QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
33 Bull Street
B e f o r e :
| THE QUEEN
on the application of RAHIM HASHEMI
|- and -
THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Jim Tindal (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 22 July 2013
Crown Copyright ©
Mr Justice Hickinbottom:
"(1) This section applies where a person has made an asylum claim and (a) his claim has been rejected by the Secretary of State, but (b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the [First-tier] Tribunal against the rejection of his asylum claim."
However, the Claimant did not exercise that right.
"The re-assessment of your age took place on 26 January 2011. This was prior to the expiry of your leave on 1 May 2011. However, there has been a delay in (a) receiving the age assessment from Solihull Council, and (b) [on] the part of the [UKBA] in implementing the outcome of your new age and in reviewing the amount of Discretionary Leave you qualify for. In order to avoid any potential disadvantage to you it has been decided that, if you submit the necessary form to apply to extend your leave within the next two weeks, your case will be dealt with as being an in-time application. If you do not submit the necessary form to apply to extend your leave within the next two weeks your case will be dealt with as being out of time. In the event of you failing to apply for an extension of your leave you will be expected to leave the UK as soon as possible.
Subject to you applying for an extension of your leave within the next two weeks, your case is being treated as if you had a period of leave remaining. Therefore there is no statutory right of appeal, there being an in-country right of appeal only where all [emphasis in the original] existing leave is being taken away.
A revised immigration status document will be issued to you shortly. You should submit this document with any application for further leave."
i) A person may be given leave to enter the United Kingdom (or, if already here, leave to remain) for an indefinite or limited period (section 3(1) of the Immigration Act 1971 ("the 1971 Act")). The Claimant was given leave for a limited period, i.e. until 1 July 2012.
ii) When leave is granted for a limited period, it may be varied by extension (section 3(3)(a)).
iii) Section 4(1) provides:"… [T]he power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a)…, shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected…".Further, regulation 4(1) of the Immigration (Notices) Regulations 2003 (SI 2003 No 658) provides (so far as relevant to this claim):"… [T]he decision-maker must give written notice to a person of any immigration decision… taken in respect of which is appealable."
iv) Where an application to extend the period is made and not determined before the leave expires, then the period of leave is automatically extended until the application is determined or withdrawn (section 3C(1) and (2)(a)), including for the period in which an appeal against a refusal to vary might be brought (section 3C(2)(b)) and, if an appeal is brought, whilst that appeal is pending (section 3C(2)(c)).
v) By section 82(1) of the 2002 Act, an appeal to the First-tier Tribunal is granted in respect of, amongst others, the following decisions listed in section 82(2):"(d) refusal to vary a person's leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain(e) variation of a person's leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain…(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1971… (control of entry: removal)…(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006… (removal: persons with statutorily extended leave)...".For decisions described in section 82(2)(d), (e) and (ha), there is a right to an in-country appeal; but for a decision described in section 82(2)(g), the right is generally to an out-of-country appeal only (section 92(1) and (2)). However, where the applicant has made an asylum or human rights claim whilst in the United Kingdom, then a decision that a person is to be removed by way of directions under section 10 is subject to an in-country appeal (section 92(4)(a)), unless the Secretary of State certifies the asylum and human rights claims to be clearly unfounded (section 94(2)).
vi) Section 47(1) of the Immigration, Asylum and Nationality Act 2006 ("the 2006 Act), as enacted, provides:"Where a person's leave to enter or remain in the United Kingdom is extended by section 3C(2)(b)… of the [1971 Act], the Secretary of State may decide that the person is to be removed from the United Kingdom, in accordance with directions given by an immigration officer if and when the leave ends."In 2011, the Secretary of State took the view that, when an in-time application was made to extend a period of leave, section 47 enabled her to issue a single decision letter both refusing the application and making a removal decision. That was certainly the intention of the provision (see statement of the Minister for Justice Baroness Ashton of Upholland when introducing the relevant amendment to the Immigration, Asylum and Nationality Bill in the House of Lords, Hansard 7 February 2006, cols 520-1, quoted by Sullivan LJ in Secretary of State for Justice v Ahmadi  EWCA Civ 512 ("Ahmadi CA") at ).
vii) It was also the view of the Secretary of State that, when a decision was taken to curtail discretionary leave under the Unaccompanied Asylum Seeker Child Policy because of (e.g.) a revised assessment of date of birth, that leave was curtailed at the date of decision, irrespective of notification to the relevant individual. On that basis, the Claimant's leave was terminated on 1 May 2011; and so, in August 2011, he was in the United Kingdom unlawfully, and liable to be the subject of a removal decision under section 10 of the 1971 Act. Furthermore, if, as a result of the 8 August 2011 letter, the Claimant had applied for variation of leave by way of extension, because on that premise by then he did not have leave, the provisions for automatic statutory extension in section 3C of the 1971 Act would not have applied.
viii) To avoid those unfortunate and (because the Claimant was entirely unaware that his leave had been curtailed) unfair consequences, the 8 August 2011 letter said that the Secretary of State would treat an application to vary leave by way of extension as "in time" if it was submitted within two weeks. This was done by effectively extending his discretionary leave to remain until a date two weeks after the letter, i.e. 22 August 2011. Although the letter is not a model of clarity (and no further document is within the papers before me), this seems to me to be evident from the last paragraph of the letter quoted above: the "revised immigration status document" that was to be submitted with any application for further leave, it seems to me, being a reference to a document granting leave until that date so that any application made before that date would be "in time". In any event, even if my understanding of that reference is wrong, I am quite satisfied that, on its true construction, the 8 August 2011 letter had the effect of extending the Claimant's period of discretionary leave to 22 August 2011.
ix) Therefore, the Claimant had a choice. If he made an application to vary before that date, then the automatic statutory extensions of his leave under section 3C of the 1971 Act would apply. If he did not, then, after 22 August 2011, he would be in the United Kingdom unlawfully, and liable to be the subject of a removal decision under section 10 of the 1971 Act.
"I accept during the period of his discretionary leave to remain from February 2010 to May 2011, the Secretary of State has made no effort to trace his family; but equally neither has the [Claimant]. He says in evidence that he has an appointment this week with the Red Cross but he has known his status in the United Kingdom was precarious since August 2011 when he was told that his discretionary leave had ended early and he did nothing about trying to trace his family. Indeed, this was noted in the first reasons for refusal letter in February 2010 at paragraph 46 and so the [Claimant] has been on notice since then that the Secretary of State has concerns over the lack of attempt to try and trace his family, either here or in Afghanistan. However the [Claimant] has only acted upon it some two years later. He says he has asked about his maternal uncle [who, the Claimant said, lived in the United Kingdom] in the local Mosque but no one knows him. There is no evidence before me that he has asked the Mosque to send that request to other Mosques in the country [i.e. in the United Kingdom]."
It is important to note that the judge refused the appeal against the removal decision on its merits, as well as the decision not to extend the Claimant's leave.
"… The current practice of the Secretary of State to incorporate both decisions in a single notice is accordingly incompatible with the relevant legislation. As a result, the present usefulness of section 47 [which was specifically designed to enable the refusal to vary and a removal decision to be put into a single document] is highly questionable."
Therefore, whilst a single notice which purported both to refuse an application to vary leave or to curtail leave, and record a decision to remove, was effective in respect of the leave decision, it was ineffective in respect of the removal decision (confirmed in Adamally and Jaferi (section 47 removal decisions: tribunal procedures)  UKUT 414 (IAC)). The decision of the Upper Tribunal was confirmed by the Court of Appeal, in Ahmadi CA. A new version of section 47(1) was substituted by section 51 of the Crime and Courts Act 2013, which received Royal Assent on 25 April 2013; but the new version has no role to play in this claim.
"… 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" (at  per Maurice Kay LJ, giving the judgment of the court).
It was expressly held that the Secretary of State did not discharge her duty merely by informing a child of the facilities of the Red Cross (see [24(1)]).
The Grounds of Challenge
Ground 1: The Failure to Fulfil the Duty to Endeavour to Trace
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
In the specific context of immigration decisions taken by the Secretary of State, this is reinforced by section 55 of the 2009 Act (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4). Of course, even where the best interests of a child threatened with removal would be served by him remaining in the United Kingdom, those interests are only a primary consideration, i.e. a starting point: they may be overridden by other factors, including the maintenance of proper immigration control (see, e.g., in the context of the duty to endeavour to trace, DS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 305 at - per Lloyd LJ).
"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 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.
(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 reached the age of 18 whichever is the earlier;…".
i) In breach of this duty to endeavour to trace, the Secretary of State failed to take steps to trace the Claimant's family members when he was a minor.
ii) Mr Bedford conceded that this did not automatically result in the Claimant being entitled to indefinite leave to remain: his concession was appropriate, because such a contention did not survive KA (Afghanistan). The Secretary of State (and on appeal, in her shoes, the relevant tribunal) must assess the disadvantage, if any, the applicant has suffered as a result of such a breach of duty.
iii) In this case, Mr Bedford submitted that the Claimant had suffered prejudice, namely he was deprived of potential evidence that his parents were indeed dead and his brothers indeed missing which would or might have supported his credibility generally, and specifically his claim for asylum as an unaccompanied child with no adequate reception facilities available to him in Afghanistan.
iv) Mr Bedford submitted that the Claimant had "an unanswerable or at least compelling claim to asylum as an orphan for whom the possibility of his safe reception by surviving family members was not or could not be verified" (skeleton argument, paragraph 9). On that basis, he flirted with the submission that, in the circumstances, the Claimant ought to be granted asylum now. However, his primary submission was based upon the premise that, as the Claimant was over 18 when the Secretary of State determined his second asylum application, he could not then have been granted asylum on the basis that he was a child who, as such, would face persecution if returned to Afghanistan. Nevertheless, as the Claimant, prior to attaining the age of 18, would have obtained refugee status had the Secretary of State complied with her obligation to endeavour to trace, he ought now to be given "corrective leave" to remain in the United Kingdom on the basis of the principle formulated in R (Rashid) v Secretary of State for the Home Department  2005 EWCA Civ 744;  Imm AR 608.
i) As I have already described, a decision as to whether leave to remain should be granted should be made on the basis of circumstances as they stand at the date of the decision. Where an appeal is before a tribunal, the relevant date is the date upon which that tribunal considers matters.
ii) However, where there has been past unlawful conduct on the part of the Secretary of State that gives rise to present injustice to the applicant, that may be a material consideration to a decision now. But the relevant decision-maker (i.e. the Secretary of State or, on appeal, the tribunal) is only required to take into account past conduct of the Secretary of State where (a) that conduct was unlawful: "abuse of power" does not add to that as a proposition, "abuse of power" merely defining unlawfulness in a public law sense; and (b) the conduct must be taken into account to avoid unfairness to the applicant.
iii) With regard to the requirement that the conduct must be taken into account to avoid unfairness to the applicant, two notes of caution. First, in AA (Afghanistan) (at ), Laws LJ referred to the need to avoid "conspicuous unfairness" to the applicant. This phrase appears to derive from Rashid, where Pill LJ (at ), referred to serious errors of administration in that case having "resulted in conspicuous unfairness to the claimant". However, in S, Carnwath LJ explained that this simply meant the conduct led to unfairness to such an extent that the conduct was unlawful in a public law sense. In the Claimant's case on this ground, the unlawfulness derives from the Secretary of State's failure to comply with her obligation to endeavour to trace the Claimant's family. Conspicuous unfairness to the Claimant is not a necessary element for a finding of unlawfulness on the part of the Secretary of State here, as it was in Rashid. In SL (Vietnam) (at [33(ii)]), Jackson LJ appears to have considered mere "prejudice" to the applicant sufficient. It is not necessary in this case for me to determine whether the unfairness to the applicant must be at or above a particular threshold. In the Claimant's favour, and without determining the point, I shall proceed on the basis that any disadvantage of substance is sufficient. Second, in SL (Vietnam) (again, at [33(ii)]), in respect of what must be taken into account, Jackson LJ used the phrase "past prejudice suffered" (emphasis added) as a result of the unlawful conduct; but it seems to me that, as Carnwath LJ indicated in S at , the disadvantage to the applicant has to be current, even if arising from past conduct.
iv) Although for reasons to which I shall come the result of this case would be the same even if the court had to take its own view on whether a failure to take into account disadvantage to the applicant resulting from the unlawful conduct of the state, the established law is that, in respect of a challenge on the basis that the decision-maker has failed to take into account such a factor, the court will only intervene on traditional public law grounds, the question being: "Would it be so unfair to proceed without due regard to the factors relied on that no reasonable Secretary of State would take such a course?" (AA (Afghanistan) at  per Laws LJ, with whom Sullivan LJ and McCombe J (as he then was) agreed). If the factor is taken into account, the weight to be given that factor is of course a matter for the decision-maker.
v) In accordance with usual public law principles, where the decision-maker has erred in law in not taking past conduct into account as a currently material factor, then the court will send the matter back to the decision-maker for reconsideration and redetermination, unless the decision-maker could only properly exercise his discretion in one way.
i) The Secretary of State clearly had a duty to endeavour to trace the Claimant's family members in Afghanistan.
ii) However, Mr Tindal submitted that, in the circumstances of this case, there was no breach of that obligation, because there were no sensible steps that the Secretary of State could take to trace the Claimant's relatives in Afghanistan, on the information available to her. The only available information was from the Claimant himself, which was to the effect that his parents were dead, having been killed in 2007-8: his brothers had disappeared at that time: he last saw his brothers at an unspecified address in Kunar Province about 8 months before he arrived in the United Kingdom, the family having lived at Mizayan previously: he had no other relatives in Afghanistan: he had refused (or, at least, failed) to cooperate with the Red Cross in tracing his relatives in Afghanistan: and he was unable to provide any further information. In the context of his asylum claim as a child, Mr Tindal suggested that it was not in the Claimant's interests to cooperate in tracing any relatives in Afghanistan.
iii) That submission has some force. But, in any event, KA (Afghanistan) emphasised the need for an applicant to establish disadvantage as a result of any breach of the duty to endeavour to trace family members (see - per Maurice Kay LJ); and I am certainly unpersuaded that the Claimant has suffered any real disadvantage as a result of any breach of that duty here. Any breach simply has no causal potency or relevance in this case.
iv) Mr Bedford submitted that the Claimant was deprived of potential evidence supporting his version of events that his parents were indeed dead and his brothers indeed missing, which, he submitted, would or may have supported his credibility generally (child asylum seekers being generally afforded more benefit of doubt and leeway in relation to credibility, because of their age: see AA (unattended children) Afghanistan CG  UKUT 16 (IAC)), and specifically his claim for asylum as an unaccompanied child with no adequate reception facilities available to him in Afghanistan (children being a social group for asylum purposes, such that a claim for asylum can be made on the basis that a child as a child is at risk on return: see LQ (age: immutable characteristics) Afghanistan  UKAIT 5 (AIT) ("LQ (Afghanistan)").
v) However, first, as Mr Tindal properly stressed, the information upon which any tracing enquiries could have been made by the Secretary of State was very sparse. I have already described the relevant information the Claimant gave (see paragraph 42(ii) above). It is clear that he was unable or unwilling to add to that information – Mr Tindal suggested that the Claimant may have thought that it was not in his best interests to give any further information, but whether the Claimant failed to give any further information because he did not have any, or because he was unwilling to give further information, is not to the point – and it has not been suggested that there was any source of information about the Claimant's relatives other than the Claimant himself. On the basis of the information available to the Secretary of State from the Claimant, any sensible steps to trace the Claimant's relatives were all but impossible; and it seems to me almost inconceivable that any further information, positive or negative, would have resulted from any steps the Secretary of State might reasonably have taken to trace the Claimant's relatives. It is for the Claimant to show he was disadvantaged by any breach of the duty; and on the balance of probabilities – indeed, by some considerable margin – I am not persuaded that, had the Secretary of State taken the steps it is contended she ought to have taken, they would have produced any further information.
vi) In any event, even if, contrary to my firm view, some steps to trace might reasonably have been made by the Secretary of State and some information thus elicited, it is difficult to see how that information would have assisted the Claimant. If his brothers had been found and if they were able to look after him, he would have been liable to return to Afghanistan. If they had not been found, then he would have been granted discretionary leave until he reached adulthood, the leave he was in fact granted. Mr Bedford submitted that attempts to trace his parents and brothers may have added to his credibility, if enquiries provided evidence that his version of events was true; but Judge Hawden-Beal, whilst clearly being sceptical about parts of the Claimant's account, found that any assailants of his parents did not know and would not be able to identify the Claimant, and he had no political profile in Afghanistan at all (see, especially, paragraphs 41 and 43 of her determination). His credibility as to events in Afghanistan was not, therefore, crucial to or determinative of the judge's determination. Insofar as the Claimant was deprived of a decision on his second asylum claim whilst he was child, I deal with that below in the context of Ground 2.
vii) Mr Tindal submitted that, although of course each case is fact-specific, the Claimant's case on duty to endeavour to trace is no stronger than that of the claimant in QA (Afghanistan), one of the individual claims heard with EU (Afghanistan) in which, as in this case, the claimant had turned 18 by the time the matter was determined by the First-tier Tribunal. I agree. In the case of QA (Afghanistan), the claimant refused to provide information to the Red Cross or other organisation so as to enable his mother to be traced, so that Sir Stanley Burnton (giving the judgment of the court) said (at )"… [I]t is impossible to see that the Secretary of State's breach of the duty to endeavour to trace is relevant to his case."As in this case, it seems to me that that conclusion was provoked, not by the lack of cooperation of the applicant in itself, but by the inconceivability that, on the information which was in fact available to the Secretary of State, endeavours to trace family members would result in further information of any possible assistance.
viii) Whilst Judge Hawden-Beal had in mind that the Secretary of State had a duty to attempt to trace the Claimant's family – she expressly refers to it in paragraph 21 of her determination – neither she nor Judge Kekic had the benefit of KA (Afghanistan), which found that the Secretary of State had systemically breached that duty, because that appeal was not decided until their respective decisions. Furthermore, Judge Hawden-Beal did not know that reference of a child to the facilities of the Red Cross was, alone, insufficient to fulfil the obligation on the Secretary of State to endeavour to trace relatives, which also derived from KA (Afghanistan); and, in paragraph 40 of her determination, she emphasised the failure of the Claimant to make efforts to trace his family. I therefore accept that the judge did not apply the law with regard to the duty to endeavour to trace family members, as set out in KA (Afghanistan) and EU (Afghanistan). She was of course not at fault, because those cases were not decided until after here determination; but, in failing to apply the guidance in those cases, she erred in law.
ix) However, it is very clear that that error was not material. For the reasons I have given, any breach of that duty was immaterial in this case, because the steps that the Secretary of State ought to have taken would not have resulted in any information relevant to the Claimant's claims for leave, on the ground of asylum or otherwise; and, even if they had resulted in some information being forthcoming, that information would not have assisted the Claimant or possibly led to his claim for leave to remain being determined in any other way than it in fact was.
x) The Claimant having suffered no substantial disadvantage as a result of any unlawfulness on the part of the Secretary of State, there was no material consideration in respect of it to be taken into account in determining his claim for leave, on any ground. Consequently, Rashid has no part to play in this case. I am entirely sure that, had Judge Hawden-Beal and, in her turn, Judge Kekic had the benefit of KA (Afghanistan) and the cases that followed it, and knew of the requirement to assess the current injustice to the Claimant resulting from the past conduct of the Secretary of State, their decisions would not have been any different.
Ground 2: The Failure to Provide an Effective Remedy
"… The right to an effective remedy is a fundamental principle of EU law. In order for that right to be exercised effectively, the national court must be able to review the merits of the reasons which led the competent administrative authority to hold the application for international protection to be unfounded or made in bad faith, there being no irrebuttable presumption as to the legality of those reasons…".
"In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their vulnerability. In this context, the best interests of the child should be a primary consideration of Member States."
Article 17, "Guarantees for Unaccompanied Minors", requires Member States to ensure unaccompanied child asylum seekers have representation and/or assistance "as soon as possible".
"Article 3 of the UNCRC obligates the UKBA to ensure that the best interests of the child are a primary consideration in all actions concerning the child. This guidance must be read with this principle clearly in mind and the understanding that Best Interests is a continuous assessment that starts from the moment the child is encountered and continues until, such time as a durable solution has been reached."
There follows a lengthy narrative on the statutory duty to promote the welfare of children under section 55 of the 2009 Act, including the statutory guidance issued by the Secretary of State in respect of that duty including, specifically:
"Children should have their applications dealt with in a way that minimises the uncertainty that they may experience."
The Process Map annexed to the Secretary of State's Instruction indicates that, on an asylum claim by an unaccompanied child, a decision should be made within 41-45 days.
i) The Secretary of State's ploy in her letter of 8 August 2011 of offering to extend leave if the Claimant made an application to vary his leave within 14 days could not overcome the fact that his leave was curtailed from 1 May 2011. The letter expressly referred to "the expiry of your leave on 1 May 2011". Consequently, the Claimant had a right of appeal as from 1 May 2011.
ii) Alternatively, his leave was brought to an end by the letter of 8 August 2011, giving him a right of appeal from that date.
iii) Contrary to regulation 4(1) of the Immigration (Notices) Regulations 2003 (quoted at paragraph 21(iii) above), the Claimant was not notified of that right of appeal, whenever it arose. Had he been notified, he would have exercised that right of appeal; and his appeal would have been concluded by the time he turned 18, on 1 November 2011.
iv) In any event, he lodged his appeal on 12 August 2011, and that appeal ought to have been finally determined by 1 November 2011.
v) In not determining the appeal to a conclusion by his eighteenth birthday, the Secretary of State acted unlawfully.
vi) As a result, either (i) the Claimant's application ought to have been determined on the basis he was still a child, thereby giving him an effective remedy; or, alternatively and as Mr Bedford's primary submission, (ii) as the reason it was not so determined was the failure of the Secretary of State as a result of which the Claimant has lost an otherwise unarguable or at least compelling right to refugee status, the Claimant ought to be given indefinite leave on the basis of the Rashid principle.
i) There is a presumption that the Claimant was properly advised and, albeit he was a child, he took an informed and advised decision as to the course he wished to take in respect of an appeal. There is no evidence at all that the solicitors here made any mistake of professional judgment or otherwise.
ii) Each of the claimants in the eight claims that were considered in KA (Afghanistan) and EU (Afghanistan) seem to have been in the same position as the Claimant – in having an initial asylum claim rejected but with a grant of discretionary leave until the age of 17½ years; no appeal, but a second asylum application at the age of 17½ - but the Court of Appeal does not appear to have regarded their failure to appeal against the first refusal as in point, perhaps on the basis that they could properly expect to have a second application for asylum dealt with on its merits when their discretionary leave came to an end.
In any event, it certainly seems curious to me that the Claimant now complains of not having had an appeal against refusal of his asylum claim determined as an unaccompanied minor, when he eschewed an earlier opportunity to make exactly such an appeal which would undoubtedly have been determined prior to him achieving adulthood.
i) The Claimant had a right of appeal in respect of the refusal of his first asylum claim in February 2010. That claim was made on an identical basis to his second claim. He did not exercise that right.
ii) If the Claimant considered that the Secretary of State was legally obliged to determine his second asylum claim (with or without the appeals process) whilst he was a minor, then it was open to him to have required that of the Secretary of State and to have judicially reviewed any refusal. He did not pursue that course either.
iii) Vitally, in respect of the 11 January 2012 refusal of his asylum claim, (a) the Secretary of State was correct in considering the Claimant's claim on the basis of matters as they stood at the date of her decision, including on the basis that the Claimant was, by the time of the decision, an adult; (b) the Claimant had a right of appeal against that refusal, which he exercised: the tribunals too were correct in considering matters (including the Claimant's age) at the date of their respective decisions; and (c) in addition, the Claimant had the right to claim indefinite leave on the basis that, on the basis of all material considerations (including the fact that, as a result of the Secretary of State's unlawful conduct, the Claimant suffered detriment from the failure to determine his asylum claim whilst he remained a child). It is of course not to the point that the Claimant's appeal failed, and that in the event the refusal of his asylum claim made as a child provides no support for any claim that he should have discretionary leave to remain now.
In all the circumstances, I am not satisfied that the Claimant has been left without an effective remedy in respect of his claim for asylum.
Ground 3: Failure to Make a Valid Removal Decision
i) The removal decision, given within the letter of 11 January 2012 under section 47 of the 2006 Act, was ineffective or at least challengeable, for the reasons set out in Ahmadi. Because of the very restricted scope of section 47 as explained in Ahmadi, the time for making and notifying a removal decision under that statutory provision was short. In fact, no other removal decision has ever even purportedly been given under section 47.
ii) However, section 10(1)(a) of the 1999 Act provides that:"A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if… having only a limited leave to enter or remain, he… remains beyond the time limited by the leave…".
iii) After his appeal rights had been exhausted, as a person unlawfully in the United Kingdom, the Claimant was subject to removal under section 10. Indeed, the removal directions of 2 November 2012 could only have been given under that provision.
iv) Directions for removal under section 10 require a decision by the Secretary of State to remove the individual who is unlawfully in the United Kingdom, in the form of a decision to issue removal directions. That is an important decision, because it triggers an obligation on the part of the Secretary of State to consider various factors that are relevant to the decision of whether or not to issue removal directions. By paragraph 395C of the Immigration Rules:"Before a decision to remove under section 10 [of the 1999 Act] is given, regard will be had to all the relevant factors known to the Secretary of State, including: (i) age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment records; (v) domestic circumstances; previous criminal record and the nature of any offence which the person has been convicted; compassionate circumstances; (viii) any representations received on the person's behalf…".
v) In this case, as I have indicated, the Secretary of State did make a decision to remove in the letter of 11 January 2012, but that was done under section 47. For the reasons given in Ahmadi, that decision was challengeable. No decision to remove could have been made under section 10 at that time, because the Claimant then had leave to remain which was only brought to an end when he received that letter.
vi) There is no evidence that a decision to issue removal directions under section 10 was ever made. Although Mr Tindal submitted that the decision was incorporated into the removal direction notices served, that cannot be right; because those notices each said, "This is NOT an appealable decision" (emphasis in the original), and a decision to remove under section 10 is an appealable decision (see paragraph 12(v) above).
vii) The Claimant was therefore removed as the result of a process that was on its face unlawful, thereby depriving him of a right of appeal which would in the Claimant's case, because of his asylum and human rights claims, have been in-country (again, see paragraph 12(v) above).
viii) In those circumstances, in terms of relief, this unlawfulness of process is:"… the starting point…. It is a factor telling strongly in favour of ordering the person's return, so as to restore him to the position he should have been in under the statute and would have been in if the Secretary of State had acted lawfully" (YZ (China) v Secretary of State for the Home Department  EWCA Civ 1022 at  per Richards LJ).
ix) Mr Bedford additionally relied upon the comment in Adamally and Jaferi at , to the effect that it cannot be presumed that a new decision as to removal will be the same as a previous decision.
i) Each of the two decisions contained within the Secretary of State's letter of 11 January 2012 – the decision to refuse to vary the Claimant's leave by way of extension, and the decision to remove him – were appealable decisions (sections 82(1) and 82(2)(d) and (ha) of the 2002 Act: see paragraph 12(v) above).
ii) Both were appealed, and both dealt with by Judge Hawden-Beal in the First-tier Tribunal (see paragraph 6 of her determination). The issue of the lawfulness of the removal decision was not raised or dealt with by the judge. That is no surprise: the appeal was heard and her determination promulgated before that in Ahmadi UT.
iii) The issue does not appear to have been raised by the Claimant in his late application to the Upper Tribunal for permission to appeal. That application was made after the promulgation of Ahmadi UT. No issue being raised in the grounds of appeal, it was of course not referred to by Judge Kekic when she refused the application.
iv) However, the validity of the removal decision having been the subject of the Claimant's appeal to the First-tier Tribunal, having been determined by Judge Hawden-Beal, and permission to appeal having been refused by both the First-tier and Upper Tribunals, the Claimant's challenge now is not in substance to the Secretary of State's reliance on the 11 January 2012 decision to remove or to her failure to make a valid removal decision; but rather to the Upper Tribunal's refusal of permission to appeal Judge Hawden-Beal's decision that the removal decision was good. That is a Cart issue: Judge Kekic decision to refuse permission to appeal can only be challenged on the basis that, not only did she err in law, but it raises an important point of principle or practice that requires consideration, or there is some other compelling legal reason to allow the challenge to proceed.
v) Judge Kekic's decision did not err in law in the sense that she was not bound to consider a ground of appeal not raised. Further, it raises no important point of principle or practice that requires consideration: the law following Ahmadi is quite clear, particularly following the confirmation of that decision recently in the Court of Appeal. However, Mr Bedford submitted that there was a compelling reason for allowing the challenge to proceed, namely because, not to do so, will rob the Claimant of an in-country right of appeal to which he would otherwise have been entitled. That, he submitted, would be unjust.
vi) However, attractive as that argument might be at first blush, I do not consider that it is good, for two reasons. First, although Judge Hawden-Beal did not have the advantage of the learning in Ahmadi UT, the Claimant (who was legally represented) did at the time he made his application to the Upper Tribunal for permission to appeal. He did not rely upon the unlawfulness of the removal decision then. There is no good reason why he should not have done so. Second, Judge Hawden-Beal did consider the merits of the challenge to the removal decision in her determination, and found them to be wanting – that she did so might explain – indeed, that might explain why the Claimant did not rely upon that the unlawfulness of the removal decision. In particular, she effectively took into account the matters she would have been required to have taken into account the factors set out in paragraph 395C of the Immigration Rules, especially in paragraphs 48-50 of her determination, albeit, there, in the context of the Claimant's claim under article 8 of the European Convention on Human Rights. The Claimant does not suggest that circumstances have changed since that decision. On the basis of the judge's determination, it is inconceivable that an appeal against a new removal decision under section 10 would (or, reasonably, could) have met, or now meet, with success. In those circumstances, the Claimant has suffered no injustice, and indeed no disadvantage at all, by virtue of the Secretary of State's failure to make a further decision under section 10 to remove him.
vii) Even if I am wrong in considering that this is a Cart issue, the substantive result of this claim would be the same. Relief in this court is always discretionary; and, even if the Secretary of State had acted unlawfully in failing to make a valid removal decision and even if that had resulted in the Claimant being deprived of an in-country appeal before the First-tier Tribunal and/or the Upper Tribunal, given that he has already had the merits of such an appeal considered and determined by the tribunal, I would not have exercised my discretion to require the Secretary of State to take steps to return the Claimant to the United Kingdom and/or to enable him to exercise any rights of appeal he might otherwise have.
viii) In coming to that conclusion, I note that in YZ (China) Richards LJ stressed that, although when an individual has been removed on the basis of an unlawful procedure that weighs heavily in favour of ordering his return, cases are fact-sensitive and the court's discretion is "a wide one" (see ). In this case, there is no evidence at all that the Secretary of State (e.g.) deliberately delayed in any aspect of any procedure, so that the Claimant reached maturity before a decision was taken in respect of his (second) asylum claim, which would clearly be a material factor. Furthermore, one circumstance in this case, is that, prior to the removal of the Claimant, Silber J had determined that all three of this claim were not only unarguable, but totally without merit, and had expressly directed that a renewed application for permission should not act as a bar to removal; and Judge Cooke had also considered the grounds unarguable, and had refused to restrain removal by way on injunction. The Secretary of State was therefore entitled to consider that the Claimant's removal appeared to be lawful at the time it was effected, which is a material factor (see YZ (China) at  per Richards LJ).
ix) Therefore, in all the circumstances of this case, I am quite sure that denying the Claimant substantive relief would result in no injustice to him, and, even if he had made good this ground, it would not have been appropriate to award him substantive relief.