“Aur Sardar Khan tum ko asylum mil giya kya (did you get your asylum Sardar Khan)?” I ask the young Peshawari Afghan butcher in the Iranian north London supermarket. “Haan Khan akhirkaar mil giya (yes I finally did)” grins the beaming teenager as if he had won the lottery. Yet referring to the recent attack on the Afghan Parliament he bemoans “magar aafat to aab shuruh hoi hai (but the calamity has just begun)”. Pointing the finger at the likely culprit, I clarify “saab Pakistan ka qusoor hai (it’s all Pakistan’s fault)”. But unlike most Afghans he disagrees. Sardar Khan, who claims to have been persecuted by the Taliban, ironically looks up to the Pakistan Army – which has never won a war – because of its British roots and American hardware. The young Pashtun yearns for his own country to have an “Allah’s Army” that can smash the menace of jihadi terrorism. With their vibrant Hindi/Urdu, in their roles as fruit sellers, butchers etc the charismatic children of Afghanistan have made me feel at home during my time as a foreigner in xenophobic Britain.
Not all smuggled unaccompanied asylum-seeking children (UASCs) are as lucky as Sardar (literally “chief”) and these cases show that most accounts of being indoctrinated into suicide bombing and jihad are disbelieved. AA, TN and MA were Afghan UASCs whose asylum claims were rejected. However, all of them were granted discretionary leave to enter and remain in the UK until the age of 17½ years under official policy (as reflected in the guidance document Processing an Asylum Application from a Child). Their cases turned on the sufficiency of the appellate process and the scope of the duty with regard to family tracing. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agreed) held that, under the old regime for appeals prior to the phased cutover to the new system under the Immigration Act 2014, UASCs in the UK were not deprived of an effective remedy by the grant of leave to remain for less than a year, even though this precluded them from immediately appealing against the asylum decision under section 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA). The court also held that a failure to properly discharge the obligation to endeavour to trace the family members of UASCs did not vitiate a decision to refuse asylum.
A suite of Council Directives – including Directive 2003/9/EC (Reception Directive), Directive 2004/83/EC (Qualification Directive, recast Directive 2011/95/EU) and Directive 2005/85/EC (Procedures Directive) – forms the code underpinning the crumbling architecture of the Common European Asylum System. Article 19(3) of the Reception Directive requires Member States to endeavour to trace the family members of UASCs as soon as possible. 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 a tribunal against a decision taken on their application for asylum. It was argued that the Home Office needed to comply with these provisions in deciding AA, TN and MA’s cases.
All of them claimed asylum and said that if they returned to Afghanistan they would be in danger from the Taliban, the government and the police. All of them also argued that the Home Office’s failure to discharge its tracing duty vitiated the decision to reject the asylum claims and that compliance with the tracing duty would have produced evidence to support their accounts which had been disbelieved. The Court of Appeal, however, dismissed these appeals.
Sections 82 and 83 of the NIAA (as in force in the context of the present cases) provided a right of appeal of an asylum rejection only in situations where the applicant no longer had leave to enter and remain in the UK, where a decision to remove the applicant had been made, or where the applicant had been granted leave to enter or remain in the UK for over one year. Otherwise, the decision could only be judicially reviewed. Notably, section 82 NIAA was overhauled and section 83 was repealed by section 15 of the 2014 Act.
Using the services of an agent arranged by his maternal grandfather, AA entered the UK in mid-2011 concealed in a lorry and was subsequently arrested by the police. 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’s accepted date of birth was 29 December 1995.) 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, for more than one year, 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 and so did the Court of Appeal.
TN and MA arrived in the UK as UASCs. They were granted discretionary leave to remain, until they reached the age of 17½, after they had reached 16½. Since the leave was for less than a year, they did not enjoy a right of appeal against refusal of their asylum claims under section 83(2) of NIAA but they appealed the length of their discretionary leave. This led them to argue that they were denied an effective remedy, within article 39 of the Procedures Directive, by way of appeal and they judicially reviewed their exclusion from an appeal until their removal. The Upper Tribunal allowed TN’s appeal as to the length of discretionary leave but the Court of Appeal dismissed the other appeals.
TN’s agreed date of birth was 1 January 1994. TN travelled to the UK in August 2010 and was arrested in September while working illegally and put into social services’ accommodation. TN claimed that his uncles were Taliban fighters and he had fled to the UK when his father refused to join their campaign. In June 2011, repeating his claim, TN sought to extend his discretionary leave and made an application for humanitarian protection. In September 2011 a family tracing pro forma he completed said that the British Red Cross, who he had contacted, had failed to find his family members who in the past had lived in Mohammad Agha district.
MA arrived in the UK on 27 July 2009. He claimed to be 13 years old but was assessed to be 16 and given a notional birth date of 1 January 1993. 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 American forces. TN and MA’s asylum claims were refused. Although they were granted discretionary leave to remain for approximately one year until they were 17½, 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. (Because TN and MA were aged over 16½ years when their asylum applications were rejected, they were not in a position to appeal their asylum decisions under the terms of the NIAA.) However, they had the option of judicially review and/or appeal the length of their discretionary leave. Their situation precluded them from relying on their age as a basis for claiming asylum because they were only able to mount an appeal against the asylum rejection when a decision to remove them had been made on the expiry of their discretionary leave.
AA: Proceedings Below
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 UASCs in the UK. The court touched on its earlier decisions 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 proceedings reported at different stages as KA (Afghanistan)  EWCA Civ 1014 and EU (Afghanistan)  EWCA Civ 32.
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 Asylum Seekers (Reception Conditions) Regulations 2005 – transposing article 19(3) of 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.
Relying on a threefold argument, 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 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 (Afghanistan), to the decision to refuse asylum and that that decision was accordingly vitiated. He therefore likened his case to one where, following the approach articulated in Rashid  EWCA Civ 744, 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 painstaking Afghan cases on the tracing duty. He, nonetheless, summarised the central points in the authorities mentioned above.
First of all, as held in HK (Afghanistan), 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 the child 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 (Afghanistan), HK (Afghanistan) and KA (Afghanistan) 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 (Afghanistan) 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 (Afghanistan), 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 (or “corrective relief”) line of authority. He confessed that, in light of the critique of Rashid in R (S)  EWCA Civ 546, 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 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 First-tier Tribunal.
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.
In R (S), Carnwath LJ (as he then was) was “not altogether” convinced by the outcome in Rashid because it seemed to take “abuse of power” beyond its logical conclusion by imposing remedial results closed to the courts in other cases of illegality. Illegality and not maladministration remained the reviewing court’s sphere of analysis. The discretion to grant indefinite leave to remain (ILR) belonged to the Home Office and the court could not usurp it. The correction of injustice lay at the heart of the matter in an extreme case where the unfairness and the remedy were so glaringly obvious to the court that the Home Office could only exercise its discretion in one direction.
TN and MA: Proceedings Below
As noted above, as in force at the material time, section 83 (Appeal: asylum claim) provided a right of appeal on asylum grounds only when an asylum claimant was refused asylum but granted leave to enter or remain for more than a year. If periods of less than 12 months had been given, the right of appeal arose when an aggregate of 12 months leave has been given since the decision to refuse asylum was taken. There was 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, TN and MA were in a position to 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 (Afghanistan) 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 (Maurice Kay VP/LJ and Briggs and Beatson LJJ) 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  EWCA Civ 16, 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. (Ravichandran itself involved three young male Tamil appellants who came to the UK from Sri Lanka in 1993 and were refused asylum and had their appeals rejected by the appellate authorities. It was held that a claim for asylum raises a single composite question.)
Finally, reliance was placed in article 47 of the Charter of Fundamental Rights of the European Union (CFR) which reflects the conditions of article 6 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 redundant 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  ECHR 2066 referring to Vilvarajah, the Strasbourg Court held that Contracting States are afforded a margin of discretion and thus article 13 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 (Afghanistan) – 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 “hypothetical spectrum” in KA (Afghanistan), 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 in Ravichandran 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 (Afghanistan) 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.
The Supreme Court
The appeals were dismissed in a cautious judgment.
The court mentioned Lindblom J’s analysis, in TN’s case, that the rationale behind limiting section 83 NIAA (to cases where an unsuccessful applicant for asylum was given leave to remain for more than a year) was that:
5. … 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.
Lord Toulson observed that Kosovo had been given as an example and he further opined:
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.
In relation to TN and MA’s reliance on article 47 of the CFR, the court said at para 35 that the point added “nothing to the argument under the Procedures Directive”: Lord Toulson mentioned A v Netherlands (2014) 59 EHRR 33 and pointed out that “a denial of refugee status to an applicant does not, as such, concern a right or freedom guaranteed under the European Convention.”
The court affirmed, at para 38, the longstanding principle in Ravichandran. Thus, asylum appeals need to be determined by reference to the situation prevalent at the time of the appellate decision (and not by reference to the factual scenario at the time of the original decision against which the appeal was brought). This is sensible because the question is whether the applicant is in need of refugee protection and immigration judges – “fairly … regarded as an extension of the decision-making process” – would not be serving the public interest by ignoring events which occurred after the Home Office decision. Things may have improved or deteriorated in relation to the claim and the same logic applied to the Upper Tribunal which could not be seen to discard its own “recent body of knowledge” and for the First-tier Tribunal to apply its expertise at the time of its decision.
The exception to Ravichandran created in Rashid involved “unusual” facts. An Iraqi Kurd, i.e. Bakhtear Rashid, escaped Saddam Hussein’s tyrannical regime and his asylum claim was rejected because internal relocation was available to him within the Kurdish Autonomous Zone (KAZ). An adjudicator upheld the decision and Rashid became a victim of the legal process. During judicial review proceedings he discovered by way of the Treasury Solicitor’s correspondence to other claimants, who were granted refugee status, that the Home Office did not as a matter of policy at that time rely on the availability of relocation to the KAZ. Rashid’s case was sent for reconsideration to the decision-maker who found that after the toppling of Saddam’s regime he was no longer at risk in Iraq. In judicial review proceedings, Pill, May and Dyson LJJ held that Rashid was entitled to unconditional leave to remain in the UK. Pill LJ found that Rashid had been treated conspicuously unfairly and that the Home Office’s failures were “startling and prolonged”. He reasoned that the Home Office’s abuse of power required the court to “intervene to give such relief as it properly and appropriately can”.
Viewed against the correct policy which had been discovered in the related cases (of M and A), behind which Rashid’s case had been stacked, the same treatment needed to be given to Rashid because the issues were identical and fairness required it. Although Rashid was granted ILR to remedy the prejudice he suffered, the court accepted that he was not entitled to refugee status because it was underpinned by an international treaty and should not be conferred where the formula is not satisfied at the time of the decision.
In balancing the scales between justice and fairness on one side and the Ravichandran principle on the other, Dyson LJ added that it would be improper to hold the authorities accountable to policy which had become redundant by the time of decision but his Lordship nonetheless went on to hold that this straitjacket was outweighed by the conspicuous unfairness in Rashid’s case.
Decision on Effective Remedy
Noting that Vilvarajah and Bensaid establish an important general principle about the adequacy of judicial review as an effective remedy, Lord Toulson found it erroneous to focus on judicial review because Parliament had produced a statutory procedure under the NIAA for granting and withdrawing refugee status. He concurred with Beatson LJ’s reasoning that despite the uncertainty for asylum applicants the statutory scheme satisfied the requirement of providing an effective remedy for someone who was refused asylum but had been given leave to remain for some months. Lord Toulson found, at para 32, that although not immediate TN’s and MA’s right of appeal to the tribunal was still effective because the delay was short and was for good reason.
This made practical sense in times of crisis. Pressure on the asylum system of a particular country was important to Lord Toulson’s mind and he held that the possibility of asylum claimants being granted short-term leave to remain because of a torrent of applications meant that the public interest and the interests of applicants did not lie in tribunals becoming congested with cases which would, before long, in any event be reviewed by the authorities. “Persecution is not respectful of birthdays … when it comes to the kinds of risk including forcible recruitment and sexual exploitation of young males,” held Lord Toulson. Despite TN and MA’s contention that they were deprived of the ability to argue that were entitled to refugee status as members of a particular vulnerable social group, i.e. minors who were effectively orphans, echoing Maurice Kay LJ’s sentiments in KA (Afghanistan) his Lordship held that:
33. 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.
Because the statutory scheme under the NIAA provided an effective remedy, the court found it unnecessary to consider whether the availability of judicial review bridged the gap perceived by TN and MA.
Decision on Tracing Decision
AA argued that the Supreme Court should hold that he was entitled to asylum because this was the only lawful option for the tribunal, which should grant “corrective leave”, because of corrective justice. If not, then on remittal the tribunal should presume that AA was credible and apply the facts at the time of decision and reject it only if his claim was clearly not capable of belief. Similarly, TN and MA also invited the court to conclude that the proper remedy for breaching the tracing duty was for the tribunal to have found that they were entitled to asylum.
In EU (Afghanistan), Sir Stanley Burnton subjected Rashid – with which he had “great difficulties” – to a harsh critique and said that the “protective principle” enunciated in that case was “a misnomer” because there was no value in the court encouraging leave to be granted to persons facing no risk on return. Indeed, to do so “is to accede to a claim to remain here as an economic migrant” and was unjustifiable as the court’s displeasure at the authorities’ conduct, or as a sanction for their misconduct.
Sir Stanley accepted that a breach of the tracing duty could have evidential relevance and the failure to endeavour to trace a claimant’s family might also result in the claimant, who had lost contact with his family, becoming rooted in the UK and establishing an article 8 claim. However, the court also stressed the need for the claimant to establish some causative relevance of the authorities’ breach to the protection claimed. Therefore, the judicial decision was not one of compensating the claimant for some past breach of duty which was unconnected to the question whether, at the material time, he faced a risk bringing him within the protection afforded by the Refugee Convention.
On the one hand, the court accepted that the consequences of a breach of the tracing duty are potentially relevant in evaluating present risk owing to the possible effect on the nature and quality of the available evidence. But on the other hand, that acknowledgement did not accord with exercising some form of remedial jurisdiction empowering judges to order the grant of ILR where a right to refugee status (or humanitarian protection) was not evidentially made out.
Two other points of general application emerged:
- The fact that the true date of birth of UASCs is unknown is an additional reason for not regarding the supposed date of majority as necessarily changing the assessment of risk.
- UASCs arrive in the UK because their families/friends pay a considerable cost for their fare and for an agent to arrange the journey and they will be intransigent to cooperation with the Home Office for the return of the child to Afghanistan. EU’s case itself paradigmatically demonstrated the reality, that it was irrelevant to his family, and was rightly dismissed by the Upper Tribunal and the Court of Appeal.
The Supreme Court also, at para 69, agreed with the position of the intervening Office of the Children’s Commissioner for England (OCC) that the tracing a child’s family is for the child’s welfare in promoting reunification. However, although it may lead to that result it is not for the purpose of gathering evidence and prior to any steps being taken in relation to tracing, the child needed to be consulted. The purpose of tracing a child’s family is for the child’s welfare in promoting reunification, not for the purpose of gathering evidence, although it may lead to that result. The child should be consulted about tracing before any steps are take.
Turning to the issue thrown up by Ravichandran and Rashid, Lord Toulson preferred the former and said at para 72 that:
the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid should no longer be followed.
His Lordship held that and that the doctrine espoused in Ravichandran “is sound” because “on an asylum appeal the question is one of present status”, i.e. whether or not an appellant meets the criteria of the Refugee Convention or is he in need of humanitarian protection? So the role of the court was distinguishable from a situation involving a private law claim for breach of contract or tort where claimants can expect to be compensated, by being restored to the original position, as if the wrong had not been committed. The upshot was that the courts needed to desist from following the unsatisfactory principle in Rashid – which was an “unclear” exception where official procedural sloppiness and abuse of power resulted in an Iraqi Kurdish appellant being unfairly denied refugee status – because of the impossibility of stating “its scope with any degree of clarity”.
Ultimately, an appellant’s qualification for asylum status is a question not of discretion but one which needs to be judicially assessed on the evidence. No presumption in favour of the applicant’s credibility was legally justifiable because of the authorities’ failings to properly conduct the duty as regards family tracing. Lord Toulson said that by definition discretionary leave involves a discretion which belonged to the Home Office. Subject to its lawful exercise in line with established policy, the Supreme Court agreed with Sir Stanley Burnton that it is improper for an appellant to be granted unconditional leave to compensate for an earlier official error or breach of obligation to someone who is disentitled to such relief under present policy on other grounds such as article 8.
“There is no presumption of credibility,” and Lord Toulson said at para 73 that the tribunal needed to be guided by the evidence. He shared Lloyd LJ’s analysis that although an evidential matter for the tribunal, an appellant’s willingness to identify possible sources of corroboration might fairly be regarded as a peg (or “mark”) of credibility where an appellant has identified individuals who might be able to confirm his account, but the Home Office has failed to pursue the information provided. The court found force in the argument that appellants who feel that they are treated unfairly because of the authorities’ failure to carry out the tracing duty were entitled to have their appeal adjourned, irrespective of the fact that they may have turned 18 by then, until the duty had been performed. The approach accorded with the OCC’s stance that “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.” Where an appellant had provided details of people who could be contacted but the authorities did not follow up on the information provided, it was possible for an immigration judge to use the appellant’s readiness to pinpoint possible sources of corroboration as a mark/peg of credibility. Indeed, this is an emollient part of this otherwise arguably strident judgment. But since there was no presumption of credibility, the assessment for the tribunal to make would be evidential.
Lastly, MA’s and AA’s narratives were entirely disbelieved by the Upper Tribunal and the Supreme Court agreed with the Court of Appeal that the mere breach of the tracing duty should not result in their appeals being allowed. Lord Toulson said that TN’s discretionary leave application, which was refused in late 2011 but the decision was held to be flawed by the Upper Tribunal as vitiated by failure to perform the tracing duty, could be dealt with pursuant to the principles set out in the court’s judgment.
Despite the opportunity that family tracing provides in assessing the whereabouts and details of an UASC’s family, which may in turn corroborate the persecution claimed, the court’s outright rejection of the efficacy of Rashid precludes future arguments that a failure to comply with the tracing duty must weigh in the child asylum seeker’s favour when the question of refugee status is decided by the tribunal. Lord Toulson’s judgment is important because it delinks the asylum decision from the tracing duty, Indeed, despite the potential evidential/corroborative advantages that may accompany it, breaching the obligation in itself does not culminate in redress being provided by way of granting refugee status.
Even when I was living in Islamabad a long time ago – before 9/11 – I remember unaccompanied Afghan children used to hang out in the posh public areas. They used to sell the most amazing Afghan silver jewellery ever. Nowadays they can no longer be found in Islamabad’s trendy hotspots as most of them have returned home to build new lives. Or perhaps some of them travelled west to Europe to claim asylum!