Asylum seeker - Child - Best interests of child
HK (Afghanistan) and others (by their litigation friend) v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lords Justice Pill, Rimer and Elias): 16 March 2012
The three claimants (HK, NS and MM) were minors from Afghanistan. In each case, their immediate or extended family had made arrangements for them to travel to the UK in the belief that they were not safe in Afghanistan. They each arrived in the UK as unaccompanied minors and claimed asylum. They were each refused asylum and humanitarian protection. However, they were all granted discretionary leave to remain, under the respondent secretary of state's policy on unaccompanied child asylum seekers, for at least two years.
All of their appeals to the Asylum and Immigration Tribunal (the AIT) were dismissed. Each of the claimants was granted a reconsideration order in respect of their appeal and the matters went to the Upper Tribunal (Immigration and Asylum Chamber) (the Upper Tribunal). The Upper Tribunal concluded that the AIT had, in each case, erred in dealing with the question of humanitarian protection. The Upper Tribunal set aside those decisions and proceeded to make its own. It considered the question of whether, on the evidence, it could properly conclude that the claimants had family in Afghanistan who were willing and able to receive and protect them. The Upper Tribunal held that they did.
The Upper Tribunal noted that, although the claimants had been provided with information regarding free assistance from the Red Cross to trace their families, none of them had made any effort to contact their families and it was not disputed that the respective families would be willing to collect and care for them on their return. (see  of the judgment). It further concluded that the claimants would be able to travel safely from Kabul to the place where their families were based. Accordingly, both their asylum and humanitarian protection appeals were refused. The claimants were granted permission to appeal. The secretary of state accepted that, based on established authority, HK's appeal was likely to succeed.
She therefore offered to remit the matter to the Upper Tribunal for re-hearing. The proposed order included provision for the secretary of state to draft a further decision letter that dealt with section 55 of the Borders, Citizenship and Immigration Act 2009 (the 2009 act). She further accepted that she should commence efforts to trace the families of HK and MM. NS reached the age of 18. However, the secretary of state accepted that he too was entitled to have the original determination quashed notwithstanding that he had reached majority. The claimants rejected those offers. The instant proceedings comprised the appeal.
The claimants submitted that the secretary of state had failed to have regard to section 55 of the 2009 act which required her when exercising, inter alia, her functions in relation to immigration and asylum, to have had regard to the need to safeguard and promote the welfare of children. Consideration was given to article 19(3) of Council Directive (EC) 2003/9 (laying down minimum standards for the reception of asylum seekers) (the Reception Directive) and the Asylum Seekers (Reception Conditions) Regulations 2005, SI 2005/7 (the regulations), in particular, regulation 6. The appeal would be allowed.
(1) The onus was on the asylum seeker to make good the asylum claim, and that applied to children as it did to adults. It was true that the particular vulnerability of unaccompanied minors had led to special rules relating to the handling of their cases and there was a greater tendency to give them the benefit of the doubt where evidence was disputed. However, that did not involve any formal shift in the onus of proof. It would not be appropriate in all cases 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 family. It would depend on a range of factors which would include the circumstances in which the child had come to the UK, the age of the child and whether he had been encouraged to make contact.
However, it was, in principle, an inference which it was legitimate for the court to draw where the evidence justified it. It did not necessarily follow that the absence of someone to receive a child would compel the conclusion that asylum should be granted (see , ,  of the judgment). On the evidence, the inference that the claimants would be safely received had not been an improper inference for the Upper Tribunal to have made. Even if the Upper Tribunal should have found that the claimants would not be subject to adequate reception facilities on return to Afghanistan, that would not have been sufficient to establish the right to asylum status (see ,  of the judgment).
LQ (age; immutable characteristic) Afghanistan  UKAIT 0005 explained; ZK (Afghanistan) v Secretary of State for the Home Department  All ER (D) 265 (Jun) considered; ZH (Tanzania) v Secretary of State for the Home Department  2 All ER 783 considered; DS (Afghanistan) v Secretary of State for the Home Department All ER (D) 248 (Mar) considered; AA (unattended children) Afghanistan  UKUT 00016 considered.
(2) It was a necessary part of the duty under section 55 of the 2009 act to give primary consideration to the interests of the children, that the secretary of state should obtain as much information as was reasonably possible to assist her in determining where those best interests lay. If she failed unjustifiably to do that, it could not properly be said that she had complied with the section 55 duty. Moreover, regulation 6 of the regulations arose as soon as an asylum application had been lodged and it was plainly intimately connected with the determination of that application (see ,  of the judgment).
Even if, in the instant case, the Upper Tribunal had had regard to the duty under section 55 of the 2009 act, it would have been entitled to conclude that it was not in a position properly to give effect to that duty without the information resulting from the secretary of state's tracing inquiries (see  of the judgment). The appeals succeeded on the grounds conceded by the secretary of state and the matter would be remitted to the Upper Tribunal (see  of the judgment). DS (Afghanistan) v Secretary of State for the Home Department  All ER (D) 248 (Mar) applied.
Per curiam: LQ (age; immutable characteristic) Afghanistan  UKAIT 0005 is not a country guidance decision and the fact that the evidence in that case satisfied the AIT that the applicant, an orphan, faced a real risk of serious harm if returned to Kabul does not mean that all tribunals thereafter will have to reach identical findings of fact. Indeed, it would be an error of law for a tribunal to treat LQ as having made a binding conclusion of fact, as this court recognised in ZK (Afghanistan) [...]. It will depend on the evidence adduced (per Elias LJ at  of the judgment).
Becket Bedford (instructed by Sultan Lloyd) for the appellants; David Blundell (instructed by the Treasury Solicitor) for the respondent.