ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER), FIRST TIER
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal, Civil Division
LORD JUSTICE HOOPER
LORD JUSTICE MOORE-BICK
| KA (AFGHANISTAN) & ORS
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Raza Husain QC and Ms Sonali Naik (instructed by Sutovic and Hartigan Solicitors) for SU
Mr Beckett Bedford (instructed by Sultan Lloyd Solicitors) for AK, EU, AR, QA, FU
Ms Joanna Dodson QC and Mr Anas Khan (instructed by Thompson & Co Solicitors) for SA
Mr Jonathan Hall and Mr Nicholas Chapman (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 27, 28 March 2012
(Transcript of the Handed Down Judgment of
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Lord Justice Maurice Kay :
"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 a 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 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 her safety."
It is not suggested that this was anything other than a faithful transposition.
"the courts have recognised that it is appropriate to require historic errors of the kind present here to be remedied. The fundamental point is that the Secretary of State has the power to grant a remedy and her historic errors are at least a mandatory relevant consideration in the exercise of that power."
The Rashid/S line of authority
"I agree … that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct [viz failure to have regard to the policy], and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field."
"41. I also have doubts about the weight put by the judgments upon the Department's conduct. The court's proper sphere is illegality, not maladministration. If the earlier decisions were unlawful, it matters little whether that was a result of bad faith, bad luck or sheer muddle.
It is the unlawfulness, not the cause of it, which justifies the court's intervention and provides the basis for the remedy …
45 … As I read [Pill LJ's] judgment, the steps in his reasoning … can be broken down as follows:
(i) Serious administrative errors by the Secretary of State at the earlier stage had resulted in 'conspicuous unfairness amounting to an abuse', and thus illegality.
(ii) The court should 'give such relief as it properly can'.
(iii) Although the applicant was no longer entitled to refugee status as such, the Secretary of State had a 'residual power' to grant indefinite leave.
(iv) The grant of indefinite leave would provide a remedy for the unfairness.
(v) There were no countervailing considerations of public interest.
(vi) Accordingly, 'the appropriate response in the circumstances' would be for the court to declare that ILR should be granted.
46. … the court itself had no power to grant ILR. Nor, on a conventional basis, did it have the power to direct the Secretary of State to grant ILR. The power and the discretion rested with the Secretary of State. It was not open to the court to assume that function … However, it was open to the court to determine that a legally material factor in the exercise of that discretion was the correction of injustice …
47. On that analysis of Rashid, the court's intervention was directed at the appropriate target and involved no conflict with Ravichandran. It respected the principle that the Secretary of State's decision should be made on the basis of present circumstances. But it recognised that those circumstances might include the present need to remedy injustice caused by past illegality."
"(i) A decision may be unlawful if it is reached in disregard of a relevant policy.
(ii) Past prejudice suffered in consequence of such a decision may be a relevant factor to take into account, even when that policy has ceased to be applicable."
SL was ultimately concerned with deportation rather than asylum although the "past prejudice" had taken the form of failure to have regard to a beneficial policy in the context of an asylum claim. The remedy was therefore directed at reconsideration of the decision to deport in the light of the need to correct injustice caused by the previous unlawful failure to apply the policy in relation to the asylum claim, albeit that asylum was no longer an issue.
Applying the Rashid / S line of authority to the present context
"I readily acknowledge the difficulties which may arise on the making of enquiries … In the present case, however, the Secretary of State did nothing at all to assist with tracing family members or to enquire about reception arrangements on return and the court has been invited to uphold that inactivity … What should be done will vary from case to case. Inactivity, combined with the failure to bring to the attention of the Tribunal the instruments cited in this judgment, was not, in my view, a permissible option.
The Secretary of State seeks to defeat the claim by reason of the appellant's failure to cooperate with the Red Cross. Tracing work by the ICRC would almost certainly have been assisted by a contribution from the Secretary of State, based on information available to her. The lack of cooperation does not relieve the Secretary of State of her duties … the duty cannot be ignored."
Lloyd LJ added (at paragraph 68):
"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."
"that leaves a degree of uncertainty as to the definition of a particular social group. Does membership cease on the day of the person's eighteenth birthday? It is not easy to see that risks of the relevant kind to who as a child would continue until the eve of that birthday, and cease at once the next day."
Given that the kinds of risk in issue include the forced recruitment or the sexual exploitation of vulnerable young males, persecution is not respectful of birthdays – apparent or assumed age is more important than chronological age. Indeed, as submissions developed there seemed to be a degree of common ground derived from the observation of Lloyd LJ.
The issue at the heart of these cases
"The central issue which the Upper Tribunal had to determine … was whether on the evidence it could properly conclude that these children had family in Afghanistan who were willing and able to receive and protect them."
"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."
"… the regulation 6 duty is in terms said to arise as soon as an asylum application is lodged and it is plainly intimately connected with the determination of that application. This suggests that it should be treated as a necessary element in the determination of an asylum application."
However, he went on to conclude that failure to discharge the duty to endeavour to trace does not lead axiomatically to a successful outcome for the child's application on appeal. It is necessary for there to be a careful consideration of the facts of each individual case.
"are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom." (Section 55(1)(a))
In HK, the UT had not addressed section 55 and, for that reason, the Secretary of State conceded that the cases should be remitted. (The issue in this Court was whether the appellants should receive a favourable outcome without the need for remittal). Elias LJ said (at paragraph 47):
"… even if the Upper Tribunal had had regard to the section 55 duty, it would have been entitled to conclude that it was not in a position properly to give effect to that duty without the information (or lack of it) resulting from the Secretary of State's tracing inquiries."
In HK, as previously in DS, the disposal took the form of remittal. One of the remitted cases in HK concerned an appellant who had turned 18.
The emerging principles
The factual matrix
"I do not suggest that it would in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. It will depend on a range of factors which would include the circumstances in which the child came to the UK, the age of the child and whether he or she has been encouraged to make contact. But in my judgment it is in principle an inference which it is legitimate for a court to draw where the evidence justifies it and it is not an improper inference for the Upper Tribunal to make on the evidence before it."
Indeed, Elias LJ considered (at paragraph 51) that, on remittal, an adverse inference was in principle open to the UT on the evidence of a lack of cooperation in that case. Even in the context of a clear breach of the duty to endeavour to trace, a tribunal will retain a certain robustness in assessing the evidence of a young person who has demonstrated a deep-rooted resistance to being returned to his country of origin.
The Children Act 1989 (as amended)
Lord Justice Hooper:
Lord Justice Moore-Bick: