England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2013

Mr Justice Lewis :

INTRODUCTION

1. This is a claim by a national of Afghanistan challenging a decision of the Secretary of State of 2^nd November 2012 to issue directions that he be removed to Afghanistan. The Claimant is now 19 years old. He came to the United Kingdom at the age of 15 in 2009. He applied for leave to remain in 2009 and again in 2012 contending that he would be at risk of persecution in Afghanistan. The applications were rejected by the Secretary of State in 2009 and in March 2012 respectively. An appeal against the second decision was dismissed by the First-tier Tribunal in a determination promulgated on 17 May 2012 which found that the Claimant was not at risk of persecution if he were returned to Afghanistan and that removal would not involve a breach of his rights under the European Convention on Human Rights. There has been no appeal or challenge to those conclusions.
2. The Claimant, however, contends that, when he first came to the UK as an unaccompanied minor at the age of 15, the Secretary of State failed to comply with her duty under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 ("the Regulations") to endeavour to trace his family. He contends that, by reason of that breach of duty, he has suffered prejudice or disadvantage and it would now be so unfair to remove him from the United Kingdom that no Secretary of State, acting reasonably, would do so.

The Facts

3. The Claimant was born on 1 January 1994 in Ragnia village in the province of Jalalabad. He lived there with his mother and two brothers. A sister, sadly, died. The Claimant's mother also died when he was aged 14. He continued to live in the family home and a neighbour looked after him and his siblings. In the six years before the Claimant left Afghanistan, his father only came to the family home about once a year.
4. When the Claimant was 14, the government came to his home and detained his father. The Claimant was not at home at the time but when he did return home he was told what had happened. He says that he was told that his father had been involved with Hezb-e-Islami, that he had been a commander with that group and that he had been detained by the Afghan government. The Claimant was told that he, too, would be in danger because of his association with his father. He left his village and travelled by foot to the home of his aunt (his mother's sister) and uncle. In his asylum interview, he says that he spent about 1 month at his uncle's home. His uncle paid an agent to arrange for the Claimant to leave Afghanistan. He arrived in the United Kingdom on 17 March 2009 when he was 15 years old.
5. The Claimant applied for asylum on his arrival on 17 March 2009 and asked to be recognised as a refugee under the 1951 Geneva Convention relating to the Status of Refugees on the basis that he had a well-founded fear of persecution in Afghanistan because his father had been a commander in Hezb-e-Islami and had been detained by the government. He said that his father's political views would be imputed to him and he, too, would be at risk of persecution. The Secretary of State considered but rejected the claim for asylum and for humanitarian protection under the Immigration Rules for the reasons given in a letter dated 16 September 2009. The Secretary of State did, however, grant the Claimant discretionary leave to remain until he was 17½ years old or until adequate reception arrangements could be made for him in Afghanistan in accordance with her policy on unaccompanied child for whom adequate reception arrangements could not be made. The Claimant did not appeal the decision rejecting his claim for asylum. The Secretary of State made no attempt to trace the Claimant's family in Afghanistan either then or at any time when he was a minor.
6. On 30 June 2011, the Claimant applied to vary his leave to remain again on the basis that he would face persecution or breach of his human rights on return to Afghanistan, again because his father was a commander in Hezb-e-Islami and had been detained for his political views and his father's views would be imputed to him and he, too, would face a risk of persecution in Afghanistan. That application was rejected by a letter dated 15 March 2012. The Secretary of State considered that the Claimant had not established that he faced a real risk of persecution for the reasons given in the letter. The Secretary of State also considered that, having reached the age of 18, it would no longer be unduly harsh for the Claimant to return to his home village in Jalalabad or to relocate to another area such as Kabul.
7. The Claimant appealed against the decision to the First-tier Tribunal (Immigration and Asylum Chamber). As part of his evidence prepared for the tribunal hearing, the Claimant made a witness statement in which he said that he had not had contact with his aunt or uncle since arriving in the UK. He said that he had tried calling his uncle on his uncle's mobile phone but the number was disconnected and the Claimant had now forgotten the number and was not able to call him. The Claimant said that he had made contact with a friend and other people from the neighbourhood of his village and asked them to assist him in providing evidence to show that his life was at risk if he returned to Afghanistan.
8. The First-tier Tribunal found that the Claimant was a credible witness and said:

"I accept that the Appellant is an Afghan national whose mother has died. I accept that he saw his father about once a year for the 6 years prior to leaving Afghanistan. I accept that he has been told by others that his father was involved with Hezb-e-Islami, held a commander's role and was detained. I find no reason to doubt that the Appellant was told that he was in danger."

9. Despite the fact that the Claimant had been told and believed that he was in danger, the First-tier Tribunal found on the facts that he did not have a well founded fear of persecution. The First-tier Tribunal said:

"22. However I do not accept that the facts as put forward by the Appellant are such as to give him a real and well founded fear of persecution. The Appellant's father was detained in 2008 when the Appellant was around 14 years old. The Appellant was never involved in his father's activities and indeed knew nothing about them. The Appellant lived either at home or with neighbours until his father's detention and does not suggest that he was ever troubled by the authorities. If there was any belief that he had any involvement in his father's activities there can be no reason why he would not have been challenged about this whilst he was living at home, the authorities would not need to wait until they had detained his father. The Appellant was never approached. There is no suggestion that the authorities had a persecutory interest in the Appellant, his mother or indeed anyone other than his father. There is no suggestion that the authorities believed that the Appellant or his mother held any information about Hezb-e-Islami. The Appellant says that his neighbour told him that the authorities wanted to see him after the detention of his father. They may well have but there can be no reason at all why these authorities never having troubled the Appellant before would then think that this 14 year old child was involved in any way.

23. The Appellant's suggestion that the authorities may wish to detain, mistreat or even kill him is wholly speculative and without any logical basis. There is no motivation for the authorities to persecute the Appellant; he was a teenager living at home who had no information to give and on his account there is no reason at all why the authorities would believe that he has any information to give. Whereas I accept the facts of the Appellant's account I do not accept the credibility of his fear. In my finding the Appellant did not leave Afghanistan with a real and well founded fear of persecution rather he left at the behest of his uncle.

24. There is no reason to believe that the Appellant will face a persecutory interest on return because I do not accept that he was facing any persecutory interest before he left. I do not accept that having been outside Afghanistan for the last 4 years will cause the Appellant to be of adverse interest and I do not accept that there is any reason for the authorities to consider that the Appellant, a person with no personal involvement with Hezb-e-Islami will have nevertheless been involved or will decide to be involved in the future simply because his father was with Hezb-e-Islami some years ago. There is no objective evidence that would suggest otherwise.

25. Even if the Appellant faced adverse interest in his home area, and I do accept that he does, there is no reason why he would face such adverse interest in Kabul. The appellant is now 18 years old and he was last in Afghanistan at the age of 14. He has never previously been to Kabul. It is facile to suggest that in a city of such size he may be recognised because of his family resemblance to his father either by the authorities or by Hezb-e-Islami. There is no basis for his suggestion that he will be identified by his name. Was he to be recognised there is no reason at all why the authorities would have adverse interest in him. There is no reason why Hezb-e-Islami would want to recruit him and there is no objective evidence to suggest that Hezb-e-Islami forcibly recruit the sons of other Hezb-e-Islami members.

26. In my finding the Appellant did not leave Afghanistan fearing persecution for a Refugee Convention reason and he does not have a Refugee Convention reason for fearing persecution on a return. The Refugee Convention appeal is dismissed."

10. The First-tier Tribunal therefore dismissed his appeal. It considered that the Claimant was not entitled to asylum or humanitarian protection and that any interference with his private life in the United Kingdom was proportionate to the legitimate aim of immigration control so that return to Afghanistan would not breach Article 8 of the European Convention on Human Rights.
11. In the light of that decision, the Secretary of State issued directions on 2 November 2012 that the Claimant be removed to Afghanistan on 19 November 2012. The Claimant sought judicial review of that decision. The Claimant was not removed as an order was made by Collins J. on 16 November 2012 restraining the Secretary of State from removing him pending determination of the claim for judicial review. Permission was granted by Philip Mott Q.C. sitting as a deputy High Court Judge on 18 December 2012 to challenge the lawfulness of the underlying decision to remove the Claimant.
12. The Claimant contends that the decision to remove him to Afghanistan would be unlawful. He relies on the decision in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, [2013] 1 WLR 615 (referred to in this judgment as "KA"). He says that he has suffered prejudice or disadvantage as a result of the failure of the Secretary of State to comply with her duty to endeavour to trace his family and that, in the light of that prejudice, it would be unreasonable and unlawful now to remove him from the United Kingdom. The Claimant contends that the prejudice he has suffered is the following:

(1) if the Secretary of State had sought to trace his family when he first came to the UK and had his uncle's mobile telephone number, she would have contacted the uncle and he could have given an explanation of the reasons why he considered the Claimant was at risk and why it necessary to send him to the UK; the failure to trace, therefore, was said to have deprived the Claimant of evidence which was potentially material to his claim for asylum (see, in particular, paragraphs 12 to 13 of the grounds of claim and paragraphs 35 and 37 of the Claimant's skeleton of 25 May 2013); or

(2) the Claimant would have benefitted from a consideration of his position as a lone young person while he was under 18. As explained at the hearing of the judicial review and in a supplementary skeleton filed shortly before the hearing, he had lost the opportunity to have that issue properly considered. If the Secretary of State had tried to trace the family, she would have known whether or not the family was in fact available to take care of the Claimant on his return and either look after him or make arrangements for him to return to his village. Alternatively, it is said that the Secretary of State would not have been able to contact the uncle, that there would have been no family to receive the Claimant on his return to Afghanistan and to look after him or arrange for him to return to his village and there is no evidence that the Secretary of State would have been able to make other arrangements for him to return to his village. As he would then be a child alone in Kabul, he would be vulnerable to exploitation and ill-treatment and, if that were the position, the Secretary of State would have granted him asylum for a Convention reason.

THE LAW

13. The background to this case lies in the decision in Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] INLR 550. The general rule is that decision-makers dealing with asylum claims consider them on the basis of the facts and circumstances prevailing at the time of the decision: see Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97.
14. Rashid concerned the circumstances in which it was appropriate to depart from that general rule. In Rashid, an Iraqi Kurd claimed asylum on 4 December 2001. That claim was refused on 11 December 2001. In refusing the claim, the relevant officials were unaware of the Home Office policy that asylum would not be refused on the basis that the claimant could relocate to the Kurdish Autonomous Zone within Iraq. Had they been aware of, and applied, that policy, the individual would have been granted asylum. When his legal advisers became aware of the policy, they asked the Secretary of State to reconsider the refusal of asylum. By the time the decision was reconsidered, however, the policy had changed and, on the policy in force at the date of the reconsideration, individuals could be refused asylum on the basis that they could relocate within Iraq. The Secretary of State contended that he was entitled to determine the matter on the basis of the facts as they were at the date of the reconsideration. The individual contended that the Secretary of State had failed to apply the relevant policy to his claim, that there had been a breach of his legitimate expectations and that the Secretary of State's conduct had been so unfair as to amount to an abuse of power.
15. The Court of Appeal held that, in the particular circumstances of the case, there had been such unfairness as to amount to a misuse of power calling for the intervention of the court (see paragraph 36 of the judgment of Pill L.J., with whom May L.J. agreed and also paragraph 52 of the judgment of Dyson L.J. as he then was). The Court of Appeal granted a declaration that the individual concerned be granted indefinite leave to remain as that provided an appropriate remedy for the unfairness in the circumstances (see paragraph 39 of the judgment).
16. The ratio of the decision in Rashid has subsequently been understood as being that (1) a decision may be unlawful if it is reached in disregard of a relevant policy and (2) that past prejudice suffered in consequence of such an unlawful decision may be a relevant factor to take into in account in reaching subsequent decisions, even when the policy has ceased to be applicable: see paragraph 13 of the judgment of Maurice Kay L.J. in KA, with whose judgment the other members of the Court agreed, and paragraph 4 of the judgment of Sir Stanley Burnton in EU (Afghanistan), FU (Afghanistan), SU (Afghanistan) AR (Afghanistan), QA (Afghanistan) and AK (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 32 (referred to in this judgment as "EU") with whose judgment the other members of the Court agreed.
17. The Court of Appeal has considered the application of the decision in Rashid and similar cases to situations where there has been a failure by the Secretary of State to comply with her duty under regulation 6 of the Regulations. The duty can conveniently be referred to as the duty to endeavour to trace. Regulation 6 provides that:

"Tracing Family members of unaccompanied minors

6.-(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.

(3) For the purposes of this regulation –

(a) an unaccompanied minor means a person below the age of eighteen who arrives in the United Kingdom unaccompanied by an adult responsible for him whether by law or custom and makes a claim for asylum;

(b) a person shall be an unaccompanied minor until he is taken into the care of such an adult or until he reaches the age of 18 whichever is the earlier;

(c) an unaccompanied minor also includes a minor who is left unaccompanied after he arrives in or enters the United Kingdom but before he makes his claim for asylum."

18. Regulation 6 of the Regulation implements Article 19.3 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. That provides that:

"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."

19. The Court of Appeal in KA held that the Secretary of State had systematically failed to comply with her duty to endeavour to trace families of unaccompanied minor children coming to the United Kingdom from Afghanistan. The Court of Appeal in KA and in the subsequent decision of EU then had to consider the effect of that breach of duty. In KA, paragraph 1 of the judgment explains the background in the following way:

"1. These appeals have been heard together because they raise a number of generic legal and factual issues and provide the court with the opportunity to consider some difficult problems in the round before determining the individual cases. The claimants 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 for the Home Department refused the asylum application but, pursuant to her policy on unaccompanied minors, granted discretionary leave to remain until the age of 17½. Shortly before reaching that age, each claimant made an application for asylum or humanitarian protection which was refused. Each appealed unsuccessfully to the First-tier Tribunal, which, except in the cases of SA and QA, determined the appeal before the claimant had attained the age of 18. Subsequent appeals to the Upper Tribunal (Immigration and Asylum Chamber) were heard and dismissed after the claimants had attained their majority. In each case, the Upper Tribunal 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 claimant's recently attained majority. When granting permission to appeal to this court in some of the cases, Laws LJ said that this gave rise to the question whether an appellant in these circumstances "should retain the advantages (in immigration terms) of his minority"."

20. At paragraph 17 of the judgment in KA, Maurice Kay L.J. said this:

"17 Having accepted that there was a systemic breach of the duty to endeavour to trace, I now have to consider whether that may trigger the Rashid / S principle. It is a complicated question and not simply a matter of the systemic breach entitling these claimants, without more ado, to the allowing of their appeals with remittal to the Secretary of State to consider grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the claimants were over 18 when their cases came before the First-tier Tribunal or the Upper Tribunal and, as a consequence and in accordance with the Ravichandran principle, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid / S principle applies, it modifies the strict application of the Ravichandran principle."

21. At paragraph 25 of the judgment, Maurice Kay L.J. emphasised that when dealing with individual cases much will depend upon their specific facts and indicated that there was a hypothetical spectrum of cases. The Court of Appeal, in EU, then sought to apply the principles set out in KA to the facts of the individual cases. At paragraph 4, Sir Stanley Burnton set out the applicable principles to be derived from KA. At paragraph 5, Sir Stanley Burnton observed that:

"….. In cases that are concerned with claims for asylum, the purpose of the grant of leave to remain is to grant protection to someone who would be at risk, or whose Convention rights would be infringed, if he or she was returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the Article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such as a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as "the protective principle", but this is a misnomer: the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the Court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the Court's displeasure at her conduct, or as a sanction for her misconduct….."

22. Nonetheless, as Sir Stanley Burnton recognised at paragraph 7 of his judgment in EU, the Secretary of State's breach of duty may be relevant to a decision taken by her or the Tribunal. That may be because the failure is relevant to the assessment of risk on return. It may be because the consequences of the breach of duty are relevant to the decision that the Secretary of State or Tribunal and examples of that were given.

DISCUSSION

23. Against that background, I turn to the particular facts of this case. The starting point, in my judgment, is that the First-tier Tribunal has found that the Claimant is not at risk of persecution in Afghanistan. Consequently, he does not qualify for asylum under the Refugee Convention or for humanitarian protection. He has no other entitlement to be in the United Kingdom. Removal to Afghanistan would not breach any right he has under the European Convention on Human Rights. Against that background, the Secretary of State has determined that the Claimant, who is now over 18, should be removed to Afghanistan. That decision is, absent, any other factors, a lawful decision.
24. I turn therefore to the various reasons why the Claimant says it would be unlawful to base a decision to remove him on the facts and circumstances that presently apply in his case. These reasons are based on the fact that the Secretary of State did not comply with her duty to endeavour to trace the Claimant's family when he first came to the United Kingdom at the age of 15. The Claimant says that he can demonstrate that he has suffered prejudice or a disadvantage as a result of that failure. He says that, in consequence, it would not be fair to base a decision on the present circumstances as to whether or not he is at risk and, indeed, to do so would be so unfair as to amount to an abuse of power making it unlawful and unreasonable for the Secretary of State to remove him from the United Kingdom.
25. The first alleged prejudice is said to be that if the Secretary of State had endeavoured to trace the uncle when the Claimant first came to the United Kingdom and claimed asylum and when he still had his uncle's phone number, the uncle would have been able to provide an explanation of why he considered that the Claimant was at risk. The uncle would have explained why the Claimant needed to be sent to the UK in the light of his father's disappearance as a consequence of his activities with Hezb-e-Islami. Either the uncle would have volunteered the information to the Secretary of State or, if he had been traced, the Claimant could have obtained the information from him.
26. However, it is clear from paragraphs 22 to 25 of the judgment of the First-tier Tribunal that the Tribunal considered that, even though the Claimant had been told that he was at risk, the objective facts demonstrated that the fear was not well-founded. Those objective facts included the fact that the Claimant had lived at home or with neighbours and had never been troubled or approached by the authorities. There was no suggestion that the authorities had demonstrated any interest in the Claimant, or his mother or indeed anyone other than his father. The Tribunal therefore concluded that there was no basis for considering that the authorities would have any interest in a person with no personal involvement or knowledge simply because his father had been involved with the Hezb-e-Islami group. The Claimant has not, in my judgment, demonstrated any real prejudice or disadvantage in the pursuit of his asylum claim, based on the risk he claims he would face because of his father's activities, as a result of the failure of the Secretary of State to endeavour to trace his family in Afghanistan. There is nothing to suggest that the assessment of his claim to asylum, based on the facts and the position in 2012, was in any way affected by any breach of the duty to endeavour to trace.
27. I note, further, that even if the Claimant had faced adverse interest in his home area which the Tribunal did not accept (there is, I think, a "not" missing from the second line of paragraph 25 of its determination), there was no evidence to suggest that the Claimant, now aged 18, would face adverse interest in Kabul when he had never been there and was last in Afghanistan when he was 14 years old. Again, in the light of that finding by the Tribunal, the Claimant has not, in my judgment, demonstrated that he has suffered prejudice or disadvantage in the way that his claim to asylum, based on a risk said to arise from his connection with his father's activities, was considered. He certainly has not established that there was any justification for departing from the finding of the First-tier Tribunal that, on the present facts and circumstances, he would not be at risk of persecution if he were returned to Afghanistan or that it would be so unfair to return him now that it would be unreasonable to do so.
28. I turn next to the claim that the Claimant has been prejudiced as a result of the failure to endeavour to trace the Claimant's family, as the Secretary of State was not therefore able properly to assess the position of the Claimant as a lone child if he were returned to Afghanistan. The claim has been put in different ways in the Claimant's original skeleton argument dated 25 May 2013, the supplemental skeleton dated 17 June 2013 and at the hearing on 20 June 2013. In summary, the argument proceeded as follows. If the Claimant were an unaccompanied minor with no family to receive him in Afghanistan, and absent any other circumstances, he would be at risk if he were returned to Afghanistan. As a result of the failure to endeavour to trace, as a minimum, he lost the opportunity to demonstrate that he might have no family to return to in Afghanistan. In oral argument, counsel for the Claimant went further and submitted that even though the Claimant had lived safely in his home in his village after his mother's death, and was being looked after by a neighbour, his uncle could not in fact have been traced, and so the Secretary of State would not have been able to be sure that his family would either look after him or arrange for him to return to his village. The Secretary of State had not demonstrated that she would, or would be able, to make arrangements for him to return to his village if he were returned to Kabul. If he was not at risk before he left Afghanistan, because he was living safely in his village, the fact that his uncle could not be traced and no other arrangements could be put in place to return the Claimant to his village would mean that if he was returned to Afghanistan at the age of 15, he would be a young boy, with no home, left in Kabul and would be prey to exploitation or ill-treatment.
29. The argument on prejudice or disadvantage has been put in this way, it seems, largely to reflect the case law. First, it is recognised that a person who has no family may, depending on the particular facts of the case, be subject to risks of exploitation or ill-treatment: see paragraph 6 of the decision in LQ v Secretary of State for the Home Department [2008] UKAIT 00005. If, however, there were family members available to take care of him on his return, that would remove that risk: see AA (unaccompanied minors – reception on return) Afghanistan [2005] UKAIT 00143. Even if there were no family available, it would not automatically mean that any young person would be at risk of exploitation or ill-treatment as the Court of Appeal recognised in HK (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 315 at paragraph 36. That would depend, amongst other things, upon the location where the child would live on return and all other relevant facts. Furthermore, the mere fact that the individual falls within the policy of the Secretary of State to grant discretionary leave because the person is an unaccompanied minor for whom adequate reception arrangements in the state of origin cannot be made at present does not automatically mean that the child faces a real risk or serious possibility that his basic human rights will be so severely violated that the child will suffer what amounts to persecution: see paragraph 10 of ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 470.
30. In the present case, the Claimant had been living safely in his home in his village with his siblings after the death of his mother when he was 14. He was looked after by a neighbour. There is nothing to indicate that, if he had continued to live there, he would have faced exploitation or ill-treatment of the kind and severity which would have amounted to persecution or call for humanitarian protection. The Claimant has never suggested that that is the case. Indeed, in his written statement prepared for the Tribunal hearing, the Claimant said that he had contacted a friend and other people from the neighbourhood in order to get them to help him to obtain further evidence to support his claim that his life was at risk because of his father's activities, not because of any other difficulties he faces in his village. When he left his village, he lived with his aunt and uncle for a month. His uncle was prepared to pay an agent to make arrangements for the Claimant to leave Afghanistan. If therefore, his uncle and aunt had been prepared to look after him again if the Claimant returned to Afghanistan, or if they had been prepared to make arrangements for him to return to his village, or if other arrangements were made to enable that to happen, the Claimant would be unlikely to have established a claim to asylum or humanitarian protection on the basis that he was a lone, vulnerable child subject to exploitation and ill-treatment. The Claimant cannot, therefore, demonstrate that he would have been bound to have been granted asylum at the age of 15 and the reason why he was not granted asylum was because the Secretary of State had not carried out her duty to endeavour to trace his family. He cannot establish or demonstrate that level of prejudice or disadvantage.
31. In reality, in my judgment, the most that the Claimant has lost is a possibility that, if the Secretary of State had attempted to trace the family, she might have been unable to contact them. She would then have had to consider whether to grant asylum on the basis that the Claimant would be a lone, vulnerable child if he were returned to Kabul (assuming that there were no arrangements she could make to ensure his return to his village). In my judgment, that loss of a possibility does not amount to the establishment of a disadvantage or prejudice of the sort contemplated in KA and EU that would justify departing from the decision that, on the basis of the present facts and circumstances, there was no risk to the Claimant if he returned to Afghanistan.
32. The starting point, in my judgment, is that a claim for asylum or humanitarian protection is based on an assessment of the facts at the time that the decision is taken. On that basis, the First-tier Tribunal found that the Claimant was not at risk of persecution in Afghanistan and did not qualify for asylum under the Refugee Convention or for humanitarian protection. He has no other entitlement to be in the United Kingdom. Removal from the United Kingdom would not involve any breach of any rights under the European Convention on Human Rights. The Claimant is now an adult and there is no evidence of any present risk to him in terms of exploitation or ill-treatment (even recognising that there is no absolute clear dividing line, for those purposes, between minority and adulthood). In those circumstances, the Secretary of State has decided to remove the Claimant. The real question, in my judgment, is whether the failure to comply with the duty to endeavour to trace the Claimant's family has led to such prejudice that it would now be so unfair to remove the Claimant, notwithstanding that he is not at risk of persecution in Afghanistan, that no reasonable Secretary of State would do so.
33. In my judgment, the loss of a possibility that, on one possible set of facts, a different decision could conceivably have been reached earlier in the process, when the Claimant was still a child, does not render the decision to remove the Claimant unlawful. There is no such unfairness as would suggest that the Secretary of State would be acting unlawfully if she decided to remove the Claimant now on the basis of the present facts. The circumstances are not such as to suggest that there is a justification for departing from the general principle in Ravichandran that decisions are taken on the basis of the facts and circumstances prevailing at the time of the decision. The decision to remove the Claimant is therefore lawful.
34. A number of other points have been advanced in the skeleton arguments, or orally, on behalf of the Claimants. I do not deal with them in detail. Suffice it to say that none of them, in my judgment, demonstrates that the decision of the Secretary of State to remove the Claimant is unlawful.

CONCLUSION

35. For those reasons, this claim for judicial review is dismissed. The decision of the Secretary of State to remove the Claimant to Afghanistan is a lawful decision.