WJ (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir David Keene |
| Judgment Date | 01 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1055 |
| Date | 01 July 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/0253 |
[2014] EWCA Civ 1055
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(UTJ PITT)
Royal Courts of Justice
Strand
London, WC2A 2LL
Sir David Keene
Case No: C5/2014/0253
Ms Emma King (instructed by JD Spicer Zeb) appeared on behalf of the Appellant
The Respondent did not appear and was not represented
This is a renewed application for permission to appeal from a decision of the Upper Tribunal, permission having been refused on the papers by Rafferty LJ. This is therefore technically a second appeal, but it is one where the second appeal tests are to be applied somewhat less rigorously than usual. This is because the appeal to the Upper Tribunal was brought by the Secretary of State, the applicant having succeeded at first instance.
The applicant is a citizen of Afghanistan born, according to the findings, on 1 July 1994. He is therefore today aged 20. He arrived in the United Kingdom on 13 April 2010 at a time when he was aged 15. He claimed asylum. That was refused, but he was granted discretionary leave to remain as an unaccompanied minor.
What the Secretary of State did not do was to comply with the tracing duty imposed by regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005. That failure led to a successful appeal when the Secretary of State refused further leave to remain after a number of years. That decision at first instance was itself set aside on appeal to the Upper Tribunal, and after various other procedural events, into which I need not go, the matter came before the Upper Tribunal again in September 2013. The appeal was brought on asylum and Article 8 grounds, but with the added element of the Secretary of State's earlier failure to carry out the tracing duty being advanced as part of the case. The appeal was heard by Upper Tribunal Judge Pitt who dismissed the appeal. The applicant now seeks permission to appeal to this court against that decision.
Judge Pitt rightly proceeded on the basis that the respondent's failure to carry out her regulation 6 duties should be taken into account on the asylum and Article 8 issues; the latter, I should say, relating to the applicant's private life. The judge noted the particular facts about the applicant who was an only child, whose father had been a Taliban commander killed in battle and whose mother, it seems, had also later died. The judge noted also that the applicant had received some education in the United Kingdom during the three years, or so, in which he had been in this country.
On the evidence the judge found that it had not been shown that the applicant would be at real risk of mistreatment if he were returned to Kabul. In so finding the judge took into account the applicant's "relatively young age", he was by then 19, his lack of family support on return and his lack of a profession. Against those matters the judge weighed the education, which the applicant had received in this country, and the reintegration grant which he would get on return to support himself, and the fact that most of his formative years had been spent in Afghanistan.
The judge took account of those same factors in dealing with the effect on the applicant's private life, and expressly took the Secretary of State's tracing failure into account in respect of proportionality under the Article 8 exercise. The judge reduced the weight to be attached to the public interest in maintaining effective immigration control because of that failure. But, having done so, he nonetheless concluded that there would be no breach of Article 8 in all the circumstances, finding that return would be proportionate.
On the applicant's behalf this...
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