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||Neutral Citation Number:  EWCA Civ 1609
||Case Nos: C5/2012/0537, C4/2012/0176
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UTIAC and THE HIGH COURT, QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT, (LINDBLOM J)
REFS: AA06995/2011; CO1399/2011
||Royal Courts of Justice
Strand, London, WC2A 2LL
||12th December 2013
B e f o r e :
LORD JUSTICE MAURICE KAY, Vice President of the Court of Appeal, Civil Division
LORD JUSTICE BEATSON
LORD JUSTICE BRIGGS
|| TN (Afghanistan) &
||- and -
||Secretary of State for the Home Department
(Transcript of the Handed Down Judgment of
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Mr Becket Bedford and Mr Zane Malik (instructed by Sultan Lloyd Solicitors) for the Appellants
Mr David Blundell (instructed by Treasury Solicitors) for the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Maurice Kay :
- The arrival in the United Kingdom of young male Afghans who proceed to make asylum, humanitarian protection or human rights claims has given rise to a number of legal problems, particularly when, on arrival, they are unaccompanied minors. Some of the problems were considered in the cases culminating in KA (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1014 and its sequel EU (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 32. The cases considered in KA and EU had the common feature that the appellants had been granted discretionary leave to remain (DLR) until they reached the age of 17½, thereby leaving them to make a further application before attaining their majority. The cases also had the common feature that they were manifestations of a systemic breach by the Secretary of State of her duty, pursuant to Article 19(3) of Council Directive 2003/9/EC (the Reception Directive) and Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, to endeavour to trace the members of a minor's family as soon as possible after he makes a claim for asylum. KA sought to clarify the way in which tribunals should approach such cases, in particular when considering an appeal after the claimant has reached the age of 18 but where he seeks to rely on his having been disadvantaged by the breach of the tracing duty while he was still a minor.
- The present appellants, TN and MA, represent a specific subset. Their asylum claims were refused by the Secretary of State and they were granted DLR after they had attained the age of 16½. The DLR, which expired when they became 17½, was therefore granted for less than one year. Section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) provides that:
"(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 Tribunal against the rejection of his asylum claim."
Plainly, TN and MA, having been refused asylum and having been granted DLR for less than one year, had no right to appeal against the refusals pursuant to section 83(2). There is a difference in the ways in which they responded to that predicament.
- TN commenced judicial review proceedings challenging the decision to refuse his asylum claim without a right of appeal. On 16 December 2011, Lindblom J refused the substantive application for judicial review. However, he granted permission to appeal to this Court, which permission was enlarged by Hooper LJ on 10 April, 2012. We are concerned with that appeal. Shortly before he became 17½, TN had also made an application to the Secretary of State for further leave to remain on asylum, humanitarian protection and human rights grounds. It was refused on 8 November 2011. That triggered a statutory right of appeal to the First-tier Tribunal (FTT) pursuant to section 82(1) of the 2002 Act because such a decision is an "immigration decision" as defined by section 82(2)(d). In parallel to the judicial review proceedings with which we are concerned, TN has availed himself of his statutory right of appeal. After initial failure in the FTT, TN partially succeeded before the Upper Tribunal (UT) which remitted his case to the Secretary of State in the light of KA so that the case could be reconsidered by the Secretary of State with the benefit of the result of proper discharge of the tracing obligation.
- MA did not apply for judicial review. Shortly before the expiration of his DLR, he applied to the Secretary of State for further leave to remain. The Secretary of State refused the application, whereupon MA exercised his statutory right of appeal. His appeals to the FTT and the UT were unsuccessful and it is against the decision of the UT that he now has permission to appeal to this Court.
- Without going into detail at this stage, it is appropriate to describe some of the factual bases upon which TN and MA have mounted their asylum claims. TN's date of birth is 1 January 1994. He therefore turned 18 on 1 January 2012 and is now approaching 20. He claims that two of his paternal uncles are members of the Taliban; that they approached his father to recruit him into the Taleban; that his father refused; and that his father then arranged for his departure from Afghanistan in October 2009. On 18 November 2009, TN was fingerprinted by UKBA officials in the control zone at Calais. He was issued with a notice of liability to removal. He later travelled to the United Kingdom in the back of a lorry. He claims that he was met by a man who said that he would take him to the Home Office but who in fact took him to a place where he worked as a car washer until he was arrested on 8 September 2010. Two days later he made an asylum claim. He was then aged 16 years and 8 months. By a decision letter dated 12 November 2010, the Secretary of State refused the asylum claim. The account of a Taliban connection and attempted recruitment was rejected. It was also considered that, in any event, there was sufficiency of protection and a prospect of internal relocation. Nevertheless, he was granted DLR until 1 July 2011. On 29 June 2011 he made his application for further leave to remain. It was refused on 8 November 2011. His appeal to the FTT was dismissed with adverse credibility findings on 28 December 2011. The UT later found an error of law in the determination of the FTT and proceeded to rehear the appeal with the outcome to which I referred at paragraph 3, above.
- MA arrived in the United Kingdom on 27 July 2009 and claimed asylum ten days later. He claimed to be aged 13 but an age assessment carried out a few months later assessed his age as 16. He asserted that his father had been a member of the Taliban who was taken and killed by the authorities and that his brother had been killed in an explosion for which the American Armed Forces were responsible. He claimed fear of persecution as a result of his father's Taliban involvement. The Secretary of State rejected MA's account in a letter dated 23 November 2009 but granted DLR until he became 17½. On 29 June 2010 he applied for further leave to remain but this was refused in a letter dated 31 May 2011. An appeal to the FTT was dismissed on 26 July 2011 but the UT found that the FTT decision contained a legal error. On 12 January 2012 the UT redetermined and dismissed the appeal. It found that MA had been 16 on arrival in this country and that he was therefore 18 at the time of the hearing in the UT. It rejected the alleged Taliban connection and that the brother had been killed in an explosion. The UT did not consider that the Secretary of State's failure to discharge the tracing obligation or the delay or the fact that the first refusal of asylum had been unappealable by reason of section 83(2) rendered the Secretary of State's decision unlawful. MA has been granted permission to appeal to this Court against the decision of the UT.
- The grounds of appeal in these cases were explained in a series of skeleton arguments written by Mr Becket Bedford, the most recent of which is dated 4 October 2013, some six days before the hearing of the appeal. The first and principal ground of appeal is that, by granting them DLR for less than a year, the Secretary of State unlawfully denied the appellants an effective remedy to which they are entitled as a matter of European law. In other words, it was unlawful to create a situation in which, by granting DLR for less than one year, the Secretary of State ensured that there could be no appeal to the FTT while the appellants were still under 18 and protected by the tracing obligation and section 55 of the Borders Citizenship and Immigration Act 2009, as explained by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department  2 WLR 148. Secondly, the appellants were not only denied an effective remedy by way of appeal. They were thereby disadvantaged in relation to the remedy with which they were provided because of the limitations of judicial review. The third issue is whether what is sometimes called "corrective relief", emerging from cases such as R (Rashid) v Secretary of State for the Home Department  EWCA Civ 744 and R (S) v Secretary of State for the Home Department  EWCA Civ 546, is a sufficient remedy. In this context, Mr Bedford invites us to revisit R (R v Secretary of State for the Home Department, ex parte Ravichandran (No.1)  Imm AR 97 and, if necessary, to refer the point to the Court of Justice of the European Union (CJEU). Fourthly, the appellants seek to rely on the Charter of Fundamental Rights of the European Union (the Charter). Finally, he invites us, if appropriate, to remit TN's damages claim to the Administrative Court.
1. An effective remedy?
- At a meeting in Tampere in October 1999 the Council of Ministers of the European Union resolved to work towards a Common European Asylum System. This resulted in a suite of Council Directives, beginning with 2003/9/EC (the Reception Directive), which was followed by 2004/83/EC (the Qualification Directive) and 2005/85/EC (the Procedures Directive). It is the Procedures Directive which is of particular importance in the context of these appeals. Its recitals include the following:
"(4) The minimum standards laid down in this Directive on procedures in Member States for granting or withdrawing refugee status are therefore a first measure on asylum procedures.
(5) The main objective of this Directive is to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.
(6) The approximation of rules on the procedures for granting and withdrawing refugee status should help to limit the secondary movements of applicants for asylum between Member States, where such movement would be caused by differences in legal frameworks.
(11) It is in the interest of both Member States and applicants for asylum to decide as soon as possible on applications for asylum. The organisation of the processing of applications for asylum should be left to the discretion of Member States, so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in their Directive.
(14) 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.
(27) It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole."
The crucial provision is then Article 39, which is headed "The right to an effective remedy". For present purposes, the principal provisions are as follows:
"1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal against the following:
(a) a decision taken on their application for asylum …
2. Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.
5. Where an applicant has been granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/88/EC, the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings."
- For the subset of unaccompanied minor applicants who are aged 16½ or older, it is plain that, upon the rejection of their asylum applications by the Secretary of State and the grant of DLR until they reach 17½, they are excluded from the statutory right of appeal to the FTT by section 83(1) and are confined to the remedy of judicial review. The case for the appellants is that this leaves them without an effective remedy within the meaning of Article 39.
- The submissions on this issue centre upon the decision of the CJEU in Samba Diouf v Ministre du Travail  1 CMLR 8. The applicant, who was from Mauritius, applied for asylum in Luxembourg. His application was considered in an accelerated procedure. The decision to deploy the accelerated procedure was not appealable. However, the decision which emerged from the accelerated procedure was challengeable before the Tribunal Administratif. The Tribunal referred the question whether the unappealable nature of the decision to use the accelerated procedure meant that the applicant had been denied an effective remedy. The Court held that it did not, provided that there was scope to examine the reasons for adoption of the accelerated procedure in proceedings brought to challenge the final decision rejecting the application. In view of the importance attached to this case by both sides in the present appeal, it is appropriate to set out some of the Court's reasoning:
"29. … it is necessary, as a preliminary matter, to note that the procedures put in place by [the Procedures Directive] are minimum standards and that the Member States have, in a number of respects, a margin of assessment with regard to the implementation of these provisions in the light of the particular features of national law.
46. Article 39.2 … leaves it to Member States to decide on the time limits and other necessary rules for implementing the right to an effective remedy, provided for in Article 39.1. As is recalled in recital (27) … the effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.
56. … the absence of a remedy at that [preparatory] stage of the procedure does not constitute an infringement of the right to an effective remedy, provided, however, that the legality of the final decision adopted in an accelerated procedure – and, in particular, the reasons which led the competent authority to reject the application for asylum as unfounded – may be the subject of a thorough review by the national court, within the framework of an action against the decision rejecting the application.
58. What is important … is that the reasons justifying the use of an accelerated procedure may be effectively challenged at a later stage before the national court and reviewed by it within the framework of the action that may be brought against the final decision … It would not be compatible with EU law if national rules such as those deriving from [the Luxembourg legislation] were to be construed as precluding all judicial review of the reasons which led the competent administrative authority to examine the application for asylum under an accelerated procedure."
- In Samba Diouf, the reasons which led the competent administrative authority to adopt the accelerated procedure were essentially the same as those which underlay the rejection of the applicant's claim.
- In the context of these appeals, the first question is whether the availability of a remedy by way of an application for judicial review is sufficient to amount to a "thorough review" in the sense in which those words are used in paragraph 56 of Samba Diouf. In submitting that our domestic review falls short of that standard, Mr Bedford seeks to rely on Wilson v Ordre des Avocats du Barreau de Luxembourg  1 CMLR 7. However, it seems to me that the key to the finding of a lack of an effective remedy there was the lack of independence and impartiality in the decision-making bodies. There is no question of that here.
- On behalf of the Secretary of State, Mr David Blundell submits that the effectiveness of our judicial review remedy in the context of immigration and asylum is long established. He relies on a line of authority emanating from the European Court of Human Rights in cases concerned with the Convention right to an effective remedy. In Vilvarajah v United Kingdom (1992) 14 EHRR 248, the Court said:
"125. It is not in dispute that the English courts are able in asylum cases to review the Secretary of State's refusal to grant asylum with reference to the same principles of judicial review as considered in the Soering case and to quash a decision in similar circumstances and that they have done so in decided cases. Indeed, the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an appellant's life or liberty may be at risk. Moreover, the practice is that an asylum seeker will not be removed from the UK until proceedings are complete once he has obtained leave to apply for judicial review.
126. While it is true that there are limitations on the powers of the courts in judicial review proceedings the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13."
- In their submissions in reply, Mr Bedford and Mr Zane Malik seek to marginalise Vilvarajah by pointing to its age. It is, they submit, no longer authoritative. This led us to invite post-hearing written submissions on the present status of Vilvarajah. Mr Blundell submits that it is clearly alive and well on the effective remedy issue. In Bensaid v United Kingdom (2001) 33 EHRR 10, which concerned removal in a "health" case where Articles 3 and 8 were in issue, the Court said:
"56. The Court is satisfied that the domestic courts gave careful and detailed scrutiny to claims that an expulsion would expose an applicant to the risk of inhuman and degrading treatment … The Court is not convinced … that the fact that this scrutiny takes place against the background of the criteria applied in judicial review of administrative decisions, namely rationality and perverseness, deprives the procedure of its effectiveness."
The same paragraph in the judgment included an express reference to Vilvarajah. Indeed, as recently as last year, the Court continued to draw on it. In De Souza Ribeiro v France (application no 22689/07, judgment of 13 December 2012) the Court reiterated (at paragraph 85) that
"Article 13 of the Convention does not go so far as to require any particular form of remedy, Contracting States being afforded a margin of discretion in this regard (see Vilvarajah)."
- Of course, sometimes a domestic procedure or remedy fails to satisfy Article 13, as was the case in De Souza Ribeiro and in Chahal v United Kingdom (1996) 23 EHRR 413. In Chahal, the procedure was fundamentally flawed because the reviewing court would not have had access to the national security material which the non-statutory panel had seen. It is not necessary to address cases outside the field of immigration and asylum where different considerations sometimes arise. It is sufficient to observe that there is a degree of fact-sensitivity and that, within the field of immigration and asylum, judicial review as operated in this jurisdiction has consistently withstood examination in Article 13 cases, absent a special difficulty such as that in Chahal. Indeed, it was the trust in judicial review as an effective remedy which resulted in the exclusion of Article 13 from the provisions which were incorporated into domestic law by the Human Rights Act 1998.
- All this leads me to the clear conclusion that, in the context of these appeals, the availability of judicial review as a means of challenging the initial rejections of the appellants' claims meant that there was an effective remedy such as to satisfy the requirements of Article 39 of the Procedures Directive. Whilst it did not share all the features of a statutory appeal to the FTT – in particular, the process of a merits decision following the hearing of oral evidence – there is no requirement in the Procedures Directive or elsewhere that it should. The judicial review procedure falls within the margin of appreciation which is respected by recital (27) and Article 39.2 of the Directive. The fact that Parliament provides a two-tier appellate system located in specialist tribunals is nothing to the point. In many ways, they go further than the "minimum framework" (recital (5)) provided by the Procedures Directive. Parliament was entitled to define and restrict their jurisdiction provided that, where it is excluded, there is still an effective remedy elsewhere in the judicial system. I am quite satisfied that there is.
- In these circumstances, it is not strictly necessary to consider Mr Blundell's alternative submission that the appellants enjoyed an effective remedy as a result of the immediate access to judicial review coupled with DLR and the opportunity to make a further application as they approached the age of 17½, at which stage, if the further application was refused by the Secretary of State, the refusal would then give rise to a statutory right of appeal to the FTT – as eventuated in the case of MA. This is not a submission that, by the grants of DLR, the appellants were offered "the same rights and benefits under national and Community law as the refugee status" (Article 39.5). They were not. The submission is that, standing back and assessing "the administrative and judicial system as a whole" in accordance with recital (27) and paragraph 46 of Samba Diouf, the available remedies are effective even if (contrary to my primary conclusion) judicial review alone is not. Mr Blundell acknowledges that the appellants would have had to suffer delays and further administrative steps before reaching the promised land of a statutory appeal. His answer is that the delay would have been relatively short because of the imminence of reaching 17½ and the further administrative steps (a second application and subsequent decision by the Secretary of State) were relatively insignificant.
- Although this analysis has pragmatic attractions, I am not convinced it is correct. Mr Blundell describes the underlying asylum claims as "not child-specific" but I consider that the approach to this issue should be more principled. Whilst I accept that, in any subsequent statutory appeals, even if heard after the appellants had reached the age of 18, the appellants would be able to insist on investigation of their whole history, going back to their initial applications and their underlying accounts, I do not think that, in principle, the delayed remedy (if one were to be required in that form) would necessarily be as effective as an immediate one would have been. Although there is no bright line on an eighteenth birthday in relation to risk on return, the delay might effectively deny appellants the opportunity to have their best interests as children treated as a primary consideration pursuant to section 55 of the 2009 Act. Moreover, the scenario which gives rise to the 16½ subset is not easy to rationalise except on a basis of expediency. An appellant would be appealing against the second refusal where his primary grievance would be the unappealable refusal of his initial application. In my view, Mr Blundell was right to make this his alternative submission. It is his primary submission which carries the day.
- Although there is a lack of clarity and consistency in the way in which this ground of appeal has been advanced, its central feature is a complaint that the delay in permitting the appellants access to the FTT effectively until after their eighteenth birthdays disadvantaged them in relation to the assessment of their credibility. Strictly speaking, this ground of appeal is only relevant in the case of MA. He has permission to advance it. TN does not. Moreover, in TN's case, the present appeal in the judicial review proceedings has been running alongside his statutory appeal: see paragraph 3 above. The UT has remitted his case to the Secretary of State for reconsideration with the benefit of the result of proper discharge of the tracing obligation. In the circumstances, I propose to deal only with MA at this stage. However, if the assessment of the ground of appeal in relation to MA were to yield any potential benefit to TN, I would not deprive him of it. As it happens, that will not be the case.
- It is as well to keep in mind that, notwithstanding the breach of the tracing duty and the effect of section 83, the Secretary of State did not attempt to return unaccompanied minors to Afghanistan before their eighteenth birthday. By the time of MA's appeal to the UT, he had attained his majority. His evidence was comprehensively disbelieved by Deputy Upper Tribunal Judge Hall. His asylum claim was centred upon allegations that his father had been a member of the Taliban but had been taken away and killed by the authorities. His brother had been killed by an explosion caused by American forces. All that was rejected by the UT. On the question of contact with the family in Afghanistan, the UT stated:
"If the appellant's father had been killed and his elder brother also killed and the appellant's mother and uncle had paid an agent to help him reach the United Kingdom, then I find that the appellant having reached this country would have wanted to make contact with his surviving family members. The appellant stated that his mother and younger brother and uncle were living in the uncle's house when he left Afghanistan, but when interviewed on 6 October 2009 … the appellant was asked whether he had had any contact with his family since leaving his village and he said he had not. He said he had not tried to contact them and when asked why not, he said that he did not want to. I do not find those answers to be indicative that it is reasonably likely that the appellant's account was credible. It is therefore my conclusion that the appellant had fabricated his claim …"
Can it be said that these findings are vitiated as a result of the Secretary of State's non-compliance with the tracing duty and the delayed access to the tribunal system resulting from section 83 and the approach of the Secretary of State?
- In seeking to establish disadvantage, Mr Bedford refers to AA (Unattended Children) Afghanistan CG  UKUT 00016, a country guidance case. There is a passage in the judgment of Mr Justice Owen and Upper Tribunal Judge Jarvis dealing with the assessment of credibility in cases concerning unaccompanied minors. It adopts a passage from the UNHCR Refugee Children's Guidelines on Protection and Care, 1994, which stated:
"The problem of 'proof' is great in every refugee status determination. It is compounded in the case of children. For this reason, the decision on a child's refugee status calls for a liberal application of the principle of the benefit of the doubt. This means that should there be some hesitation regarding the credibility of the child's story, the burden is not on the child to provide proof, but the child should be given the benefit of the doubt."
I do not question the need for "a liberal application of the principle of the benefit of the doubt" in such cases. Curiously, Mr Bedford seeks to fortify his submission by reference to the old private law authority of Armory v Delamirie (1722) 1 Strange 505. I agree with Mr Blundell that, in the present context, it is unnecessary to look beyond the public law authorities which consistently support the liberal approach in cases concerning children.
- The problem for MA is the carefully reasoned rejection of his evidence by the Upper Tribunal. It made repeated references to the appellant's age, for example in paragraphs 73, 94 and 96. The second of those references related to the need to take into account his age in the assessment of his credibility and the third reference emphasised that "the standard of proof is low". It is plain from a fair reading of the judgment that the UT did not find this to be a case of doubt. Its reasoned rejection of the appellant's case was unequivocal. As Lord Justice Elias said in HK (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 315 (at paragraph 34):
"The crucial premise for the submission that the Upper Tribunal should have upheld the claim to asylum is that it was not entitled to draw any adverse inferences against these children from their failure to seek to contact family members in Afghanistan. I do not accept the premise; the onus is on the asylum seeker to make good the asylum claim, and that applies to children as it does to adults. It is true that the particular vulnerability of unaccompanied minors has led to special rules relating to the handling of their cases, such as in the way interviews are conducted, and there is a greater tendency to give them the benefit of the doubt where evidence is disputed … . But this does not involve any formal shift in the onus of proof.
I do not suggest that it would in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. It will depend on a range of factors which would include the circumstances in which the child came to the UK, the age of the child and whether he or she has been encouraged to make contact. But in my judgment it is in principle an inference which it is legitimate for a court to draw where the evidence justifies it, and it was not an improper inference for the Upper Tribunal to make on the evidence before it."
- In my judgment, that is the position here in relation to MA. Moreover, any assessment of his position on the KA "hypothetical spectrum", whether in relation to the need for corrective relief or otherwise, is bound to be conditioned by the reasoned rejection of his evidence about not having attempted to contact his family because "he did not want to". In my judgment, the difficulties faced by MA in this regard are insurmountable.
3. Is there a need to refer these cases to the CJEU?
- Mr Bedford's next submission is that, if his earlier submissions fail, there is an arguable deficiency in the protection provided by domestic law, originating in R v Secretary of State for the Home Department, ex parte Ravichandran (No 1)  Imm AR 97, where Simon Brown LJ said (at page 112):
"… in asylum cases the appellate structure … is to be regarded as an extension of the decision-making process."
For this reason, the general principle has remained that an appellate tribunal considers a case on the basis of the latest evidence and material, including any which postdates the original decision. In a sense, the concept of corrective relief which was considered in KA is an exception because it contemplates relief on the basis of a previous error or breach of obligation which has lost current significance because of the passage of time (for example, attaining majority) or a change of policy. Mr Bedford's submission is that if a claimant can no longer rely on a previous error or breach of obligation for such a reason as a result of Ravichandran, the principle propounded by Simon Brown LJ results in denial of an effective remedy for the previous error or breach of obligation. In the present context, the deficiency relates to an obligation derived from EU law and, accordingly, if Ravichandran is still good domestic law, we should refer a question to the CJEU to see whether it is compatible with the EU requirement of an effective remedy. When invited to formulate the question, Mr Bedford suggested:
"Is this Court lawfully precluded by a national procedural rule (Ravichandran) from ordering the Secretary of State to grant refugee status on the basis that an applicant would have qualified for it at the relevant time but for the denial of a right of appeal?"
His submission is that Ravichandran stands in the way of ensuring that the aims of the Directive are met.
- Ravichandran is not a one-way street. The most recent material (for example, evidence of developments in an applicant's private or family life or up-to-date country guidance from the Upper Tribunal) may enhance an applicant's case just as it may undermine it. Simon Brown LJ made that perfectly clear (at page 113). It is to that extent a protective principle. Moreover, as the authorities leading to and synthesised in KA demonstrate, the principle is susceptible to mitigation, particularly in favour of an applicant at or towards the favourable end of the "hypothetical spectrum". On the other hand, corrective relief should not be permitted to confer a status which is not merited. As Sir Stanley Burnton said in EU (at paragraph 6):
"… 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 … is to use the power to grant leave to remain for a purpose other than that for which it is conferred."
See also paragraph 34, where Sir Stanley observed that it is inherent in this context that decisions made at different times may have different outcomes but, in general, delays "do not justify their determination on [an] artificial basis of obsolete facts".
- In my judgment, there is no need whatsoever for a reference to the CJEU. Ravichandran remains an even-handed principle which ensures that, when asylum cases are considered on appeal, those currently at risk on return to their countries of origin are not returned and those who are not or are no longer at such risk are not accorded a status which they do not merit.
4. The Charter
- Article 47 of the Charter provides:
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article."
The conditions reflect those set out in Article 6 of the ECHR.
- I do not think that this provides any additional support which could sustain these appeals. My conclusions on effective remedy in relation to Article 39 of the Directive are equally applicable to the attempt to rely on the Charter. In fairness to Mr Bedford, he did not seriously submit otherwise.
- It follows from what I have said that I would dismiss these appeals. The question of remitting the issue of damages does not arise.
Lord Justice Beatson:
- I am grateful to My Lord Maurice Kay LJ for his comprehensive and clear description and analysis of the factual position and the legal issues in these two appeals. I agree with his conclusion that the appeals should be dismissed because a remedy by way of judicial review is, in the circumstances of these cases, an effective remedy which satisfies the requirements of Article 39 of the Procedures Directive. I add a short judgment about Mr Blundell's alternative submission.
- I do not consider that the short delay before appellants such as these would be able to appeal against an adverse decision by the Secretary of State made after their 18th birthday means that the totality of the remedy they have is not "an effective remedy" within Article 39. As was stated in Samba Diouf's case, the Procedures Directive lays down minimum standards. Article 39 requires Member States to ensure that applicants have the right to "an effective remedy", not that they should have the most effective remedy. The suggestion that a delayed remedy by way of appeal would not, in principle, suffice because (see  of my Lord's judgment) it would not necessarily be as effective as an immediate one would have been appears to require a higher threshold than "an effective remedy".
- I also consider that to regard the right of appeal after the short delay envisaged in cases such as these as inadequate and not an "effective remedy" could undermine the legislative decision to restrict the right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 to those who have been given leave to enter for more than 12 months. That policy was not criticised by this court in FA (Iraq) v Secretary of State for the Home Department  EWCA Civ 696. It serves the useful purpose of helping to avoid duplication between decision-making at first instance and on appeal in cases in which the Secretary of State will be reconsidering a person's position in the near future.
- It may be the case that delaying an appeal until after a person's 18th birthday would mean that it would not be necessary for the best interests of that person as a child to be a primary consideration in the decision-making process pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. But such applicants will, in the light of KA (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1014, be treated as young people and their whole history will be considered. I am concerned that to regard the fact that an immediate appeal would be an appeal by a child whereas an appeal within what would otherwise be a reasonable period would be an appeal by a young adult as a reason for finding the remedy to be inadequate and not an effective remedy under Article 39 would be undesirable from a policy point of view. If it is not appropriate, for the reasons given in the cases referred to by my Lord at , to use a principle of "corrective relief" to confer a status which is not merited, then it is also arguably not appropriate to require the case of a person who will very shortly fall out of a category to be decided before he does so when his interim position is fully protected and where the result might be to confer a status which, although warranted for a few months, would not be merited thereafter.
- I would therefore dismiss the appeal on the basis of Mr Blundell's alternative submission as well his primary submission.
Lord Justice Briggs:
- I agree that these appeals should be dismissed for the reason in which both my Lords concur, namely that judicial review was in the circumstances an effective remedy for the appellants in relation to the otherwise unappealable grant to them of DLR for less than a year.
- Had it been necessary to do so, I would like Beatson LJ have been inclined to accept Mr Blundell's alternative submission that the combination of judicial review, DLR for less than a year and a right of appeal against the refusal of a subsequent application amounted to an effective remedy, even in circumstances where the appeal would be unlikely to be determined before the appellant reached his 18th birthday. But I would prefer to express no final view upon what seems to me to be a rather artificial hypothesis, in the light of the positive conclusion about the effectiveness of judicial review upon which we are all agreed.
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