ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Before Mr Justice Blake and Senior Immigration Judge Ward
B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE RIMER
LORD JUSTICE ELIAS
| HK (AFGHANISTAN) & ORS BY THEIR SOLICITOR AND LITIGATION FRIEND, KAMALJIT SANDHU
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr David Blundell (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 9 February 2012
Crown Copyright ©
Lord Justice Elias :
The hearing before the Upper Tribunal.
"[HKs] appeal was heard by Immigration Judge Obhi on 3 July 2009. The Immigration Judge found that that appellant was not at risk of being taken by the Taliban and further found that he had a surrogate family in the form of his uncle and aunt, and that if returned to Afghanistan it was unlikely that his uncle would refuse to care for him. The Immigration Judge also looked at the situation with regard to humanitarian protection but found that there was no evidence of any individual threat to this appellant which was any greater than that which the vast majority of citizens in Afghanistan faced.
With regard to [NS], his appeal was heard by Immigration Judge Buchanan on 12 October 2009. The immigration judge found that the appellant was not at specific risk of being abducted or exploited by the Taliban and found that there was no reason why he could not continue to live with his mother and paternal uncle if he were to be returned. The Immigration Judge also found that this appellant had not demonstrated any specific individual threat to him that would not be encountered by other young Afghans of his age.
The appeal of [MM] was heard by Immigration Judge Deavin on 14 July 2009. In a very brief determination the judge found that the appellant lived in a village in north-east Afghanistan and that there was no sound evidence of any problems encountered with the Taliban or of any forced conscription. The Immigration Judge did not consider the question of humanitarian protection."
"48. We have taken this evidence into consideration, and we agree that it presents a bleak picture for children who are returned to Afghanistan and who do not have a family that will care for them. We note that in the case of the first appellant, the finding of the Tribunal was that this young man from Kundoz province had no parents, although he was looked after by a maternal uncle following the death of his family in the earthquake. His maternal uncle and wife did not have children of their own and clearly became de facto parents of the young man. The immigration judge found that he had a surrogate family in Afghanistan and, if he were to be returned, it was unlikely that his uncle would refuse to care for him. Indeed, Mr Bedford did not dispute that the relatives of all three appellants would be willing to care for their respective appellant. With regard to the second appellant, he was looked after by an uncle when his father disappeared. The third appellant, together with his mother was simply taken to live at an uncle's home after the disappearance of his father.
49. None of these boys is an orphan and none is without family in Afghanistan. It was pointed out on behalf of the Secretary of State that in each of these cases the appellant was advised that he could seek to make contact with his relatives through the auspices of the Red Cross organisation. Information was provided that the Red Cross International tracing service is a way for families who have been separated to try to restore contact. It was noted that it is a free service and that in the United Kingdom contact should be made with the local Red Cross Branch; if the organisation feels that it is able to help the inquirer will be asked to fill in a relevant form which will be sent to the headquarters in London, from whence it is forwarded to the appropriate Red Cross or Red Crescent Society in the appropriate country or to the International Committee of the Red Cross. They can offer assistance in putting the parties in contact through letter or phone.
50. In each case this information was provided in the refusal letter to the appellant, but there was no evidence before the Tribunal in any of the cases that any efforts had been made to contact relatives in Afghanistan. None of these respective families lived in areas of Afghanistan where it might be thought that they could have been displaced by the conflict. None of the families lived in the provinces which are under the control of the Taliban or where there is regular ongoing fighting which generally displaces local people from their areas. There is no reason to believe that the relatives of these three young men are living anywhere else other than where they were previously living when each the appellants had contact with them.
51. There is no evidence of any endeavour being made on behalf of the any of the appellants to make contact with their relatives still living in Afghanistan. As Mr Bedford accepted, it was not in dispute that the respective families would be willing to collect and take care of these young men upon their return."
"The families were all able to make arrangements for the boys to travel out of Afghanistan and to the west. They travelled with the assistance of agents and each of the families was clearly able to provide the finance for such journeys, which is no small amount of money. We have no reason to believe that their families could not travel to Kabul to meet them on return. Therefore, while we take into consideration the evidence which has been produced regarding the dangers for children in Afghanistan, particularly those who have no family to turn to, we do not believe that these appellants would face a real risk of such eventualities."
"The matters raised in paragraphs 2-19 of the Appellants' Skeleton Argument are arguable, not least because Counsel for the Secretary of State in DS (Afghanistan) submitted that it was on all fours with these appeals (para. 32). It is arguable that the Tribunal's decision in these appeals was flawed for the same reasons as those given in paragraph 88 of DS by Rimer LJ, agreeing with Lloyd LJ."
The relevant legal provisions.
"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."
"1) 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.
(2) 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."
It is not disputed that these appellants were unaccompanied minors.
"The Government of (the sending country), with the cooperation of the Government of Afghanistan, will ensure that genuine efforts are made to trace family members. If family members are successfully traced, the Government of (sending country) in cooperation with the Government of Afghanistan will ensure through an individual assessment that the family is willing and able to receive the child. The outcome of this assessment (where applicable) will inform the decision on return."
It also asserts that in any decision affecting the child, the child's best interests must be a primary consideration.
The Secretary of State's offer of remission.
The grounds of challenge.
"Where a child has close relatives in Afghanistan who have assisted him in leaving the country, any assertion that such family members are uncontactable or are unable to meet the child in Kabul and care for him on return, should be supported by credible evidence of efforts to contact those family members and their inability to meet and care for the child in the event of return."
i) The Upper Tribunal was not entitled to conclude that the failure by the children to make attempts to contact family members (or their surrogates) justified an inference that the family members would be able to receive and protect the child. It was not reasonable to expect a young child to make attempts to trace family members thereby placing the onus on the child to satisfy the Tribunal that there was no-one in Afghanistan who could receive and protect him.
ii) Any evidence about the adequacy of reception facilities, in this case at least, should have been supplied by the Secretary of State. She is required by regulation 6 to endeavour to obtain that evidence. Here she had failed in her duty to carry out any tracing inquiries at all and therefore the Upper Tribunal was not in a position to be satisfied that the family members could receive the children. If children deliberately mislead the Secretary of State or the Red Cross as to the possible whereabouts of their relatives in Afghanistan, thereby frustrating attempts to trace those relatives, that might well justify a Tribunal drawing adverse inferences against them. That was indeed the position in DS and explains the conclusion reached in that case. But there was no such conduct here.
iii) In the absence of any proper evidence to show that the child would be received in Afghanistan, asylum had to be granted. That is the logic of the decision in LQ.
iv) The decision to grant asylum was the only proper conclusion, quite irrespective of whether the section 55 duty had been formally taken into account. It was necessarily in the best interests of these children to be allowed to remain in the UK in circumstances where, as unattached children, they would be subject to a real risk of serious harm in Afghanistan, as LQ indicated.
v) The court ought not to allow the Secretary of State to delay the determination of the asylum claim pending the fulfilment of her statutory duties. The court ought to require her to grant asylum status now; it is in the interests of these children that their status should be speedily determined so that they are not left in a state of uncertainty.
vi) This approach would not be inconsistent with the child's best interests. The Secretary of State would still be required to fulfil her statutory duty under regulation 6 to trace family members. If she was successful and it became clear that they would be willing and able to receive and protect these children, this might justify her revoking the asylum status on the grounds that the situation had changed and that the continuing need for asylum was no longer present.
"I do not accept the submission of Mr Waite that the Secretary of State was entitled to do nothing by way of tracing enquiries. Regulation 6(1) of the 2005 Regulations, following the Directive, imposes a plain duty on the Secretary of State to endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum. I reject the submission that, because the Regulations deal with the reception of asylum seekers, the duty does not arise and I fail to see how the Secretary of State can ignore her regulation 6 duty when considering the asylum application. The possibility and desirability of a safe return are factors which should be considered from the start, as stated in the policy document.
In ZH, Lady Hale, at paragraph 23, cited article 3(1) of the UNCRC, section 11 of the Children Act 2004 and section 55 of the 2009 Act. The need to "safeguard and promote the welfare of children who are in the United Kingdom", specified in section 55, requires a proactive attitude to the possibility of return to a family. That appears to be conceded, and asserted, in chapter 15 of the Secretary of State's policy document entitled "Processing an Asylum Application from a Child", though the care to be exercised in making enquiries is emphasised. Although not issued until after the Tribunal's decision, the guidelines issued by UNHCR on 22 December 2009 and the aide-memoire of August 2010 confirm the need. "
"The lack of cooperation does not relieve the Secretary of State of her duties. It would be relevant to a decision as to what the Secretary of State was required to do in a particular case and also to the eventual decision as to whether the right to asylum had been established in that case. But the duty cannot be ignored."
"I would [allow the appeal] for the reasons explained by Lloyd LJ. In arriving at its determination, the AIT gave no consideration to the obligation upon the Secretary of State, under section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that her functions in relation to the appellant's asylum application were discharged 'having regard to the need to safeguard and promote the welfare' of the appellant whilst in the United Kingdom. It was conceded on behalf of the Secretary of State in ZH (Tanzania) that the section 55 duty extends to the disposition of an asylum application by a child such as the appellant (paragraph 24 of Lady Hale's judgment). In this case, however, there is a real question as to whether that duty has been discharged. For example, no steps have been taken by the Secretary of State towards enquiring as to the availability of adequate reception facilities for the appellant in Afghanistan; nor has a 'best interests consideration' of the nature referred to in Chapter 16 of the Secretary of State's policy document 'Processing an Asylum Application from a Child' been carried out. The result was that the AIT disposed of the appeal without the material necessary to enable it to decide it in accordance with the law."
"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 of Mr Waite 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 UKBA in the present case. All that was done was to draw to the attention of the appellant or his foster-carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. There is a question as to whether the use made of these facilities by or on behalf of the appellant was appropriate, but nothing was done pursuant to regulation 6. 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."
"Family tracing can be a lengthy process, and contact with the family is only one aspect of the overall consideration.
Any information obtained from the child at interview about the relationship ties with their family and their contact details and as well as information gathered from the family should be considered in the round with the other evidence available. Case owners should not defer making an initial decision pending the outcome of a tracing request, particularly if the decision is to afford international protection to the child. All tracing efforts should be minuted on CID and on the HO file and updated as necessary. Results of the tracing process can be forwarded as additional information within the appeal bundle in the event of a refusal and can be used at appeal even though it was not included in the decision letter."
Lord Justice Rimer:
Lord Justice Pill:
"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible."
As the Upper Tribunal stated at paragraph 133 of AA, a post-DS case cited by Elias LJ at paragraph 37:
"But the centrality [to an asylum application] of the question of whether a child would have the protection of his or her family on return, serves to demonstrate the importance of the discharge by the respondent of her duty to make tracing enquiries."