Like the case of AA (Afghanistan), the cases of TN and MA (Afghanistan) (AP) (Appellants) UKSC 2014/0047 also involve the Reception Directive and regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 which impose on the Home Office the duty to endeavour to trace the members of a minor’s family as soon as possible after he makes a claim for asylum. Of course, TN and MA’s narratives are also related to Afghanistan’s endless war but as discussed below all these cases also involve further legal dilemmas. TN and MA arrived in the UK as unaccompanied asylum-seeking children (or ‘UASCs’). They were granted discretionary leave to remain, until they reached the age of 17½, after they had reached 16½. Since the said leave was for less than a year, the appellants did not enjoy a right of appeal against refusal of their asylum claims under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (NIAA). This situation led them to argue that they were denied an effective remedy, within article 39 of Council Directive 2005/85/EC (the Procedures Directive), by way of appeal.
The appellants equally contended that the limitations of judicial review disadvantaged them and that “corrective relief”, emerging from cases such as Rashid  Imm AR 608 and S  INLR 450, was in issue. They also placed reliance in the Charter of Fundamental Rights of the European Union (CFR). However, the Court of Appeal (Maurice Kay, Beatson and Briggs LJJ) held that UASCs who had been unsuccessful in their asylum claim and were granted discretionary leave at the age of 16½ until they reached the age of 17½ had an effective remedy in judicial review to challenge the initial rejection of their asylum claims.
TN and MA, who were aged 16, appealed against the refusal of their claims for asylum. TN claimed that his uncles were members of the Taliban and he had fled to the UK when his father refused to join their ranks. MA claimed that his father was a member of the Taliban who had been killed by Afghan authorities and his brother had been killed by US forces. TN and MA’s asylum claims were refused. They were granted discretionary leave to remain for approximately one year, until they were 17½ but no efforts to trace their families were made by the Home Office. Owing to the fact that the period of discretionary leave did not exceed one year, they had no right of appeal against the refusal of their asylum claims within the meaning of section 83 of the NIAA. In these cases, the Supreme Court will consider the following issue:
- Was the appellants’ ability to judicially review the Home Secretary’s refusal to grant them asylum an effective remedy for the purposes of EU law?
Section 83 (Appeal: asylum claim) gives a right of appeal on asylum grounds only when an asylum claimant is refused asylum but granted leave to enter or remain for more than a year. If periods of less than 12 months are given, the right of appeal arises when an aggregate of 12 months leave has been given since the decision to refuse asylum was taken. There is no right of appeal under section 82 for a person in this position and the purpose of the provision is to provide a specific single-issue asylum appeal. On the other hand, the appellants could bring a claim for judicial review or apply for further leave to remain after the expiry of the initial period. The refusal of any subsequent application for leave to remain triggered the right to appeal to the First-tier Tribunal. TN brought a claim for judicial review whilst MA sought further leave to remain at the expiry of the first period. Both claims were unsuccessful.
Lindblom J refused TN’s substantive application for judicial review in 2011 and the Court of Appeal was concerned with that matter and dismissed his appeal. Before turning 17½, TN had also made an application for further discretionary leave to remain on asylum, humanitarian protection and human rights grounds. It was refused and, parallel to the judicial review proceedings, triggered a statutory right of appeal to the First-tier Tribunal where TN failed. But he partially succeeded before the Upper Tribunal which remitted his case to the decision-maker in the light of KA so that the case could be reconsidered with the benefit of the result of proper performance of the tracing obligation.
MA did not pursue judicial review but shortly before the expiration of his discretionary leave he applied to further leave to remain. His application was refused and MA exercised his statutory right of appeal. His appeals in both tiers of the tribunal were unsuccessful and he appealed against the decision of the Upper Tribunal to the Court of Appeal, which dismissed the appeal.
TN and MA’s Arguments: Court of Appeal
The appellants submitted in the Court of Appeal that it was unlawful to deny them an effective remedy, to which they were entitled as a matter of European law, by granting them discretionary leave for less than a year. They contended that it was unlawful to deliberately grant discretionary leave for less that one year and preclude the appeal to the First-tier Tribunal while the appellants were still under 18 and protected by the tracing duty and section 55 of the Borders Citizenship and Immigration Act 2009, as interpreted in ZH (Tanzania)  2 WLR 148.
Moreover, the appellants argued that they were denied an effective remedy in breach of the Procedures Directive by way of appeal and that they were thereby disadvantaged in relation to the remedy with which they were provided because of the limitations of judicial review. Furthermore, another issue arose as regards whether “corrective relief” emerging from cases such as Rashid and S offered a sufficient remedy. In that regard, the court was invited to revisit Ravichandran  Imm AR 97, which it was argued stood in the way of ensuring that the aims of the Directive were met, and, if necessary, to refer the point to the CJEU. Finally, reliance was placed in article 47 of the CFR which reflects the conditions of article 6 of the European Convention on Human Rights.
Dismissing the appeals, the court held that the availability of judicial review amounted to an effective remedy within the meaning of article 39 of the Procedures Directive. First of all, for UASCs aged 16½ or older, it was plain to the court that upon refusal of their asylum applications and the grant of discretionary leave to remain until they reached 17½, they were excluded from the statutory right of appeal to the First-tier Tribunal by section 83(1) of the NIAA, and were therefore confined to the remedy of judicial review. In that regard, in light of the decision in Samba Diouf v Ministre du Travail  1 CMLR 8, the first question turned on whether the availability of a remedy by way of judicial review sufficed to amount to a “thorough review” in the sense in which the CJEU used those words in para 56 of Samba Diouf.
Diouf, a Mauritian asylum claimant in Luxembourg who fell to be dealt with under the “accelerated procedure”, was unhappy with the non-appealable nature of the decision in his case but had the option to challenge the decision in the Tribunal Administratif. The CJEU held that Diouf had not been deprived of an effective remedy provided that there was scope to examine the reasons for adoption of the accelerated procedure in proceedings brought to challenge the final decision rejecting the application.
Maurice Kay LJ held at para 12 that Wilson v Ordre des Avocats du Barreau de Luxembourg  1 CMLR 7 did not aid the appellants because the key to the finding of a lack of an effective remedy in that case was the lack of independence and impartiality in the decision-making bodies; the point did not arise in the instant case. The Home Office placed reliance in Vilvarajah v UK (1992) 14 EHRR 248 to emphasise the well established effectiveness of the judicial review remedy in the context of immigration and asylum cases.
Attacks on Vilvarajah because of its age were considered to be irrelevant because it was cited with approval a decade later in Bensaid v UK (2001) 33 EHRR 10. Similarly, the judgment was still authoritative because even more recently in De Souza Ribeiro v France (2014) 59 EHRR 10, referring to Vilvarajah, the Strasbourg Court held that Contracting States are afforded a margin of discretion and thus article 13 (effective remedy) of the Convention does not go so far as to require any particular form of remedy. Maurice Kay LJ remained alive to the possibility of a domestic procedure or remedy failing to satisfy article 13 and the difficulties thrown up by cases such as De Souza Ribeiro and Chahal v UK (1996) 23 EHRR 413. But he held that:
15. … It is not necessary to address cases outside the field of immigration and asylum where different considerations sometimes arise. It is sufficient to observe that there is a degree of fact-sensitivity and that, within the field of immigration and asylum, judicial review as operated in this jurisdiction has consistently withstood examination in article 13 cases, absent a special difficulty such as that in Chahal. Indeed, it was the trust in judicial review as an effective remedy which resulted in the exclusion of article 13 from the provisions which were incorporated into domestic law by the Human Rights Act 1998.
The above led the court to the conclusion that for the appellants the availability of judicial review as a means of challenging the initial rejections of their claims meant that there was an effective remedy such as to satisfy the requirements of article 39 of the Procedures Directive (notably, it respects the margin of appreciation under recital (27) and article 39.2). Although there was no process of a merits decision following the hearing of oral evidence (like in a statutory appeal to the tribunal), there was no requirement laid down in the Procedures Directive or elsewhere that all the features of a statutory appeal should be met. The court was of the view that it was the entitlement of Parliament to define and restrict the jurisdiction of the two-tier appellate tribunal system provided that there was still an effective remedy elsewhere in the judicial system. Maurice Kay LJ remarked that “the fact that Parliament provides a two-tier appellate system located in specialist tribunals is nothing to the point” and he held that “in many ways, they go further than the ‘minimum framework’ in recital (5) provided by the Procedures Directive.”
In MA’s case, the court was unimpressed with the argument that the delay in permitting the him access to the First-tier Tribunal effectively until after his eighteenth birthday disadvantaged him in relation to the assessment of his credibility. AA (Unattended Children) Afghanistan CG  UKUT 00016 and the old private law authority of Armory v Delamirie (1722) 1 Strange 505 did not bite in MA’s favour and Maurice Kay LJ reasoned at para 20 that despite the breach of the tracing duty and the effect of section 83, the Home Office did not attempt to return unaccompanied minors to Afghanistan before their eighteenth birthday.
MA had reached majority by the time of his appeal to the Upper Tribunal and it made repeated references to his age and the need to take that into account in the assessment of his credibility, and it concluded that MA had fabricated his claim. The Upper Tribunal emphasised that the standard of proof was low and it was clear to Maurice Kay LJ that its decision was not one of doubt and the reasoned repudiation of MA’s case was unequivocal. Applying Elias LJ’s approach in HK – i.e. the onus is on the asylum-seeker to make good the asylum claim, and that applies to children as it does to adults and special rules for minors do not change the standard of proof – Maurice Kay LJ did not think that MA benefitted from the KA “hypothetical spectrum”, whether in relation to the need for corrective relief or otherwise, and the court held at para 23 that “the difficulties faced by MA in this regard [the reasoned rejection of his evidence] are insurmountable.”
The court declined to make a reference to the CJEU and Maurice Kay LJ roundly rejected the alternative proposition that there is an arguable deficiency in the protection provided by domestic law because of Ravichandran – where Simon Brown LJ (as he then was) held that “in asylum cases the appellate structure … is to be regarded as an extension of the decision-making process.” Owing to the approach, the general principle was that an appellate tribunal considered asylum cases on the basis of the latest evidence and material, including any which postdated the original decision.
The court rejected the argument that Ravichandran stands in the way of ensuring that the aims of the Procedures Directive are met. It was argued that if an asylum-seeker can no longer rely on a previous error or breach of obligation, for reasons such as the passage of time (for example, attaining majority) or a change of policy, as a result of Ravichandran, then the principle propounded by Simon Brown LJ results in denial of an effective remedy for the previous error or breach of obligation. As far as Maurice Kay LJ was concerned, Ravichandran “was not a one-way street” and he held that:
25. … The most recent material (for example, evidence of developments in an applicant’s private or family life or up-to-date country guidance from the Upper Tribunal) may enhance an applicant’s case just as it may undermine it. Simon Brown LJ made that perfectly clear (at page 113). It is to that extent a protective principle. Moreover, as the authorities leading to and synthesised in KA demonstrate, the principle is susceptible to mitigation, particularly in favour of an applicant at or towards the favourable end of the “hypothetical spectrum”.
The above approach accorded with Sir Stanley Burnton’s position in the case of EU where the court was clear that granting leave to remain to a person who faced no risk on return and whose Convention rights would not be violated by his return is to use the power to grant leave to remain for a purpose other than that for which it is conferred.
Moreover, there was no point whatsoever in making a reference to the CJEU about the “deficiency” relating to an obligation derived from EU law because no question needed to be answered in relation to the compatibility of Ravichandran with the EU requirement of an effective remedy. It was clear to the Court of Appeal that Ravichandran was “an even-handed principle” because it “ensured that when asylum cases were considered on appeal, those currently at risk on return to their countries of origin were not returned, and those who were no longer at such risk were not accorded a status which they did not merit.”
The court’s conclusions on an effective remedy in relation to article 39 of the Procedures Directive were equally applicable to the appellants’ attempt to rely on the CFR. In that regard, article 47 of the CFR – “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” – added nothing to bolster the appellants’ case. Beatson and Briggs LJJ concurred with Maurice Kay LJ that in the circumstances judicial review was an effective remedy for the appellants in relation to the otherwise unappealable grant to them of discretionary leave for less than a year.
Reference or no reference, remedy or no remedy, the last word on Afghanistan will eternally belong to Indian born British poet and novelist Rudyard Kipling who, in The Young British Soldier, rather tellingly wrote: