The Supreme Court looks set to hear a trio of Afghan asylum cases next week. The fact that AA (Afghanistan) (Appellant) UKSC 2014/0081 and TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 involve children does not detract from the truly macabre nature of the ongoing conflict in that country. A panel of justices consisting of Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Toulson will hear these important cases on 3 and 4 March 2015. The AA case, which concerns the extent of the tracing duty, is considered in this post and the TN and MA cases are explored in the next post. In AA, using the services of an agent arranged by his maternal grandfather, the appellant entered the UK in mid-2011 concealed in a lorry. He claimed asylum and contended that subsequent to the death of his father, said to be a Taliban commander in eastern Afghanistan’s Nangarhar province killed in April or May 2011, the local Taliban applied pressure and tried to force him to become a suicide bomber and to avenge his father’s death.
AA, who was given the notional date of birth of 1 January 1996, also claimed that the local police developed an interest in him because of their belief that he might aspire to follow in his father’s footsteps. AA, his mother and his younger brother relocated from their home in Baghak and joined his grandfather in a village called Jokan where it was decided that his safety required him to leave the country altogether. In the UK, AA’s asylum claim was refused but he was given leave until he reached 17½ years. The First-tier judge disbelieved his claim in its entirety and concluded that he was Afghani youth who left Afghanistan, clearly with the benefit of some financial assistance, simply in order to seek a better life in the UK. The Upper Tribunal also dismissed the appeal.
The Court of Appeal (McFarlane, Beatson and Underhill LJJ) reviewed the authorities and summed up the principles relating to the Home Office’s duty, pursuant to the Asylum Seekers (Reception Conditions) Regulations 2005, to endeavour to trace the family members of unaccompanied asylum-seeking children (or “UASCs”) in the UK. The court touched on its earlier case law such as DS (Afghanistan)  EWCA Civ 305 and HK (Afghanistan)  EWCA Civ 315. It observed that the effect of those authorities was summarised, and their principles applied, in the asylum appeal originating as AA/13345/2010 but reported at different stages as KA (Afghanistan)  EWCA Civ 1014 and EU (Afghanistan)  EWCA Civ 32. The present case raises the following questions for the Supreme Court:
- The Home Office has a duty to try to trace the families of unaccompanied children who seek asylum in the UK. What is the extent of that duty? And what follows if it is breached?
In interview with the Home Office in October and November 2011, AA said that he was unable to contact his family. He could not precisely disclose his family’s whereabouts and he could not even provide telephone numbers for them. The Home Office dithered until February 2012 before doing anything in respect of its duty under regulation 6 of the 2005 Regulations – transposing article 19(3) of Council Directive 2003/9/EC (the Reception Directive) – to endeavour to trace AA’s family. It invited his solicitors to complete a “tracing pro-forma”, but refused to grant him asylum and humanitarian protection one day later.
AA’s Arguments: Court of Appeal
Relying on a threefold argument, in proceedings below AA argued that the Home Office’s refusal to grant him asylum was vitiated by its breach of the tracing duty with the result that the only appropriate remedy was to grant him asylum. In particular, he argued that the breach of the tracing duty had been breached under regulation 6 because there was a failure to endeavour to trace his family in Afghanistan. Moreover, the failure plainly had a causative link, of the kind contemplated in KA, to the decision to refuse asylum and that that decision was accordingly vitiated. He therefore likened his case to one where, following the approach first articulated in Rashid  Imm AR 608 and subsequently explained and reformulated in S  INLR 450, the only appropriate remedy was for the court, or in any event the Upper Tribunal on remittal, itself to allow the asylum claim.
The Tracing Duty: Key Points
Dismissing AA’s appeal, Underhill LJ did not embark on a full appraisal of the Afghan cases on the tracing duty. He, nonetheless, summarised the key points in the authorities mentioned above.
First of all, as held in HK, the duty was intimately connected with the determination of the asylum claim. However, a failure to comply with the duty could potentially, but would not necessarily, invalidate a refusal of asylum. Breaching the duty was not significant in itself, but only insofar as it involves, or produces, a failure to comply with the Home Office’s duties and in particular the duty under section 55 of the Borders, Citizenship and Immigration Act 2009.
Moreover, breaching the duty would only impugn a refusal of asylum insofar as it permitted the claimant to say that he had been unable to rely on the fact that the Home Office’s tracing endeavours had proved negative in order to corroborate his evidence about the absence of support in Afghanistan. Therefore, where a breach was found, the court had to consider whether tracing would have produced information that would have affected the asylum decision. The scope of the duty was only to “endeavour” to trace the child claimant’s family, and what that entailed would vary according to the circumstances of the case. (However, merely drawing child the asylum-seeker’s attention to the services of the Red Cross, as in the present case, certainly does not suffice.) Ultimately, where the breach operated to invalidate the asylum decision, circumstances were important and it did not necessarily follow that granting asylum was the appropriate outcome.
In AA’s case, the tracing duty had been breached. Inadequate steps had been taken: there was a failure to start the process in good time; there was a failure to integrate the tracing process with AA’s asylum claim; the authorities failed to ask sufficiently searching questions aimed at eliciting ways in which his family might have been traced by remote means.
On the other hand, Underhill LJ found that the “deliberate and systemic” breach found in the cases of DS, HK and KA during the period 2007 to 2009 no longer prevailed because since early 2009 there had been some change in the Home Office’s approach. The court expressed regret at para 32 that the Home Office had not provided evidence of changes in their procedures following DS but Underhill LJ held that the evidence produced by the government confirmed the impression that, in 2011, the implications of DS had been appreciated and the authorities were considering doing more than they had done in the past.
Underhill LJ found it unnecessary to decide whether Home Office was in breach by not having given the British embassy in Kabul the responsibility of tracing families in Afghanistan. He held at para 38 that that involved questions of security and resources and was a matter in which the state had to be afforded a wide margin of appreciation. He moreover concluded at para 42 that the Home Secretary was not in breach of the tracing duty by failing to arrange for embassy staff or third parties to visit the relevant area to try to trace AA’s family.
The court did not quarrel with the proposition that there may be cases where the section 55 duty requires the Home Office to seek out information relevant to an immigration claim by a child. But in light of SS (Nigeria)  EWCA 550, Underhill LJ explained at para 44 that such cases would be rare in reality and AA’s case was not one of them. The court did not accept that HK, where Elias LJ was concentrating on a specific issue, enunciated a general duty on the Home Secretary to make her own investigations. Underhill LJ did not embark upon an exposition of the effect of the Rashid/S line of authority. He confessed that the analysis was “not straightforward” and in circumstances where he need not have dealt with it, he preferred not to. Dismissing the appeal, the court held that although the Home office had breached the tracing duty, AA had not established that the breach had any material effect on the asylum decision. As Underhill LJ explained:
51. The effect of the Appellant’s answers in interview, confirmed in his own witness statement, is thus clearly that he has given all the information that he can. It may be that he could in fact give more, and that this is a case of deliberate non-co-operation; but it is unnecessary to reach a view about that. What matters is that he has not shown that UKBA might have obtained any further useful information, whatever questions were asked or whatever tracing procedures were in place in Afghanistan. Accordingly he has not shown that such breaches as occurred had any material effect on the decision either of the Secretary of State or the FtT.
52. It is part of the Appellant’s own case that his family arranged for him to leave Afghanistan and come to the UK, at no doubt considerable cost; and they are very unlikely to want him to be returned. Even if it were possible to contact any member of his family they would have had a strong incentive to support his account of persecution even if it was untrue (and also to say that they were unwilling or unable to look after him if he were returned), and any corroboration that they gave would thus be of very doubtful value.
There are large numbers of UASCs in London. It does not matter which direction you travel in, the sounds of Pashto (and Dari) can be heard in the background near the tube stations where minor Afghan asylum-seekers work selling the “£1 a bowl” fruit and vegetables. If you ask them where they are from, they generally answer “Peshawar” which, of course, is in Pakistan. But then again, the Afghans never did recognise the Durand Line and as these cases ably demonstrate they do not accept any other frontiers either!
The next post looks at the overlapping case of TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 which has been listed together with this case. Like AA, TN and MA were granted discretionary leave until they turned 17½ but refused asylum and in their case Maurice Kay, Beatson and Briggs LJJ saw no point whatsoever in making a reference to the CJEU about a “deficiency” relating to an obligation derived from EU law.