JUDGMENT
TN and MA (Afghanistan) (Appellants) v Secretary
of State for the Home Department (Respondent)
AA (Afghanistan) (Appellant) v Secretary of State
for the Home Department (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
24 June 2015
Heard on 2 and 3 March 2015
Appellants (TN & MA) Respondent
Becket Bedford Jonathan Hall QC
Zane Malik David Blundell
(Instructed by Sultan
Lloyd Solicitors
)
(Instructed by Government
Legal Department
)
Appellant (AA)
Stephen Knafler QC
Anthony Vaughan
(Instructed by Luqmani
Thompson & Partners
)
Intervener (The Office of
the Children’s
Commissioner
– Written
Submissions Only)
Nadine Finch
(Instructed by Freshfields
Bruckhaus Deringer LLP
)
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LORD TOULSON: (with whom Lord Neuberger, Lady Hale, Lord Wilson
and Lord Hughes agree)
1. The appellants have four things in common. They have Afghan nationality.
They came to the UK as unaccompanied minors. They claimed asylum. Their claims
were rejected. The present appeals involve two discrete sets of issues. They relate a)
to the sufficiency of the appellate process and b) to the respondent’s obligations with
regard to family tracing.
Background
2. In 1999 the EU Council of Ministers resolved to work towards a Common
European Asylum System. There followed a group of Council Directives which
together form a code. They are Directive 2003/9/EC of 27 January 2003 laying down
minimum standards for the reception of asylum seekers (“the Reception Directive”),
Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification
and status of third country nationals or stateless persons as refugees or as persons
who otherwise need international protection and the content of the protection
granted (“the Qualification Directive”) and Directive 2005/85/EC of 1 December
2005 on minimum standards on procedures in Member States for granting and
withdrawing refugee status (“the Procedures Directive”).
3. Article 39 of the Procedures Directive requires Member States to “ensure that
applicants for asylum have the right to an effective remedy before a court or tribunal,
against … a decision taken on their application for asylum”.
4. The main provisions of domestic law regarding challenges to asylum
decisions are in the Nationality, Immigration and Asylum Act 2002 (“NIAA”). The
provisions applicable in these cases are those contained in that Act as it was prior to
the Immigration Act 2014. In the form with which we are concerned, section 82
gives a general right of appeal to the First-tier Tribunal (Immigration and Asylum
Chamber) from an “immigration decision” as defined in section 82(2). This includes
a refusal of leave to enter the UK; a refusal to vary a person’s leave to enter or remain
if the result is that the person has no leave to enter or remain; or a decision to remove
them. Additionally, section 83 (as amended by section 26(3) of the Asylum and
Immigration (Treatment of Claimants, etc) Act 2004) provides:
“(1) This section applies where a person has made an asylum claim
and –
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a) his claim has been rejected by the Secretary of State, but
b) he has been granted leave to enter or remain in the United
Kingdom for a period exceeding one year (or for periods exceeding
one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum
claim.”
(Section 82 was substantially amended and section 83 was repealed by section 15 of
the Immigration Act 2014, which came into force, subject to various savings, on 20
October 2014.)
5. Lindblom J explained in his judgment in TN’s case, [2011] EWHC 3296
(Admin) at para 22, the reason given by the government, when introducing section
83, for confining it to cases where an unsuccessful applicant for asylum is given
leave to remain for more than a year. The reason was that in circumstances where a
person arrives from a country in turmoil, and their claim for asylum is rejected, but
it is not immediately safe or practicable to return them, they will be given leave to
remain for a short period with a view to reconsidering at the end of that period
whether the situation has become sufficiently stable for it to be possible to return
them. Kosovo was given as an example. If at the end of the period of leave there is
a refusal to extend it, the person concerned will have an immediate right of appeal
under section 82 against the refusal and against any removal decision. The likely
effect of providing an earlier right of appeal under section 83 would be to clog up
the appeal system before it became necessary for their appeals to be heard.
6. It has long been the policy of the government not to return an unaccompanied
asylum seeking child (“UASC”) unless the respondent is satisfied that there are
proper reception arrangements in the country to which they are to be removed.
Under section 55 of the Borders, Citizenship and Immigration Act 2009 the
respondent has a duty, in summary, to ensure that any of her functions in relation to
immigration, asylum or nationality are discharged having regard to the need to
safeguard and promote the welfare of children who are in the UK. Statutory
guidance issued under that section, “Every Child Matters” (November 2009), para
2.7, requires the Border Agency to act in accordance with principles which include
the following:
“In accordance with the UN Convention on the Rights of the Child the
best interests of the child will be a primary consideration (although
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not necessarily the only consideration) when making decisions
affecting children. …
Children should be consulted and the wishes and feelings of children
taken into account wherever practicable when decisions affecting
them are made, even though it will not always be possible to reach
decisions with which the child will agree.”
7. The respondent’s published guidance on Processing an Asylum Application
from a Child states at para 17.7:
“Discretionary Leave under UASC Policy
The UK Border Agency has a policy commitment that no
unaccompanied child will be removed from the United Kingdom
unless the Secretary of State is satisfied that safe and adequate
reception arrangements are in place in the country to which the
child is to be removed.
Where:-
the child does not qualify for asylum or HP [humanitarian
protection] or otherwise under the general DL policy, and;
we are not satisfied that the child will be able to access adequate
reception arrangements in the country to which they will be
removed;
the child should normally be granted DL for three years or, with
effect from 1 April 2007, until they are 17.5 years of age, whichever
is the shorter period. This applies in all cases except where stated
otherwise in country specific operational guidance notes (OGN).”
Paragraph 17.8 states:
“Best interests and duty under section 55 of the Borders, Citizenship
and Immigration Act 2009.
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The availability of safe and adequate reception arrangements is only
one factor to consider in deciding on whether the person should be
granted Discretionary Leave under the UASC policy. Full account
also needs to be given to the following:
the best interests of the child must be taken into account as a
primary consideration in the decision; and
the duty to have regard to the need to safeguard and promote
the welfare of the child in accordance with section 55 of the
Borders, Citizenship and Immigration Act 2009 and the
statutory guidance that accompanies it (“Every Child Matters”
…).
…
The best interests of a child, whilst a primary consideration, is not the
sole consideration when considering whether a child should be granted
leave to remain or return to the country of origin. Other factors,
including the need to control immigration, are also relevant.
In some cases, it may be reasonably clear that the child’s best interests
may be served by returning to the country of origin – for example
where the family has been traced and it is clear that the return
arrangements can be made direct to parents.
In other cases, the decision on whether to return will be a matter of
making a careful assessment of the child’s best interests and balancing
those interests against the wider public interest of controlling
immigration.”
8. In the case of UASCs from Afghanistan whose applications for asylum are
rejected, it has been the respondent’s settled practice at all relevant times to grant
them discretionary leave to remain until they reach the age of 17 years six months.
Whether the period of leave exceeds one year will therefore depend on the age of
the individual child.
9. Family tracing is one aspect of concern for an unaccompanied child’s
welfare. The Reception Directive lays down minimum standards for the reception
of asylum seekers in Member States: article 1. Chapter IV (articles 17 to 20) contains
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provisions for protecting the welfare of persons with special needs. Article 19 is
concerned with unaccompanied minors. Article 19.1 requires the host Member State
to ensure that the minor is represented by “legal guardianship”, or by an organisation
which is responsible for the care and well-being of minors, or by another appropriate
organisation. Article 19.2 requires the placement of UASCs, from the moment that
they are admitted to the territory until they are obliged to leave, with adult relatives,
or with a foster-family, or in accommodation centres with special provisions for
minors, or in other accommodation suitable for minors. Article 19.3 provides:
“Member States, protecting the unaccompanied minor’s best interests,
shall endeavour to trace the members of his or her family as soon as
possible. In cases where there may be a threat to the life or integrity
of the minor or his or her close relatives, particularly if they have
remained in the country of origin, care must be taken to ensure that
the collection, processing and circulation of information concerning
those persons is undertaken on a confidential basis, so as to avoid
jeopardising their safety.”
The importance of the second sentence cannot be overstressed. Recognising the
potential delicacy and sensitivity of the problem, article 19.4 provides:
“Those working with unaccompanied minors shall have had or receive
appropriate training concerning their needs, and shall be bound by the
confidentiality principle as defined in the national law, in relation to
any information they obtain in the course of their work.”
10. The only reference to family tracing in the Qualification Directive is in
Chapter VII, which deals with the content of international protection, ie the rights
of those who have refugee status or are entitled to humanitarian protection, rather
than the process of determining whether they qualify for such protection. Article
30.1 requires Member States, as soon as possible after the granting of refugee status
or subsidiary protection status, to take the necessary measures to ensure the
representation of unaccompanied minors by legal guardianship, or by an
organisation responsible for the care and well-being of minors, or by any other
appropriate representation including that based on legislation or court order. The
rest of article 30 in effect echoes article 19 of the Reception Directive.
11. The Procedures Directive lays down minimum standards on procedures in
Member States for granting and withdrawing refugee status: article 1. Article 17
contains certain provisions about unaccompanied minors (essentially to ensure that
they are properly represented, properly informed and that their best interests are
taken into account in the process as a primary consideration), but the Procedures
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Directive makes no mention of family tracing as part of the process for determining
the application.
12. Article 19.3 of the Reception Directive was implemented in domestic law by
regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 (SI
2005/7). Regulation 6(1) provides:
“So as to protect an unaccompanied minor’s best interests, the
Secretary of State shall endeavour to trace the members of the minor’s
family as soon as possible after the minor makes his claim for
asylum.”
Regulation 6(2) provides:
“In cases where there may be a threat to the life or integrity of the
minor or the minor’s close family, the Secretary of State shall take
care to ensure that the collection, processing and circulation of
information concerning the minor or his close family is undertaken on
a confidential basis so as not to jeopardise his or their safety.”
Facts
13. TN travelled to the UK in August 2010 in the back of a lorry. On 8 September
he was arrested while working illegally and was put into accommodation provided
by Birmingham City Council social services. Two days later he applied for asylum.
The basis of his claim was that in July 2009 two paternal uncles, who were members
of the Taliban, visited the home where TN lived with his parents, two sisters and
two younger brothers, and asked his father’s permission for him to join the Taliban.
His father refused. After the visit it was decided that TN should leave Afghanistan.
His father arranged for him to escape with an agent in October 2009. He said that
since his arrival in the UK he had not had any contact with his family, but he feared
that if he returned to Afghanistan he would be killed by his paternal uncles because
of his refusal to join the Taliban.
14. On 12 November 2010 the respondent rejected TN’s application but, in
accordance with her published Asylum Policy Instruction on Discretionary Leave,
she granted him leave to enter and remain in the UK until the age of 17 years six
months. His agreed date of birth is 1 January 1994, and the period of leave was
therefore eight months.
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15. On 14 February 2011 TN began judicial review proceedings claiming a
declaration that sections 82 and 83 of NIAA are incompatible with his right under
article 39 of the Procedures Directive to an effective remedy before a court or
tribunal against the decision made in his asylum application, and compensation. His
claim was dismissed by Lindblom J in a comprehensively detailed judgment, which
was upheld by the Court of Appeal (Maurice Kay, V-P, and Beatson and Briggs LJJ)
[2013] EWCA Civ 1609, [2014] 1 WLR 2095. TN’s case now comes before this
court on appeal from that decision.
16. Separately, on 29 June 2011 TN applied to extend his discretionary leave by
an application for humanitarian protection. He repeated his claim to be at risk if
returned to Afghanistan. Humanitarian protection is leave granted under the
Immigration Rules ((HC 395), paras 339C-Q) to a person who is in the UK, does
not qualify for refugee status and in respect of whom substantial grounds have been
shown for believing that he or she would face a real risk of suffering serious harm
in the country of return. It fulfils the UK’s obligation to provide such persons with
subsidiary protection under the Qualification Directive, as well as protection under
articles 2 and 3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
17. On 29 September 2011 the respondent sent a family tracing pro forma for
TN’s completion in order to assist in tracing his family members. It was completed
by him on 25 October 2011. In it he stated that he had been in contact with the British
Red Cross, who had taken details of his family and village, but they had not been
able to locate any members of his family. He said that before leaving Afghanistan
his parents were living in Mohammad Agha district, but that since leaving
Afghanistan he had not had any contact with them and that he did not know where
they were.
18. On 8 November 2011 the respondent refused to extend TN’s discretionary
leave. He appealed to the First-tier Tribunal and his appeal was dismissed by FTTJ
Camp, but that decision was set aside in the Upper Tribunal by deputy UTJ Juss in
a determination dated 30 August 2012. UTJ Juss held that the First-tier Tribunal’s
decision was flawed by reason of a number of matters including the failure of the
respondent to comply with her tracing duty. The effect of the Upper Tribunal’s order
was that the respondent must now re-take her decision on TN’s application. She is
waiting for the outcome of this appeal before doing so.
19. MA arrived in the UK on 27 July 2009. He was provided with
accommodation by Birmingham City Council social services on 30 July and claimed
asylum on 6 August. He claimed to be 13 years old but was assessed to be aged 16
and was given a notional birth date of 1 January 1993. He said that his father was a
member of the Taliban and used to be away for lengthy periods. MA was uneducated
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and worked as a shepherd. His claimed that his elder brother was killed in an
explosion cause by American forces and that a few months later his father was taken
away by the government. His mother and maternal uncle told him that it would not
be safe for him to remain in Afghanistan as the government would come after him
even though he was only 13 years of age. He was subsequently told that his father
had been killed. Arrangements were made with an agent for him to leave
Afghanistan. He and his mother had lived in a village in Babrak District, Khost, but
he had no contact with her after leaving the village and he did not know her
whereabouts. His uncle was a shepherd in Khost and had no permanent address.
20. On 23 November 2009 the respondent rejected MA’s application but granted
him discretionary leave until 1 July 2010, when he would be aged 17 years six
months. On 26 June 2010 MA applied to extend his period of leave on grounds of
humanitarian protection. The application was refused and MA appealed to the Firsttier Tribunal.
21. MA gave oral evidence in support of his claim. His account was disbelieved
by IJ Sangha and his appeal was dismissed. On appeal to the Upper Tribunal, deputy
UTJ Hall described it as a claim to be entitled to refugee status or humanitarian
protection or protection under the European Convention. He found that IJ Sangha’s
decision contained an error of law because of an absence of adequate findings but
he re-made the same decision. He too heard oral evidence from MA and disbelieved
his account.
22. MA was given permission to appeal to the Court of Appeal on the issues
whether he had been deprived of a significant chance of establishing refugee status
by the respondent’s failure to endeavour to trace his family members, and whether
section 83 of NIAA denied him the opportunity of establishing refugee status as an
unaccompanied minor. His appeal was heard by the Court of Appeal jointly with
TN’s appeal and was dismissed.
23. AA travelled to the UK in the back of a lorry on an unknown date in mid
2011. Following arrest by the police, he claimed asylum on 13 October 2011.
According to his account, his father had been a known Taliban commander in
Nangarhar Province in eastern Afghanistan and was killed in April or May 2011. He
then came under pressure both from the local Taliban, who wanted him to become
a suicide bomber to avenge his father’s death, and from the police because it was
common for sons to follow their father’s path. With his mother and younger brother
he left their family home in the village of Baghak, which was sold, to join his
grandfather in the village of Jokan. But he said that this was still not safe, because
they had further visits from the Taliban and the police, and so his grandfather
arranged for him to leave the country.
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24. On 19 February 2012 the respondent wrote to AA’s solicitors asking whether
they required assistance in tracing AA’s family and enclosing a family tracing pro
forma. On the following day the Secretary of State rejected AA’s asylum claim but
granted him discretionary leave until the age of 17 years six months. His accepted
date of birth was 29 December 1995 and so the period of leave was for more than a
year.
25. AA appealed to the First-tier Tribunal and gave oral evidence but the judge,
IJ Hodgkinson, disbelieved his core account and dismissed his appeal. That decision
was upheld in the Upper Tribunal by deputy UTJ Drabu CBE.
26. AA was given permission to appeal to the Court of Appeal on the question of
the respondent’s failure to take steps to trace his family members. The appeal was
dismissed for reasons given in a judgment by Underhill LJ, with which McFarlane
and Beatson LJJ agreed: [2013] EWCA Civ 1625.
Compatibility of section 83 of NIAA with article 39 of the Procedures Directive
27. TN and MA were both aged over 16 years six months at the time when their
applications for asylum were rejected and they were given discretionary leave to
remain until they reached 17 years six months. In the interim period they had no
statutory right to appeal to the First-tier Tribunal and the only form of legal
challenge open to them was to bring judicial review proceedings (a course taken by
TN but not MA). It is their case that they were thereby deprived of an “effective
remedy” in breach of article 39.
28. This argument was rejected by the Court of Appeal unanimously but in part
for different reasons. Maurice Kay V-P accepted the respondent’s submission that
judicial review was an effective remedy within the meaning of the Procedures
Directive. He was not persuaded by the respondent’s alternative submission that the
availability of an appeal to the First-tier Tribunal under section 82 at the end of the
period of discretionary leave was itself an effective remedy. He did not consider that
a delayed remedy would necessarily be as effective as an immediate remedy.
29. Beatson LJ agreed that judicial review was, in the circumstances, an effective
remedy which satisfied the requirements of article 39. He also accepted the
respondent’s alternative submission, as to which he said:
“31. I do not consider that the short delay before claimants such as
these would be able to appeal against an adverse decision by the
Secretary of State made after their eighteenth birthday means that the
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totality of the remedy they have is not ‘an effective remedy’ within
article 39. As was stated in Samba Diouf v Ministre du Travail, de
l’Emploi et de l’Immigration (Case C-69/10) [2012] CMLR 204], the
Procedures Directive lays down minimum standards. Article 39
requires Member States to ensure that applicants have the right to ‘an
effective remedy’, not that they should have the most effective
remedy. The suggestion that a delayed remedy by way of appeal
would not, in principle, suffice because … it would not necessarily be
as effective as an immediate one would have been appears to require
a higher threshold than ‘an effective remedy’.
32. I also consider that to regard the right of appeal after the short
delay envisaged in cases such as these as inadequate and not an
‘effective remedy’ could undermine the legislative decision to restrict
the right of appeal under section 83 of the Nationality, Immigration
and Asylum Act 2002 to those who have been given leave to enter for
more than 12 months. That policy was not criticised by this court in
FA (Iraq) v Secretary of State for the Home Department [2010] 1
WLR 2545. It serves the useful purpose of helping to avoid
duplication between decision-making at first instance and on appeal
in cases in which the Secretary of State will be reconsidering a
person’s position in the near future.
33. It may be the case that delaying an appeal until after a person’s
eighteenth birthday would mean that it would not be necessary for the
best interests of that person as a child to be a primary consideration in
the decision-making process pursuant to section 55 of the Borders,
Citizenship and Immigration Act 2009. But such applicants will, in
the light of KA (Afghanistan) v Secretary of State for the Home
Department [2013] 1 WLR 615, be treated as young people and their
whole history will be considered. I am concerned that to regard the
fact that an immediate appeal would be an appeal by a child whereas
an appeal within what would otherwise be a reasonable period would
be an appeal by a young adult as a reason for finding the remedy to be
inadequate and not an effective remedy under article 39 would be
undesirable from a policy point of view.”
30. Briggs LJ agreed that judicial review was an effective remedy, and, if
necessary, he said that he would have been inclined like Beatson LJ to accept the
respondent’s alternative submission, but he preferred not to express a final view.
31. The Strasbourg court has consistently accepted that judicial review is capable
of satisfying the requirement of providing an effective remedy within the meaning
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of article 13 of the European Convention in the context of asylum cases: Vilvarajah
v United Kingdom (1991) 14 EHRR 248, para 126, D v United Kingdom (1997) 24
EHRR 423, para 71, and Bensaid v United Kingdom (2001) 33 EHRR 205, para 56.
Those cases undoubtedly establish an important general principle, but I regard it as
a mistake to concentrate on the remedy of judicial review in the particular
circumstances that Parliament has established a statutory procedure under NIAA for
granting and withdrawing refugee status. In general, a right of appeal to an
immigration judge, involving a full factual review, arises at the point when an
applicant would otherwise be liable to removal. Additionally, section 83 enables an
applicant to appeal at a time when he is not at risk of removal, despite the rejection
of his claim, if he has been given discretionary leave to remain for over a year. Such
an applicant is in the position that his case will not be reviewed for some time, but
his longer term outlook is uncertain. Does the scheme satisfy the requirement of
providing “an effective remedy” for an applicant who is refused asylum but given
leave to remain for a matter of months?
32. I agree with Beatson LJ that the answer is yes for essentially the reasons
which he gave. The right of appeal of the person to the tribunal is not immediate but
is still effective. The deferment is not for long and there are understandable reasons
for it. In a situation where crisis conditions in a particular country lead to a surge of
asylum applications resulting in a large number of applicants being granted short
term leave to remain, it is not in the public interest or the interest of applicants for
tribunals to become clogged with cases which are due to be reviewed by the
respondent before long in any event.
33. The point is made that TN and MA were deprived of the chance of
establishing that they were entitled to refugee status as members of a particular
vulnerable social group, namely minors who were effectively orphans. But as
Maurice Kay LJ observed in KA (Afghanistan) v Secretary of State for the Home
Department [2012] EWCA Civ 1014, [2013] 1 WLR 615, para 18, when it comes
to the kinds of risk such as the forcible recruitment or the sexual exploitation of
young males, “persecution is not respectful of birthdays”. And if, however
unrealistically, the relevant social group and attendant risk are identified in a way
which is strictly age specific, any corresponding entitlement to refugee status would
be time limited in the same way.
34. If the statutory scheme failed to provide an effective remedy, it would be
necessary to consider whether the availability of judicial review made good the
deficit, but that situation does not arise.
35. TN and MA also relied on article 47 of the Charter of Fundamental Rights of
the European Union, which provides:
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“Everyone whose rights and freedoms guaranteed by the law of the
Union are violated has the right to an effective remedy before a
tribunal in compliance with the conditions laid down in this Article.”
A denial of refugee status to an applicant does not, as such, concern a right or
freedom guaranteed under the European Convention (A v Netherlands (2010) 59
EHRR 1098), and in relation the law of the Union the argument under article 47
adds nothing to the argument under the Procedures Directive.
Family tracing: the issues
36. The appellants all contend that the respondent’s decision to reject their
asylum claims was vitiated by her failure to carry out her tracing duty and, in
particular, that they were prejudiced by the failure because proper inquiries may
have produced evidence to support their accounts which the respondent disbelieved.
37. Mr Stephen Knafler QC on behalf of AA argued that the only lawful
conclusion open to the tribunal, applying corrective justice, was to find that AA was
entitled to asylum (or make findings which required the respondent to grant
“corrective leave”) and that this court should so hold. Alternatively, he submitted
that the case should be remitted to the Upper Tribunal, which should (a) decide the
case on the facts as they were at the time of the respondent’s decision and (b) apply
a presumption that AA was credible, since he had cooperated in providing all the
information relevant to tracing which he had been asked to provide and the
respondent had failed to carry out inquiries which could well have corroborated his
account. The Upper Tribunal should only reject his appeal if it was satisfied that his
claim, notwithstanding its presumptive credibility, was clearly not capable of belief.
Mr Becket Bedford on behalf of TN and MA also submitted that the proper remedy
for the respondent’s breach of duty with regard to family tracing was for the tribunal
to have held that they were entitled to asylum.
38. Before considering the reasoning of the Court of Appeal in the present cases
it is necessary to refer to some of its earlier decisions. In Ravichandran v Secretary
of State for the Home Department [1996] Imm AR 97 the Court of Appeal held that
asylum appeals should be determined by reference to the position at the time of the
appellate decision rather than by reference to the factual situation at the time of the
original decision against which the appeal was brought. This makes good sense and
the general policy has not been doubted. The subject matter is whether the applicant
requires refugee protection. Hearings before the First-tier Tribunal involve
immigration judges receiving evidence and making up their own minds about the
facts. As Simon Brown LJ observed in Ravichandran, at p 112, this may fairly be
regarded as an extension of the decision-making process. Moreover, as he also
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pointed out, immigration judges build up a body of knowledge, and it would not
serve the public interest if they were required to ignore matters which they know to
have happened after the date of the Secretary of State’s decision. The situation might
have changed for the better or for the worse. Similar considerations apply, at least
to some extent, to the Upper Tribunal. If it finds that there has been a material error
by the First-tier Tribunal it will ordinarily re-make the decision and for that purpose
may well hear fresh oral evidence (as in the case of MA). And the point about the
judges’ constantly developing bank of knowledge is equally applicable to the Upper
Tribunal. It would not make sense for the First-tier Tribunal to take into account its
knowledge about the situation at the time of its decision, but for the Upper Tribunal
to have to ignore its more recent knowledge.
39. In R (Rashid) v Secretary of State for the Home Department [2005] EWCA
744, [2005] Imm AR 608, the Court of Appeal created in effect an exception to the
Ravichandran principle. The facts were unusual. The claimant was an Iraqi Kurd.
He came to the UK during the regime of Saddam Hussein and claimed asylum. In
December 2001 his claim was rejected on the ground that internal relocation was
available to him within the Kurdish Autonomous Zone (“KAZ”). The decision was
upheld by an immigration adjudicator and in July 2002 he was refused permission
to appeal to the Immigration Appeal Tribunal. In February 2003 he was given
permission to apply for judicial review to argue whether the KAZ was an entity
capable of providing the necessary protection for the purposes of the Refugee
Convention. The same point was due to be considered by the Court of Appeal in the
following month in appeals brought by M and A, and Rashid’s judicial review claim
was ordered to be listed after the hearing of those appeals. On 6 March 2003 the
Treasury Solicitor wrote to M and A’s solicitors, saying that the Secretary of State
was not as a matter of policy at that time relying on the availability of relocation to
the KAZ, and they were granted refugee status. The policy in question had existed
from October 2000, but not all Home Office case workers were aware of it and it
had not been consistently applied. Rashid’s solicitors learned about the policy as a
result of the Treasury Solicitor’s letter to M and A’s solicitors, and on 12 March
2003 they wrote asking for Rashid’s case to be reconsidered. The Treasury Solicitor
replied that he was aware of cases stacked behind those of M and A, and that
Rashid’s case had been sent back to a case worker for reconsideration. In the same
month military action in Iraq began, and on 21 March it was announced that all
decision making on claims by Iraqi nationals had been suspended. At the end of the
war the Secretary of State adopted a new policy, and Rashid’s claim was rejected on
the ground that after the collapse of Saddam Hussein’s regime he was not at risk.
40. On Rashid’s application for judicial review, the Court of Appeal held that he
was entitled to unconditional leave to remain in the UK. The Secretary of State relied
on the Ravichandran principle. The leading judgment was given by Pill LJ, with
whom May LJ agreed. He based his decision on the principle that an abuse of power
called for the court to “intervene to give such relief as it properly and appropriately
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can” (para 37). He found that there was an abuse of power because there was
conspicuous unfairness in Rashid’s treatment. After “startling and prolonged”
failures of the Home Office (para 13), the correct policy emerged in the cases of M
and A. Rashid’s case had been stacked behind them, the issues were identical and
fairness required that the same treatment be given to him as to them. Pill LJ
recognised that the court could not declare that Rashid was entitled to be granted
refugee status, as M and A had been, because that is a status conferred on the basis
of criteria prescribed in an international treaty and should not be conferred if the
criteria are not satisfied at the time of the decision. But he held that the court could
and should declare that Rashid was entitled to indefinite leave to remain. This, he
said, provided a remedy for the unfairness and was the appropriate response in the
circumstances.
41. In a concurring judgment Dyson LJ said that the case presented the stark
question which of two considerations should prevail: justice and fairness, which
suggested that the claimant should not be returned to Iraq, or the Ravichandran
principle. He accepted that to hold the Secretary of State to an earlier policy which
had been withdrawn by the final stage of the decision making process would infringe
the principle established by Ravichandran, but this consideration was outweighed
by the conspicuous unfairness which there had been.
42. The reasoning in Rashid has been criticised. In R (S) v Secretary of State for
the Home Department [2007] EWCA Civ 546, [2007] Imm AR 781, para 39,
Carnwath LJ described the reasoning as “not altogether convincing”, and that it
appeared to turn “abuse of power” into a factor able to achieve remedial results not
open to the courts in other instances of illegality. He also had doubts about the
weight placed by the court on the Department’s conduct. The court’s proper sphere
is illegality, not maladministration. If the earlier decision to refuse the asylum
application was unlawful, it was the unlawfulness rather than the cause of it (whether
bad faith or muddle) which justified the court’s intervention and provided the basis
for the remedy. Having made those criticisms, Carnwath LJ said that the court’s task
was to try to extract a principled basis for the decision, which must be found in the
majority judgment of Pill LJ. Although Pill LJ appeared to have expressed the result
as an exercise of the court’s remedial discretion, the court had no power to grant
indefinite leave to remain; the power and discretion rested with the Secretary of
State, and it was not open to the court to assume that function. The principled basis
for the decision must be that it was open to the court to determine that a legally
relevant factor in the exercise of the discretion was the correction of injustice, and
that in an extreme case the court could find that the unfairness and the remedy were
so plain that there was only one way in which the Secretary of State could exercise
his discretion.
43. In DS (Afghanistan) v Secretary of State for the Home Department [2011]
EWCA Civ 305, [2011] INLR 389, the Court of Appeal remitted an asylum claim
Page 16
by an unaccompanied minor to the Upper Tribunal because no consideration had
been given to the respondent’s duty to consider the appellant’s best interests as
required by section 55 of the 2009 Act. The respondent had also made no attempt to
trace his family. As to that aspect, Lloyd LJ said in his judgment with which Rimer
LJ agreed:
“68. The obligation to endeavour to trace under regulation 6 applies
when a child has made an asylum application, but the application is to
be determined on its merits, whether or not any steps have been taken
pursuant to the obligation. To that extent I would accept the
submission … for the respondent that the obligation to endeavour to
trace is distinct from the issues that arise on an application for asylum.
If steps have been taken pursuant to the obligation under regulation 6,
the results, if any, may be relevant to the determination of the asylum
application, depending on what the issues are on that application. In
fact, no attempt to trace was made by UK Border Agency in the
present case. All that was done was to draw to the attention of the
applicant or his foster carer the facilities of the Red Cross, with a view
to his attempting to trace his relatives through that agency. … It seems
to me that that failure is not, by itself, relevant to the determination of
the appellant’s asylum application. However, the Secretary of State is
still subject to the obligation, and steps ought now to be taken to
comply with that obligation.”
44. In KA (Afghanistan) v Secretary of State for the Home Department [2012]
EWCA Civ 1014, [2013] 1 WLR 615, the eight appellants came, unaccompanied,
from Afghanistan to the UK aged 15 or 16 and claimed asylum. Their applications
were refused and they were all granted discretionary leave until the age of 17½ in
accordance with the standard policy. Shortly before its expiry they applied for a
variation which was refused. Each appealed unsuccessfully to the First-tier Tribunal.
Two of the appeals were heard while the appellants were still minors. All appealed
to the Upper Tribunal, and their appeals were heard and dismissed after they had
reached the age of 18. In each case the Upper Tribunal approached the assessment
of risk on the basis of the facts at the time of the hearing before it, including the fact
that the appellant had recently reached that age. They were given leave to appeal to
the Court of Appeal on the grounds that the respondent had failed in her tracing duty
and that, although they had now reached their majority, the illegality should be
remedied by the grant of leave to remain as the necessary corrective action on the
Rashid principle. In any event it was submitted that the Upper Tribunal was wrong
to apply the general rule established by Ravichandran.
45. The judgment of the Court of Appeal was given by Maurice Kay LJ, with
whom Hooper and Moore-Bick LJJ agreed. He accepted that on the evidence there
was a systemic breach of the respondent’s duty to endeavour to trace. He described
Page 17
it as a complicated question whether this gave rise to the Rashid principle, about
which he agreed with Carnwath LJ’s analysis in S. It was not a simple matter of the
systemic breach entitling the appellants to have their appeals allowed with remittal
to the respondent to consider grants of leave to remain, but nor did the case admit of
the simple analysis that the breach was irrelevant at the time of the hearings by the
Upper Tribunal on the Ravichandran principle. The burden of proof was on the
claimant to establish not only the failure to discharge the duty to endeavour to trace
but also that he was entitled to the relief sought. There was, he said, a hypothetical
spectrum. He continued (para 25):
“At one end is a claimant who gives a credible and cooperative
account of having no surviving family in Afghanistan or 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 time his appeal
is considered by the tribunal, he may, depending on the totality of the
established facts, have the basis of a successful appeal by availing
himself of the Rashid/S principle and/or section 55 by reference to the
failure of the Secretary of State to discharge the duty to endeavour to
trace. In such a case the Ravichandran principle would not be an
insurmountable obstacle.”
46. I do not find this easy to follow. If the applicant’s account is accepted as
credible, it is difficult to see why the fact that he has passed the milestone of his 18th
birthday should result in his appeal failing in circumstances where it would have
succeeded if he had been only 17 years 11½ months old. In that sense I see why the
Ravichandran principle would not be an obstacle. But I do not see precisely how the
Rashid principle would apply or what would be the evidential significance of the
respondent’s breach of duty.
47. Maurice Kay LJ went on:
“At the other end of the spectrum is a claimant whose claim to have
no surviving family in Afghanistan is disbelieved and in respect of
whom it is found that he has been uncooperative so as to frustrate any
attempt to trace his family. In such a case, again depending on the
totality of established facts, he may have put himself beyond the bite
of the protective and corrective principle. This would not be because
the law seeks to punish him for his mendacity but because he has failed
to prove the risk on return and because there would be no causative
link between the Secretary of State’s breach of duty and his claim to
protection.”
Page 18
48. Again it is not easy to identify the necessary causative link between the
breach of duty and the claim for protection, but it cannot be the absence of the result
of family tracing in assessing the credibility of the claimant. What is clear in Maurice
Kay LJ’s analysis is that the assessment of the credibility of the claimant’s account
of not having available family protection must necessarily be made on the evidence
available to the tribunal, without a presumption in the claimant’s favour.
49. The court allowed one of the eight appeals, on other grounds, and gave
directions in relation to the remaining seven appellants for them to lodge
supplemental skeleton arguments setting out how their case was put in in the light
of the way in which Maurice Kay LJ had mapped out the general principles.
50. The appeals came back before a differently constituted court (Maurice Kay
VP, Jackson LJ and Sir Stanley Burnton). The second stage of their appeals is
reported under the title EU (Afghanistan) v Secretary of State for the Home
Department [2013] EWCA Civ 32, [2013] Imm AR 496.
51. Sir Stanley Burnton gave the leading judgment, with which the other
members of the court agreed. He was unsparing in his criticism of Rashid (para 6):
“I have to say that, like the Court of Appeal in S, I have great
difficulties with the judgments in Rashid. In cases that are concerned
with claims for asylum, the purpose of the grant of leave is to grant
protection to someone who would be at risk, or whose Convention
rights would be infringed, if he or she was returned to the country of
nationality. Of course, breaches of the duty of the Secretary of State
in addressing a claim may lead to an independent justification for
leave to remain, of which the paradigm is the article 8 claim of an
asylum seeker whose claim has not been expeditiously determined,
with the result that he has been in this country so long as to have
established private and family life here. But to grant leave to remain
to someone who has no risk on return, whose Convention rights will
not be infringed by his return, and who has no other independent claim
to remain here (such as a claim to be a skilled migrant), is to use the
power to grant leave to remain for a purpose other than that for which
it is conferred. In effect, it is to accede to a claim to remain here as an
economic migrant. The principle in Rashid has been referred to as “the
protective principle”, but this is a misnomer: the person relying on this
principle needs to do so only because he has been found not to be in
need of protection. I do not think that the court should require or
encourage the Secretary of State to grant leave in such circumstances
either in order to mark the court’s displeasure at her conduct, or as a
sanction for her misconduct.”
Page 19
52. Sir Stanley Burnton acknowledged that the respondent’s breach of her tracing
duty could have evidential relevance, because in assessing the risk to a claimant on
return to his or her country of nationality the lack of evidence from the respondent
as to the availability of familial support was a relevant factor. The failure to
endeavour to trace a claimant’s family might also result in a claimant, who had lost
contact with his family, putting down roots here and establishing an article 8 claim.
But Sir Stanley Burnton emphasised the need for the claimant to establish some
causative relevance of the respondent’s breach to the protection claimed.
53. On this approach, it is not for the tribunal or the court, in considering a claim
for asylum, to try to compensate the claimant for some past breach of duty which
does not affect the question whether he is presently exposed to a risk entitling him
to the protection of the Refugee Convention (or to humanitarian protection). The
consequences of a breach of duty by the respondent may be a relevant factor in the
assessment of present risk, because of the possible effect on the nature and quality
of the available evidence. But that is different from exercising some form of
remedial jurisdiction entitling the tribunal or court to order that the claimant should
have indefinite leave to remain, on account of the respondent’s breach of duty, in a
case where the evidence does not establish the present existence of a right to refugee
status or humanitarian protection.
54. Sir Stanley Burnton referred to two other points of general application. First,
he added to the court’s comments in KA (Afghanistan) v Secretary of State for the
Home Department about the boundary line between minority and adulthood that in
many cases the date of birth of 1 January (in a particular year) given to an applicant
after an age assessment is notional. The fact that the true date of birth is unknown is
an additional reason for not regarding the supposed date of majority as necessarily
changing the assessment of risk.
55. Secondly, Sir Stanley Burnton saw force in a point made by the respondent
that UASCs who arrive in this country from Afghanistan have done so as a result of
someone, presumably their families, paying for their fare and/or for an agent to
arrange their journey. The costs are likely to have been considerable, relative to the
wealth of an average Afghan family. They are unlikely to want to cooperate with an
agent of the respondent for the return of their child to Afghanistan.
56. The individual appeals were dismissed. EU’s case was typical. The
immigration judge disbelieved his account of how and why he came to leave
Afghanistan and his claim to have lost contact with his family. The Upper Tribunal
treated the respondent’s failure to endeavour to trace his family as irrelevant. The
Court of Appeal held that it was right to do so in view of the immigration judge’s
rejection of his evidence about losing contact with his family.
Page 20
57. In the present appeals by TN and MA, Maurice Kay V-P affirmed the general
principle established in Ravichandran that an appellate tribunal considers an asylum
case on the basis of the latest evidence and material, including any which postdates
the original decision. He described Ravichandran as “not a one-way street” because
the most recent material may enhance an applicant’s case just as it may undermine
it. It was “an even-handed principle, which ensures that, when asylum cases are
considered on appeal, those currently at risk on return to their countries of origin are
not returned and those who are not or are no longer at such risk are not accorded a
status which they do not merit” (paras 25-26).
58. He recognised that “the concept of corrective relief which was considered in
KA is an exception because it contemplates relief on the basis of a previous error or
breach of obligation which has lost current significance because of the passage of
time (for example, attaining majority) or a change of policy” (para 24).
59. He did not grapple with the conflict between a) the general principle by which
an appellate tribunal looks even-handedly at the position at the date of review, and
b) the exception by which the tribunal grants relief, to which the applicant is not
otherwise entitled, by reason of an error which has lost current significance. Nor did
he address the criteria for determining when the purported exception should apply,
apart from referring in general terms to a hypothetical spectrum of cases. He said
that in the case of MA, any assessment of his position on the KA hypothetical
spectrum was bound to be conditioned by the reasoned rejection of his evidence
about not having attempted to contact his family, and he described MA’s difficulties
in this respect as insurmountable. MA’s appeal was therefore dismissed. He said
nothing about TN’s position in this regard, because his case had been remitted to the
respondent.
60. In AA’s case, the respondent’s reasons for refusal letter stated:
“82. In light of findings in DS efforts have been made to establish a
method by which the Secretary of State can assist in locating the
families of unaccompanied asylum seeking children in Afghanistan.
Should you wish the UK Border Agency to make efforts to locate your
family, please fill in and return the tracing pro-forma as soon and
provide as much detail as possible in regards to all of your family in
Afghanistan to allow this to be explored.
83. It should be noted that the UK Border Agency is currently unable
to attempt to trace your family within Afghanistan. The Foreign and
Commonwealth Office has confirmed that there is no presence in
Page 21
Afghanistan that would currently be able to assist in conducting family
tracing in Afghanistan.”
61. In the Court of Appeal AA relied on a report by Mr Tim Foxley MBE, an
expert on political and social conditions in Afghanistan, which was admitted as
evidence without objection by the respondent. His overall conclusion was that a
blanket assertion that UKBA could not trace families in Afghanistan was not
sustainable. He recognised that there were significant security problems in
Nangarhar district. However, the British Embassy in Kabul had extensive local
contacts and for the purpose of family tracing it would be possible for embassy staff
to tap into links with the Afghan national government (Ministry of Refugees and
Repatriation), local government, the Afghan police or various NGOs operating in
Afghanistan.
62. A witness statement on behalf of the respondent described the methods by
which, in principle, the families of UASCs may be traced, and also the difficulties
of doing so in Afghanistan on account of the security situation (other than by
telephone or email, if the applicant provided the telephone number or email address).
63. Underhill LJ concluded that the respondent was in breach of the tracing duty
in her handling of AA’s case by a) not initiating the process earlier and b) not asking
sufficiently searching questions aimed at eliciting ways in which his family might
have been traced by “remote” means, that is, other than by trying to telephone or
email them. The second criticism is puzzling because Underhill LJ himself noted
that the effect of AA’s answers in interview, confirmed in his own witness statement,
was that he had given all the information that he could. In this court Mr Knafler
realistically accepted that there was nothing more which the respondent could have
hoped to glean from questioning AA, but he concentrated on the respondent’s failure
to pursue any of the avenues identified by Mr Foxley before reaching a decision
whether to accept the asylum claim.
64. Underhill LJ accepted that the tracing process must be treated as part of the
process of deciding the asylum claim and it was therefore right to consider what
evidence might have been elicited if the duty had been properly performed. On the
facts, he rejected the submission that if UKBA had asked the right questions from
the start, and if the respondent had established an effective system of tracing in
Afghanistan prior to 2012, there was a real prospect that information would have
been obtained that would have supported AA’s asylum claim. He concluded that
whatever tracing procedures were in place, the information available to the
respondent afforded no opportunity for remote tracing. Underhill LJ added that it
was AA’s own case that his family arranged for him to leave Afghanistan and come
to the UK, no doubt at considerable cost. They were very unlikely to want him to be
returned, and, even if it were possible to contact any member of his family, they
Page 22
would have a strong incentive to support his account of persecution. Any
corroboration from that source would therefore be of doubtful value.
65. Drawing the threads together, it was submitted in the present appeals on
behalf of MA and AA that
i) the tracing duty was an integral part of the decision making process;
ii) the Court of Appeal was wrong to find in each case that the breach of
duty was immaterial on the facts;
iii) the tribunal ought to have made a presumption of credibility in each
appellant’s favour;
iv) the tribunal and Court of Appeal ought not to have followed
Ravichandran but, applying Rashid, ought to have held that each appellant
was entitled to asylum or unconditional leave.
66. It was submitted on behalf of TN that the Upper Tribunal was right to allow
his appeal, but should have gone further and held that he was entitled to asylum or
unconditional leave, rather than remitting the matter to the respondent for a fresh
decision.
67. In a written intervention in AA’s case, the Office of the Children’s
Commissioner for England (“OCC”) submitted that:
i) the respondent is under a duty to assess the child’s best interests before
seeking to discharge any of her obligations, including the tracing obligation;
ii) the methods used in fulfilling the tracing obligation must take into
account the child’s wishes and feelings and the need for the child to give
informed consent to any family tracing process;
iii) no adverse credibility finding should be reached without an
assessment of the child’s ability to provide information or further information
for the purposes of family tracing;
Page 23
iv) the best interests assessment and the family tracing process should be
regarded as a necessary part of the search for a durable solution for the child
based on his or her own individual circumstances;
v) if an unaccompanied minor becomes 18 before a final decision on his
or her appeal, the duty to trace is still a component of the search for a durable
solution, that is, one which will last beyond their 18th birthday.
Analysis
68. I begin with section 55 of the 2009 Act and the statutory guidance issued in
Every Child Matters. Officials who discharge the respondent’s functions in relation
to immigration and asylum must take into account the best interests of a child as a
primary consideration when making decisions which affect them. Protection of the
child’s best interests provides the rationale for the respondent’s tracing obligation,
as regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005
explicitly recognises.
69. The OCC rightly emphasised that before any tracing process is embarked
upon the child must be properly consulted about his or her wishes. This is a
necessary part of considering the child’s best interests. There may be all sorts of
reasons why the child may not want any such process to be carried out, or may be
concerned about the way in which it is carried out, because of potential
consequences for the child, members of their family or others. Article 19.4 of the
Reception Directive requires that those working with unaccompanied minors shall
have had appropriate training.
70. I turn next to Ravichandran and Rashid. The principle in Ravichandran is
sound. As Simon Brown, LJ said in that case, on an asylum appeal the subject matter
is whether the appellant requires refugee protection. The function of the court is
quite unlike its function when adjudicating, for example, on a private law claim for
breach of contract or tort. A claimant who establishes that there has been a breach
of contract or tort is entitled to be put, so far as the court is able to do so, in the same
position as if the wrong had not been committed. In Ravichandran the court rightly
held that on an asylum appeal the question is one of present status: does the appellant
meet the criteria of the Refugee Convention or is he in need of humanitarian
protection?
71. I agree with the criticisms made of Rashid by Carnwath LJ in R(S) v Secretary
of State for Home Department and by Sir Stanley Burnton in EU (Afghanistan) v
Secretary of State for the Home Department. In Rashid the sloppiness of procedures
Page 24
in the Home Office resulted in the appellant being unfairly denied refugee status
when he applied for it; but refugee status is not bound to endure for ever. By the
time that his case reached the Court of Appeal the source of persecution in Iraq had
been overthrown, and the effect of the court’s decision was to give him a right which
he did not need for his personal protection. Because the Rashid exception to
Ravichandran lacks a satisfactory principle, it is also impossible to state its scope
with any degree of clarity. In KA (Afghanistan) v Secretary of State for the Home
Department Maurice Kay LJ (para 17) described it as a “complicated question”
whether the facts of the cases under consideration gave rise to the Rashid principle,
and the court struggled in its attempt to articulate what needed to be shown for the
principle to apply.
72. I would hold that the Ravichandran principle applies on the hearing of
asylum appeals without exception, and Rashid should no longer be followed. The
question whether the appellant qualifies for asylum status is not a question of
discretion. It is one which must be decided on the evidence before the tribunal or
court, and there is no legal justification for approaching that question with a
presumption that the appellant is credible arising from a failure of the respondent
properly to discharge her obligation in relation to family tracing. Discretionary leave
by definition involves a discretion, but it is a discretion which belongs to the
respondent and not to the court. The respondent must of course exercise her
discretion lawfully, with proper regard to any policy which she has established, but
I agree with Sir Stanley Burnton that it is not proper for a court to require the
respondent to grant unconditional leave to an appellant who would not be entitled to
such relief under current policy (or have a current right to remain in the UK on other
grounds, such as article 8), as a form of relief for an earlier error or breach of
obligation.
73. There remains the question how the tribunal should approach an asylum
appeal where the respondent has failed in her tracing obligation. If the appellant
believes that he may have been prejudiced, it would be open to him to ask the
respondent to attempt to carry out a tracing process and to ask the tribunal to adjourn
the appeal for that to be done. There would be force in the argument that it should
not make a difference whether the appellant has by then turned 18, since that would
not remove an obligation which had arisen under the Reception Directive and the
effects of which were intended to last beyond their minority (as the OCC has
submitted). However, in deciding whether it accepts the appellant’s account, the
tribunal must act on the evidence which it has. In that respect I agree with what was
said by Lloyd LJ in DS (Afghanistan) v Secretary of State for the Home Department
(set out at para 43 above). If the appellant has identified people who might be able
to confirm his account, but the respondent has not pursued that lead, the tribunal
might fairly regard the appellant’s willingness to identify possible sources of
corroboration as a mark of credibility, but this would be an evidential assessment
for the tribunal. There is no presumption of credibility.
Page 25
74. In MA’s case and AA’s case the appellant’s account was disbelieved by the
Upper Tribunal. I agree with the Court of Appeal’s rejection of the argument that
the Upper Tribunal should have allowed the appeals by reason of the respondent’s
breach of her tracing obligation. The tribunal was right to assess the case on the
evidence which it had. Neither of the appellants gave any information from which
their family could be traced, and the tribunal’s conclusion that their accounts lacked
credibility was properly open to it. As explained at para 18 above, the outcome of
TN’s appeal leaves a decision still to be made in his case by the respondent,
following the remission of his asylum claim by the Upper Tribunal.
75. I would dismiss the appeals.
