COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE KEENE
LORD JUSTICE CARNWATH
| AA (Afghanistan)
|- and -
|The Secretary of State for the Home Department
The Medical Foundation for the Care of Victims of Torture
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John-Paul Waite (instructed by Treasury Solicitors) for the Respondent
Nadine Finch (instructed by Medical Foundation) for the Intervener
Hearing date: 1st November 2006
Crown Copyright ©
Lord Justice Keene:
"a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age."
"Unaccompanied asylum seeking children who have no claim to stay in the UK and who would, had they been adults have been refused outright, should continue to be dealt with under UASC policy and given ELR to age 18 or for four years for those under 14, unless there are adequate reception arrangements in place."
That paragraph is set out in full at paragraph 72 of the adjudicator's summary of the submissions on behalf of the appellant. ELR stands for Exceptional Leave to Remain and UASC stands for Unaccompanied Asylum-Seeking Children. Reliance was also placed on a passage from the Home Office CIPU Report on Afghanistan dated October 2003, which recited UNHCR advice that "persons in particularly vulnerable circumstances should not be required to return to Afghanistan" and these persons included unaccompanied minors.
"on return it was reasonably likely that his family members in Afghanistan would be in communication and would ensure that the appellant would be looked after by members of his extended family." (paragraph 11)
This conclusion was based upon such facts as his mother and siblings being in Logar, with her having written to him only 1˝ months before the hearing; the presence of his uncle in Kabul, with whom the appellant had spent 7 months; and the fact that in the past the appellant's extended family had taken active steps to ensure his care in Kabul. Consequently the AIT dismissed the appeal.
"As can be seen from the wording to that policy as recorded by the Adjudicator at paragraph 72, the policy does not apply where there are adequate reception arrangements in place. The policy is plainly confined to 'unaccompanied minors, not to minors who can reasonably be expected to be met and received by family members on return. (We note that this is made even clearer by the wording of at least some other Home Office policy statements on UASCs (Unaccompanied Asylum Seeking Children): which, as we understand it, more expressly confine their scope to minors who have no family to return to and where adequate reception arrangements cannot be established)."
The AIT likewise said in respect of the UNHCR advice, referred to earlier in this judgment, that the words "unaccompanied minor" could not sensibly mean someone who had adequate reception or family support arrangements on return.
"? under eighteen years of age, or who in the absence of documentary evidence appears to be under that age, and who is
? applying for asylum in his own right; and is
? without adult family members or guardians to turn to in this country". (see Asylum Policy Instructions, March 2001, paragraph 3.1)
He or she is not deprived of that status by virtue of the fact that there are adequate arrangements in their country of origin for their reception and care upon return. But this does, in my judgment, not avail the appellant. First of all, although the AIT's phraseology is open to criticism, it seems to me that at paragraph 9, which I have quoted earlier, the AIT was really seeking to deal with the circumstances where the policy of non-return applied, namely where adequate arrangements were not in place, rather than with the definition of unaccompanied minors. Secondly, and in any event, being placed in the category of unaccompanied minor does not by itself lead to the non-return of the individual. Under the policy, that does turn on whether adequate reception arrangements are available in the country of origin. So, as Mr Waite submits, the end result is the same, whether or not the AIT erred on the matter of definition.
"…simple humanity demands that any immigration decision to remove an unaccompanied child involves consideration of whether safe and adequate reception arrangements for the child can be made. We would not send an unaccompanied child to another country, whether or not that child had claimed asylum, unless we were satisfied that such arrangements had been made."
Mr Gill emphasises the word "satisfied" and the use of the past tense in referring to the making of the arrangements.
"without ensuring that adequate reception and accommodation arrangements are available on return."
Other documents refer to the Home Office having to be "satisfied" that such arrangements are in place, failing which the child should be granted Discretionary Leave to enter or to remain for 3 years or until his 18th birthday, whichever is the shorter period: see Instructions on Processing Applications from Children, paragraphs 13.3.2 and 13.4.1.
"what if any relief to grant in the light of the facts arising at the time it is considering the case." (paragraph 15, per Laws LJ, with whom the other members of the constitution agreed; emphasis added.)
The relevance of this approach is that by the time of the AIT's decision in the present case, the appellant had passed his 18th birthday. Indeed, he was almost 19 by the date the AIT's decision was promulgated. The Secretary of State now submits that by that stage his appeal under the policy relating to unaccompanied minors had become academic. He had enjoyed in practice the protection afforded by presence in this country up to and indeed beyond his 18th birthday, which was all that the Secretary of State's policy would have provided him with in terms of discretionary leave to remain. There is therefore no reason why the appeal should be allowed.
"I have borne in mind that he is still young (whatever date of birth is correct) and may well at times have been confused or muddled."
Therefore there has been no substantial prejudice to the appellant arising from the fact that the asylum interview was before the adjudicator.
"have particular regard to the possibility that a child will feel inhibited or alarmed. The child should be allowed to express himself in his own way and at his own speed." (paragraph 352)
One notes that, shortly after this adjudicator's decision, the then Chief Adjudicator issued a Guidance Note for adjudicators about the conduct of appeal hearings by adjudicators where the appellant was an unaccompanied minor seeking asylum: Guidance Note No. 8, April 2004. That reflects the range of considerations which need to be borne in mind.
Lord Justice Carnwath :
Lord Justice Waller: