ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAPTER); FIRST TIER
Strand, London, WC2A 2LL
B e f o r e :
(VICE PRESIDENT OF THE CIVIL DIVISION OF THE COURT OF APPEAL)
LORD JUSTICE JACKSON
SIR STANLEY BURNTON
| EU (Afghanistan)
|- and -
|Secretary of State for the Home Department
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Raza Husain QC and Sonali Naik (instructed by Sutovic & Hartigan) for SU
Jonathan Hall and Nicholas Chapman (instructed by the Treasury Solicitor) for the Secretary of State
Hearing date: 17 December 2012
Crown Copyright ©
Sir Stanley Burnton :
The appellants are young men from Afghanistan who arrived in this country as unaccompanied minors, aged 15 or 16, and claimed asylum. In each case the Secretary of State refused the asylum application but, pursuant to her policy on unaccompanied minors, granted discretionary leave to remain (DLR) until the age of 17½. Shortly before reaching that age, each appellant made an application for asylum or humanitarian protection which was refused. Each appealed unsuccessfully to the First-Tier Tribunal (FTT), which, except in the cases of SA and QA, determined the appeal before the appellant had attained the age of 18. Subsequent appeals to the Upper Tribunal (UT) were heard and dismissed after the appellants had attained their majority. In each case, the UT approached the assessment of risk on return on the basis of the facts as at the time of the hearing before it, including the fact of the appellant's recently attained majority.
I shall refer to the judgment of Maurice Kay LJ as "the Judgment".
The applicable principles
(1) The analysis of Rashid by Carnwath LJ (as he then was) in R (S) v Secretary of State for the Home Department  EWCA Civ 546  INLR 450, is correct: paragraph 13 of the Judgment.
(2) The Secretary of State had indeed failed to comply with her duty to endeavour to trace.
(3) In particular, she did not discharge her duty by merely informing a child of the facilities of the Red Cross: paragraph 24(1) of the judgment.
(4) This was a systemic breach. The Secretary of State "failed to discharge the duty in relation to unaccompanied minors from Afghanistan because she adopted the policy of granting them leave to remain until they reached the age of seventeen and a half, whereafter any further application would be considered on its merits. By that time, of course, the duty to endeavour to trace would be close to expiration because of the imminence of majority": paragraph 16 of the judgment.
(5) A failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim: paragraph 24(2).
(6) Such a failure may also be relevant to a consideration of the section 55 duty: paragraph 24(3).
(7) Furthermore, the assessment of risk of return is not subject to a bright line rule, under which risk may be considered to be necessarily reduced or to have ceased on a claimant's actual or assessed eighteenth birthday: paragraph 18 of the judgment.
There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage.
… I have the gravest difficulty seeing how the fact that the challenged administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power giving rise to conspicuous unfairness, can extend to the remedies available to the courts.
… given his attempt to mislead the authorities here by making a fabricated claim, initially denying having been fingerprinted and saying that he had never travelled by boat even though he was detained on an island in Greece, I find that I can place no reliance on his claim that he is not in touch with his family. I have been shown correspondence with the Red Cross who say that they are unable to trace the Appellant's brother. This is not perhaps surprising given that the only information provided by the Appellant is his brother's name and the name of the village where he used to live. I note that he has not apparently provided them with the names of his mother and sister and I do not accept that the letters from the Red Cross demonstrate that he is unable to contact his family. In addition I note that he has an aunt who lives in Kabul. It is a matter for him and his family whether he remains in Kabul or returns to his village but I do not consider that it would be unreasonable for him to relocate to Kabul ….
I have set out [the facts] at some length in order to make it clear why I accept that the core of his original account is probably true but why there is very good reason to doubt much of the new evidence now presented. Furthermore, I find it inherently implausible that what he did when he was just 8 years old would, so many years later, have set off a blood feud. If it remained relatively safe for him to remain in the same locality for years I find it simply not credible that he could not now return to that area. Even were it not safe to return to exactly the same location I find it highly unlikely that if the appellant were to return he would face a real risk of being tracked down and identified elsewhere in Kabul, a city with a 7-figure population. … I find that he is likely neither to be persecuted nor seriously ill-treated for the reasons he has given.
12. With regard to the tracing obligation, that was not an essential part of the asylum process but in any event the Appellant's evidence was that he had tried and failed to contact his uncle in Afghanistan using the phone number provided. The Appellant has not shown that if the Home Office had tried to trace his family they would have had any more success as they would have had the same information that the Appellant had, although I note it was found that it had been shown he is an orphan. I am not satisfied that the Appellant has shown that he has suffered a loss or disadvantage by the Secretary of State's failure to apply the tracing obligation.
13. If the Appellant's position is to be considered now then neither section 55 or the tracing obligation would apply. In the absence of evidence of a loss or disadvantage to the Appellant I find that the decision is not in accordance with the law. If the decision were to be reconsidered by the Secretary of State very different considerations would apply and there is nothing to show that an advantage would be gained at this stage, other than delay.
14. As the decision is in accordance with the law, the question arises whether the decision to remove the Appellant is proportionate in the circumstances. The Appellant is now 18 and has been in the UK since 2008 and has received support from his foster family and has been receiving education in the UK. The findings of the Immigration Judge suggest that he has an uncle in Kabul to whom he could turn to support. The Appellant has not provided evidence of friendships or relationships of unusual strength or durability. On return he would have the advantages of the UK education and has shown that he is an adaptable individual. The evidence does not show that his removal would be disproportionate.
Accordingly, FU's appeal was dismissed.
Lord Justice Jackson
Lord Justice Maurice Kay