Case No: CO/3415/2012
Sonali Naik (instructed by Duncan Lewis, Solicitors) for the Claimant
Nicholas Chapman (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 19 June 2013
Frances Patterson QC:
Introduction
This is a claim for judicial review of a decision dated 27 March 2012 to remove the claimant to Afghanistan. The claimant seeks a declaration that the Secretary of State reconsider her decision, taking into account the principle of corrective relief. The proceedings were stayed by Burnett J on 30 March 2012 to await the decision of the Court of Appeal in KA (Afghanistan). That decision was handed down on 25 July 2012 under reference 2012 EWCA (Civ) 1014. On 21 August 2012 permission was granted by HHJ Vosper QC, sitting as a judge of the High Court on the basis that:
" It is arguable that the steps by the defendant in the present case (the AOS) do not go far enough to discharge her duty under Regulation 6 and that the failure is relevant to the determination of the claimant's asylum claim."
Further directions were given on 2 October 2012, by consent, for the filing of amended Grounds of Claim and consequential pleadings. On 4 June 2013 the claimant filed Amended Grounds. On 17 June 2013 the defendant filed Detailed Grounds of Resistance. On 19 June the case came before me.
Factual Background
The claimant is a 20-year old national of Afghanistan who is a failed asylum seeker. He was due to be removed from the United Kingdom on 4 April 2012. The claimant was born on 12 January 1993. On 8 December 2007 he was fingerprinted in Greece. On 28 April 2008 he arrived in the UK unlawfully as an unaccompanied minor. He claimed asylum on 4 June 2008. He was interviewed on 26 August and asylum was refused on 26 September 2008, when the Secretary of State granted discretionary leave to remain until the claimant reached the age of 17 1/2 on 12 July 2010. On 8 July 2010 the claimant applied for extension of his discretionary leave to remain, which was refused on 8 September 2010, when a decision was taken to remove him from the Untied Kingdom. On 5 November 2010 the First tier Tribunal dismissed the claimant's appeal. On 22 November 2010 he became appeal-rights exhausted. On 9 February he was arrested for alleged criminal offences which were not pursued. Removal Directions were set, cancelled and finally reset on 27 March 2012 for his removal on 4 April 2012. It is those Directions which are the subject of this challenge.
The Claimant's Case
The claimant's case is that:
i) The defendant is in breach of her duty to endeavour to trace the claimant's family pursuant to Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005.
ii) The defendant failed to have any or any proper regard to her duty under s55 of the Borders Citizenship and Immigration Act 2009.
iii) The claimant has established a material disadvantage in the outcome of his asylum claim as a result of those breaches.
iv) The defendant has acted perversely and unlawfully in failing to exercise her discretion to grant leave to remain.
v) As a consequence, it is incumbent upon the defendant to reconsider the claimant's application in accordance with the principle of corrective relief.
The Defendant's Case
The defendant admits that, in the circumstances of this case, she has breached her duty to endeavour to trace the claimant's family members. She accepts that, in theory, she could have paid a local agent to travel to the village where the claimant said he lived and made enquiries as to his family's whereabouts. That breach might, therefore, be relevant for evidential considerations in the asylum claim or in the discharge of her duty under s55 in general, but not in the specific factual context of the current case. The defendant's submission is that there is no causative link between the defendant's failure to comply with her duty and the outcome of the claimant's asylum claim. The claimant has been unable to demonstrate any real prejudice or material disadvantage: the loss of an opportunity is not sufficient to constitute an error in public law. Further, the "corrective or protective" principle is about the correction of injustice, and not about sanctioning the Secretary of State. The principle is, therefore, inapplicable in the instant case.
The Legal Framework
The case of KA (Afghanistan) v Secretary of State for the Home Department (2012) EWCA (Civ) 1014 considered whether Afghan minors applying for asylum who had attained the age of 18 by the time of the hearing before the First tier Tribunal or the Upper Tribunal " should retain the advantage (in immigration terms) of their minority". It considered the significance of a failure to comply with the duty to endeavour to trace; the significance of a failure to comply with a duty under s55 of the Borders Citizenship and Immigration Act 2009 and the so-called corrective principle. Maurice Kay LJ, giving the lead judgment, said:
" 16. The case for the appellants is that the duty to endeavour to trace simply was not complied with between 2006 and 2010; that this was not just a haphazard coincidence in the present cases; and that the irresistible inference is that it was deliberate and systemic. Indeed, it seems that in DS (Afghanistan), the submission on behalf of the Secretary of State, which was rejected by this Court, was that she was "entitled to do nothing by way of tracing inquiries" (paragraph 44). In the present case, that has morphed into a submission which I can caricature as an entitlement to do next to nothing which I find equally unsustainable. The inference that I draw from the history prior to DS (Afghanistan) is that the Secretary of State failed to discharge the duty in relation to unaccompanied minors from Afghanistan because she adopted the policy of granting them leave to remain until they reached the age of seventeen and a half, whereafter any further application would be considered on its merits. By that time, of course, the duty to endeavour to trace would be close to expiration because of the imminence of majority.
17. Having accepted that there was a systemic breach of the duty to endeavour to trace, I now have to consider whether that may trigger the Rashid/S principle. It is a complicated question and not simply a matter of the systemic breach entitling these appellants, without more ado, to the allowing of their appeals with remittal to the Secretary of State to consider grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the appellants were over 18 when their cases came before the FTT or the UT and, as a consequence and in accordance with the Ravichandran principle, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid/S principle applies, it modifies the strict application of Ravichandran.
18. At this point, it is appropriate to refer to what I may call "the eighteenth birthday point". Although the duty to endeavour to trace does not endure beyond the date when an applicant reaches that age, it cannot be the case that the assessment of risk on return is subject to such a bright line rule. The relevance of this relates to the definition of a "particular social group" for asylum purposes. In DS, Lloyd LJ considered LQ (Age: Immutable Characteristic) Afghanistan [2008] UKAIT 00005 in which the AIT held that "for these purposes age is immutable", in the sense that, although one's age is constantly changing, one is powerless to change it oneself. Lloyd LJ said (at paragraph 54):
'that leaves a degree of uncertainty as to the definition of a particular social group. Does membership cease on the day of the person's eighteenth birthday? It is not easy to see that risks of the relevant kind to who as a child would continue until the eve of that birthday, and cease at once the next day.'
Given that the kinds of risk in issue include the forced recruitment or the sexual exploitation of vulnerable young males, persecution is not respectful of birthdays – apparent or assumed age is more important than chronological age. Indeed, as submissions developed there seemed to be a degree of common ground derived from the observation of Lloyd LJ."
The ensuing principles were then set out in paragraph 24:
" Certain principles emerge from the authorities, particularly DS and HK:
1. The duty to endeavour to trace is not discharged by merely informing a child of the facilities of the Red Cross.
2. A failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim.
3. Such a failure may also be relevant to a consideration of the section 55 duty."
The importance of a factual matrix in each case was then considered in the following paragraphs as follows:
"25. Although we are not yet in a position to deal with the cases of these individual appellants (save for SA), it is important to emphasise that, when the principles to which I have referred come to be applied to individual cases, much will turn on their specific facts. There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the...
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