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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC 3296 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Shakil Najib for the Defendant
Hearing dates: 14 October 2011, 20 October 2011 and 21 October 2011
Crown Copyright ©
MR JUSTICE LINDBLOM:
"1. With some hesitation I have granted permission on the basis that it is arguable that the failure to generate an appeal that can examine whether the claimant is entitled to protection under the EU Qualification Directive is unlawful because:-a. A child who is recognised as a refugee or otherwise entitled to subsidiary protection is better off in terms of the duration of the LTR to be granted in the UK and the possibility of its extension beyond the age of majority.b. DS (Afghanistan)  EWCA Civ 305 suggests that special duties may be owed children who have lost contact with their parents/carers in Afghanistan and a member of [a] social group in the absence of an ability to re-establish contact;c. An appellate remedy cannot be effective remedy within the meaning of Article 39 of the Procedures Directive if it cannot address the factual situation giving rise to a protection claim until such time as the factual basis of the claim has disappeared with the passage of time....".
"73. However, it has been decided to exercise discretion in your favour and grant you limited leave to enter the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave because you are an unaccompanied child for whom we are not satisfied that adequate reception arrangements in your own country are available."
The claimant was told that he must apply to extend this leave before it expired if he wished to remain in the United Kingdom. In paragraphs 77 and 78 of the letter the Secretary of State said:
"77. In coming to this decision, regard has been given to the statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, "Every Child Matters: Change for Children", issued under section 55 of the Borders, Citizenship and Immigration Act 2009.
78. Your case has been handled in line with the requirements of the Act, and any relevant information, where appropriate, has been shared with those responsible for your care to safeguard you and promote your welfare."
"1. A Declaration that sections 82 and 83 of the Nationality[,] Immigration and Asylum Act 2002 are incompatible with [the claimant]'s EU right to an effective remedy against the refusal of his asylum claim;
2. Compensation for the loss and damage and anxiety caused by reason of the aforesaid serious breach of EU law; and
3. An Order requiring [the Secretary of State] to grant [the claimant] a right of appeal to the Tribunal forthwith."
" At paragraph 12 [of the summary grounds] you suggest that our client's route to appeal opened up for him on 2 June 2011, 28 days prior to 1 July 2011, the date of the expiry of his Discretionary Leave to Remain, because as of 2 June 2011 he was entitled to make, what is in effect, a second asylum claim by application for HPDL, refusal of which would then entitle him to a right of appeal by section 82(1)(d) of the 2002 Act. However, your client does not offer any guarantee that the decision [on] any appeal in relation to the HPDL application would be finally determined before our client turns 18.
It appears that Blake J was unimpressed by this route to appeal because in his decision of 30 March 2011 granting permission he does not mention it.
The fact is that Afghan children have a strong claim for asylum whilst they are children, but their prospects of success diminish markedly when they turn 18. Thus any remedy loses most of its value if the appeal is not heard while the applicant is still a child. ".
The issues for the court
The 2002 Act
"An "immigration decision" means (a) refusal of leave to enter the United Kingdom,(b) refusal of entry clearance,(c) refusal of a certificate of entitlement under section 10 of this Act,(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 affect, the person has no leave to enter or remain,(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,(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 1999 (removal of person unlawfully in United Kingdom),(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration 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),(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),(ib) A decision to make an order under section 2A of that Act (deprivation of right of abode),(j) A decision to make a deportation order under section 5(1) of that Act, and(k) refusal to revoke a deportation order under section 5(2) of that Act."
The refusal of a claim for asylum is not an "immigration decision" within the meaning of section 82 and therefore does not carry a right of appeal under that section.
"(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."
"(1) This section applies where
(a) a person has made an asylum claim,(b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,(c) a decision is made that he is not a refugee, and(d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.
(2) The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave."
"(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds
(g) That removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights."
"(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j).
(4) This section also applies to an appeal against an immigration decision if the appellant
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, ".
"Mr Malins: Amendment No.400 would ensure that applicants granted temporary leave of up to one year could appeal against the rejection of their asylum claim. Applicants who are granted temporary leave of a year or less should be able to access the appeal process to pursue their claim. If that right is denied, there is no bar to the Secretary of State granting periods of leave consecutively, thereby denying individuals the right to refugee status and consequently the right to be reunited with family members. That is particularly worrying for children, as they are frequently granted leave to enter or remain for periods of less than one year up to their 18th birthday. A respected NGO suggested this probing amendment."
The proposed amendment was, however, withdrawn after the minister had explained the position, in this way:
"Ms Winterton: The clause will allow a specific upgrade appeal when the asylum claim is rejected and leave is granted exceptionally, provided that the leave is for more than one year. The appeal is specifically against the rejection of the asylum claim, and other grounds cannot be put forward. In that sense, it is not a one-stop appeal. The appeal is not available for those given a year's leave or less, because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year's further leave, it will attract a right of appeal
Amendments Nos. 400, 430 and 431 would allow failed asylum seekers who have been given a short period of exceptional leave to remain 12 months or less to appeal against the decision to refuse asylum. If it is decided at the end of the period that they are able to return to their own country, they would then have a further right of appeal against any decision to seek to remove them.
I should give some reassurance about how we believe that the process will work, as there has been some misunderstanding. If a person arrives from a country that is in turmoil and their claim for asylum is rejected, they may be given exceptional leave to remain because it is felt that it would be safe for them to return at the end of the 12-month period. If a decision is made at the end of that period to remove the person, he or she can appeal on the grounds of asylum. Asylum considerations will be taken into account at that point and the appeal revisited.
That is how we see the system working, and we do not believe that the system will be used year after year to grant continuous periods of exceptional leave to remain. The amendment will increase the number of likely appeals. The system that we have instituted is fair, and to introduce more appeals would, as I hope the hon. gentleman agrees, run counter to earlier statements about the need for a system that is fair and robust but which streamlines rather than increases the number of appeals. I hope that, with those reassurances, the hon. gentleman will withdraw his amendment."
Lord Filkin explained the government's position in the course of the debate in the House of Lords (23 July 2002 Hansard, HL vol 638, col 328):
" The Committee may ask why we are doing this. I hope for reasons that noble Lords will understand. Again let me take as an example the number of Kosovans. If a substantial number of people were able to return, it would clog up the appeal system before it was necessary to test their appeals. If at the end of their year we should decide that they should go back that they should not have a right of asylum they will then have the right of appeal, which they can exercise through the due process of which the Committee is aware.
The Borders, Citizenship and Immigration Act 2009
"(1) The Secretary of State must make arrangements for ensuring that (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard andpromote the welfare of children who are in the United Kingdom,(2) The functions referred to in subsection (1) are (a) any function of the Secretary of State in relation to immigration, asylum or nationality(6) In this section "children" means persons who are under the age of 18;(7) A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section. ".
Council directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status ("the Procedures Directive")
"This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union."
Paragraph (9) provides that "[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination". Paragraph (11) provides that arrangements for 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 this Directive". Paragraph (14) provides: "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."
Paragraph (27) states:
"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."
"1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14, Member States shall:
(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. ;(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview .
Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.
2. Member States may refrain from appointing a representative where the unaccompanied minor:(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or(b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or(c) is married or has been married.
3. Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative.
4. Member States shall ensure that:(a) if an unaccompanied minor has a personal interview on his/her application for asylum as referred to in Articles 12, 13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;(b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.
5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum.
6. The best interests of the child shall be a primary consideration for Member States when implementing this Article."
"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, including a decision:(i) to consider an application inadmissible pursuant to Article 25(2),(ii) taken at the border or in the transit zones of a Member State as described in Article 35(1),(iii) not to conduct an examination pursuant to Article 36;(b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20;(c) a decision not to further examine the subsequent application pursuant to Articles 32 and 34;(d) a decision refusing entry within the framework of the procedures provided for under Article 35(2);(e) a decision to withdraw refugee status pursuant to Article 38.
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 2004/83/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.
"This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. ...".
Paragraph (6) provides that "[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination".
"The best interests of the child shall be a primary consideration for Member States when implementing the >provisions of this Directive that involve minors."
"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. ".
Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 ("the 2005 Regulations"), which carries the duty in Article 19(3) of the Reception Directive into domestic legislation, provides, under the heading "Tracing family members of unaccompanied minors":
"(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. ".
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("The Qualification Directive")
P>"This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union ".
Paragraph (11) provides that "[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination". Paragraph (12) of the preamble to the Qualification Directive provides:
"The 'best interests of the child' should be a primary consideration of Member States when implementing this Directive."
" A person's grant of asylum under paragraph 334 will be revoked or not renewed if the Secretary of State is satisfied that:
(v) he can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality; ".
Paragraph 2 of Article 11 requires Member States, when considering point (e) of paragraph 1, to have regard to "whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded". Article 14 provides for "Revocation of, ending of or refusal to renew refugee status". Article 14(5) provides that in the situation described in paragraph 4 of Article 14, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken. The two situations referred to in Article 14(4) arise when:
"(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State".
"As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3)."
The Charter of Fundamental Rights of the European Union
"1. Any discrimination based on any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited."
Article 24, "The rights of the child", provides:
"1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests."
In Title VI, "Justice", Article 47 of the Charter, "Right to an effective remedy and to a fair trial", 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. Everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal previously established by law ".
"The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms."
The United Nations Convention on the Rights of the Child 1989
This is a binding obligation in international law. It has been translated into national law, in England and Wales, by section 11 of the Children Act 2004 and, as it bears on immigration decisions, by section 55 of the 2009 Act (see paragraph 23 of the judgment of Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department  2 WLR 148).
"The question whether or not the appellants have refugee status is not just of theoretical importance to the appellants. They have been given leave to enter the United Kingdom because article 3 of the European Convention on Human Rights forbids their return to their home countries for so long as they are at risk of torture or inhuman or degrading treatment or punishment there. So far so good, but leave to enter does not give them a right to remain in this country. If their claims for asylum are recognised, however, all the benefits of the Refugee Convention will then be available to them. The uncertainty that attaches to their present lack of status will be replaced by the status which the Contracting States have undertaken to accord to a refugee and by all the rights that attach to it. This is a very substantial additional benefit which is well worth arguing for."
The advantages of refugee status over subsidiary protection were recognized in Adan v Secretary of State for the Home Department  1 AC 293. Lord Lloyd of Berwick noted (at page 303 A-B) that there are "certain benefits in being accorded such status, which are not available to those who have exceptional leave to remain" and that those benefits had been well described in the judgment of Simon Brown LJ (as he then was) in the Court of Appeal  1 WLR 1107. Simon Brown LJ had said (at page 1113):
"There are, however, significant advantages beyond irremovability in being recognised as a refugee. In the first place, there are advantages under the Convention [relating to the Status of Refugees]. For example, under article 28 refugees are entitled to travel documents to enable them to travel abroad, and under article 23: "The contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals." They may not, therefore, be deprived of benefits as, in the U.K., refused asylum seekers are.
Secondly, under national law too, there are significant advantages in recognition, albeit conferred as a matter of discretion. One advantage is that refugees obtain indefinite leave to remain after four years, whereas those granted exceptional leave must generally wait for seven years. Similarly, refugees are entitled to immediate family reunion whereas those with exceptional leave normally have to wait four years and, moreover, a special policy is applied to Somali refugees enabling them to bring in their extended families."
At page 1116 Simon Brown LJ added:
" non-refoulement constitutes part only of the benefits attaching to refugee status and, as indicated, the part presently least important to these applicants who cannot be removed anyway. Their concern rather is not to remain here in limbo without benefits, without security, unable to travel, unable to bring in their families but instead to enjoy the specific advantages to which refugees are entitled under both international and domestic law. "
(see also Saad, Diriye and Osorio v Secretary of State for the Home Department  EWCA Civ 2008).
The best interests of the child
"23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3.1 of the UNCRC: "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." This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Border, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions "are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom".
24. Miss Carss-Frisk acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be "in accordance with the law" for the purpose of article 8.2. Both the Secretary of State and the tribunal will therefore have to address this in their decisions."
"The sole remaining question is, therefore, whether the appellant's ill-treatment would amount to persecution for one of the reasons mentioned in Article 1A(2) of the Refugee Convention. The only one proposed is "membership of a particular social group". The Immigration Judge took the view that, insofar as the appellant's claim to risk of persecution for membership of a particular social group depended on his being a child, it could not succeed, because age is not an immutable characteristic."
In paragraph 6, the tribunal stated:
" We think that for these purposes age is immutable. It is changing all the time but one cannot do anything to change one's own age at any particular time. At the date when the appellant's status has to be assessed he is a child and although, assuming he survives, he will in due course cease to be a child, he is immutably a child at the time of assessment. (That is not, of course, to say that he would be entitled indefinitely to refugee status acquired while, and because of, his majority. He would be a refugee only whilst the risk to him as a child remained."
In paragraph 7, the tribunal said:
"But [the Immigration Judge's] findings do establish that the appellant is an orphan and would be at risk. In the light of the expert evidence, we conclude that the risk of severe harm to the appellant, as found by the Adjudicator, would be as a result of his membership of a group sharing an immutable characteristic and constituting, for the purposes of the Refugee Convention, a particular social group. We therefore substitute a determination allowing his appeal under s83."
"3. The appellant's claim that he was in fear of the Taliban had been rejected at the earlier hearing and his appeal was based on the principle established in LQ (age: immutable characteristics) Afghanistan  UK AIT 00005 the application of which has not been challenged by the Secretary of State ("the respondent") in this appeal. The finding in that case, at paragraph 4, was that the applicant, aged 15 at the date of the hearing on 6 October 2006, was an orphan and that "there would be no adequate reception facilities in Afghanistan and that, as an orphan, the appellant would be subject to the risks of exploitation and ill-treatment adumbrated in that evidence" [the expert evidence before the Tribunal].
6. The first issue is as to the role of the Secretary of State when an unaccompanied minor claims asylum. The second issue is whether the Tribunal was entitled to infer, adopting the language of the Tribunal in LQ, that adequate reception facilities are available."
Pill LJ went on to say:
"44. I do not accept the submission of Mr Waite that the Secretary of State was entitled to do nothing by way of tracing enquiries. Regulation 6(1) of the 2005 Regulations, following the Directive, imposes a plain duty on the Secretary of State to endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum. I reject the submission that, because the Regulations deal with the reception of asylum seekers, the duty does not arise and I fail to see how the Secretary of State can ignore her regulation 6 duty when considering the asylum application. The possibility and desirability of a safe return are factors which should be considered from the start, as stated in the policy document.
48. I would allow the appeal and remit the case to the Tribunal for further consideration, including the hearing of evidence. ".
Lloyd LJ acknowledged, in paragraph 54 of his judgment, that it is necessary to have a consistent basis of definition for the particular social group in question. Referring to the tribunal's observation in LQ that such a person would be a refugee only while the risk as a child will remain, he noted "a degree of uncertainty as to the definition of the particular social group":
" Does membership cease on the day of the person's eighteenth birthday? It is not easy to see that risks of the relevant kind to a person who is a child would continue until the eve of that birthday, and cease at once the next day. However, for present purposes it is sufficient that the particular social group is recognised consisting of Afghan citizens who are under 18 years old and who are orphans, whether strictly speaking or in practical terms. It is open to the present appellant to seek to show that he is in this category, for which purpose he has to prove, to the necessary standard, that he is, in practical terms, an orphan."
Lloyd LJ also said this:
"67. It seems to me clear that the obligation to endeavour to trace the family is independent of the process of the asylum claim: expressly, it is not to wait for the outcome of the asylum claim and it is therefore a quite separate process.
68. The obligation to endeavour to trace under regulation 6 applies when a child has made an asylum application, but the application is to be determined on its merits, whether or not any steps have been taken pursuant to the obligation. To that extent, I would accept the submission of Mr Waite for the respondent that the obligation to endeavour to trace is distinct from the issues that arise on an application for asylum. If steps have been taken pursuant to the obligation under regulation 6, the results, if any, may be relevant to the determination of the asylum application, depending on what the issues are on that application. In fact, no attempt to trace was made by UKBA in the present case. All that was done was to draw to the attention of the appellant or his foster-carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. There is a question as to whether the use made of these facilities on or on behalf of the appellant was appropriate, but nothing was done pursuant to regulation 6. It seems to me that failure is not, by itself, relevant to the determination of the appellant's asylum application. However, the Secretary of State is still subject to the obligation, and steps ought now to be taken to comply with that obligation."
Lloyd LJ went on to say:
"83. I would allow the appeal and remit the case to the Upper Tribunal for a further reconsideration hearing, in relation to which regard must be had to the factors relevant under section 55.
84. The appellant claimed in the alternative that he was entitled to humanitarian protection. The AIT held that he was not. So far as I can see the two issues are governed by the same facts and considerations. In the light of the court's decision in FA (Iraq) v SSHD  EWCA Civ 696, I would remit the case on the basis that the reconsideration by the Upper Tribunal should address his claims both under the Refugee Convention and to humanitarian protection."
Rimer LJ said this:
"88. In arriving at its determination, the AIT gave no consideration to the obligation upon the Secretary of State, under section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that her functions in relation to the appellant's asylum application were discharged 'having regard to the need to safeguard and promote the welfare' of the appellant whilst in the United Kingdom. It was conceded on behalf of the Secretary of State in ZH (Tanzania) that the section 55 duty extends to the disposition of an asylum application by a child such as the appellant (paragraph 24 of Lady Hale's judgment). In this case, however, there is a real question as to whether that duty has been discharged. "
"The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be "effective" in practice as well as in law. In particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.
And in Jancikova v Austria (App no 56483/00)  ECHR 56483/00 the court said (in paragraph 38 of its judgment): "38. The scope of the Contracting States' obligations under art 13 varies depending on the nature of the applicant's complaint; however, the remedy required by art 13 must be "effective" in practice as well as in law (see, for example, Ilhan v Turkey  ECHR 22277/93 at para 97). The term "effective" is also considered to mean that the remedy must be adequate and accessible (see Paulino Tomas v Portugal (dec), no 58698/00, ECHR 2003-XIII). In addition, particular attention should be paid, inter alia, to the speediness of the remedial action itself, it not being excluded that the adequate nature of the remedy can be undermined by its excessive duration (see Tome Mota v Portugal (dec), no 32082/96, ECHR 1999-IX; and Paulino Tomas, cited above)."
"22. I recognize the importance to be attached to the loss of the potential right to an in-country appeal against any refusal of variation of leave to remain. It is true that the chances of such an appeal eventually meeting with success may have been slim: on this I see the force of the points made by Mr Waite about the substantive merits of such an appeal. Nonetheless, it is to be borne in mind that such an appeal process would have afforded the applicant the advantage of an independent judicial consideration of those merits as they stood at the time. This is a significant advantage when compared with the arguments which could be put forward on a judicial review of a decision by the Secretary of State that no new asylum or human rights claim had been advanced. The appellant has lost that advantage because of the errors of law by the adjudicator and the AIT.
23. He cannot, of course, now be restored to the position he would have been in, had he been granted discretionary leave to remain until his 18th birthday. Mr Waite is right to emphasise that. But the loss which the appellant has suffered is a consideration which the Secretary of State should consider in the exercise of his discretion as to whether the appellant should now be granted any further leave to remain and, if so, for how long."
Section 83 of the 2002 Act
"13. It is, of course, commonplace that in the great majority of cases both the Secretary of State and, on appeal, the Asylum and Immigration Tribunal will consider asylum claims, human rights claims and (to the extent that they are different) claims for humanitarian protection at one and the same time. The great majority of such appeals are conducted pursuant to section 82 of the 2002 Act in the context of an actual immigration decision as defined in that section, and the status of the appellant as a refugee who may be entitled to asylum will be considered in the course of that appeal against the relevant immigration decision. Section 83 is the only section which gives the right to appeal against refusing the applicant asylum and as such it can be legitimately categorised as a "status appeal" as opposed to an appeal against a particular immigration decision. It is nevertheless a restricted right; it is, in the first place, restricted to person who have been given leave to enter for a period of more than12 months. This is presumably to ensure that cases which the Secretary of State is, in any event, going to reconsider in the near future do not have a right to appeal which may be ongoing at the same time as the Secretary of State is reconsidering the position."
21. It is, of course, for the domestic legal system of each member state to lay down relevant rules governing actions intended to ensure the protection of rights conferred by Community law, but it is also well settled that such rules must comply with two conditions: (i) they must not be less favourable than the rule governing similar domestic actions (the principle of equivalence); and (ii) they must not render the exercise of Community rights virtually impossible or excessively difficult (the principle of effectiveness): see Tridimas, The General Principles of EU Law, 2nd ed (2007), p 423."
Pill LJ said (in paragraphs 36, 37, 46 and 47 of his judgment):
"36. For the applicant Mr Husain QC submitted that, by reason of the Qualification Directive, section 83 must now be read as including a right of appeal against a refusal of "subsidiary protection status" under the Directive. Mr Husain relied on the principle of equivalence which, as defined in Tridimas, The General Principles of EU Law, 2nd ed, p 423, requires the legal system of each member state to lay down rules governing actions intended to ensure the protection of rights conferred by Community law which are not less favourable than the rules governing similar domestic actions. The principle was stated in Peterbroeck v Belgian State (Case C-312/93)  All ER (EC) 242.
37. In para 12 of its judgment the Court of Justice of the European Communities stated:"The court has consistently held that, under the principle of co-operation laid down in article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law."
46. It is primarily for the national court to determine what national claims may be considered to be comparable to the claim based on Community law in the proceedings: Tridimas, p 425. Mr Payne submitted that a claim under the Directive is dissimilar from the domestic claim under the Refugee Convention, and the different approach to the two which follows from the construction of section 83 of the 2002 Act is justified. Mr Husain stressed the importance to a beneficiary of protection under the Directive of the status and bundle of rights that goes with it. These are similar to the rights granted to refugees. The law of England and Wales cannot, he submitted, deprive a person who may be entitled to subsidiary international protection status of the right to have the determination of that status decided by an independent tribunal. The exercise of that right cannot be deferred compulsorily until a decision which comes within the scope of section 82 of the 2002 Act has been made.
47. The rights of a refugee, as now provided in national law, and the rights of a person with subsidiary protection status, as provided by the Directive, are in many respects similar. They are sufficiently similar, in my judgment, to require national law to provide the person seeking international protection of that kind to have the same remedy of recourse to an independent tribunal against and adverse decision of the Secretary of State as has a person seeking international protection as a refugee. That requires section 83 to be read as applying to a person who has sought subsidiary international protection under the Directive as it applies to a person who has sought asylum. I add that the similarity in status has also been recognised by the amendments to the Immigration Rules made consequent upon the Directive. I accept the above submission of Mr Husain on this issue."
Relevant policy and guidance
"Processing asylum applications from children"
"5. With effect from 1 April 2007 this policy is being amended. The purpose behind the change is to enable the Border and Immigration Agency to deal with any application to extend or to vary leave and any subsequent appeal prior to the young person turning 18, providing more clarity to the young person about their future.
6. For all decisions made on or after 1 April 2007 (where asylum/HP is being refused) DL must only be granted to 17.5 years (or for 3 years (or 12 months for certain countries), whichever is the shorter period of time)."
"The UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed.
The child does not qualify for asylum or humanitarian protection or otherwise under the general
Discretionary Leave general policy; and;
The UK Border Agency is not satisfied that the child will be able to access adequate reception arrangements in the country to which they will be removed;
The child should normally be granted Discretionary Leave for three years or, with effect from April 2007, until they are 17 ½ years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN)."
The "Policy, Guidance & Casework Instruction" on the "Cancellation, Cessation & Revocation of Refugee Status"
"Withdrawing a person's refugee status through cancellation, cessation or revocation action is a serious matter
and should not be undertaken lightly. ".
" a person's grant of asylum under paragraph 334 will be revoked or not renewed if the Secretary of State is satisfied that:
(v) he can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the country of nationality; ".
The "Asylum Policy Instruction" on "Refugee Leave"
"This section should be read in conjunction with the AI on Cessation, Cancellation and Revocation of Refugee
All reviews should be considered on an individual basis. Withdrawing an individual's refugee status, curtailing their refugee leave and/or refusing their application for a further grant of leave on the basis of their refugee status are important decisions. The burden of proof is upon UKBA to show that a person is no longer eligible for refugee status and clear evidence will be required to justify that decision.
Where a refugee applies for a further period of leave towards the end of their period of limited leave, it will not normally be necessary to conduct and in-depth review to determine whether the individual is still a refugee. Nevertheless, where a person will be subject to an active review, the individual concerned must be informed in writing that their refugee status is under review, the reasons for this reconsideration and the consequences of withdrawal/cessation of refugee status on their leave. The individual should be offered the opportunity to submit reasons as to why their refugee status should not be withdrawn, as well as any other reasons why they should be permitted to remain in the UK before a decision on their refugee status is made. "
In the same document, in section 6, "Trigger 2: Review on the basis of a significant and non-temporary change in the conditions in a particular country (cessation)", the following passage appears:
"Paragraphs 339A (v) and (vi) provide that a third country national or stateless person shall cease to be a refugee if he or she can no longer, because of the circumstances in which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality.
This will apply, for example, where there is a significant and non-temporary change in country conditions such that a refugee from that country or part no longer has a well-founded fear of persecution. In such situations, Ministers may decide to review all grants of refugee status made to refugees while potentially affected by that change and who have been granted limited leave within the previous five years of that decision. Sometimes, the improved circumstances will be limited to a specific category of refugees in a given country or part and the review will be limited to that category.
A decision that a country or part has improved sufficiently to justify the review if the status of those refugees potentially affected by that change will be communicated upon and will be taken only after consultation with UNHCR. Country information will be the basis of such a decision being reached.
Caseworkers will then conduct reviews of refugee status and refugee leave for refugees within the scope of the ministerial statement on a case by case basis to assess whether any individual refugees fall within the cessation provisions of the Refugee Convention as a result of the change in country conditions. In particular, caseworkers will have regard to Article 1C(5) and (6) of the Refugee Convention, which provide that the Refugee Convention will cease to apply to a person if:
- He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; or
- Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence.
Submissions for the claimant
Submissions for the Secretary of State
The scope of the claimant's challenge
The timing of the appeal to the tribunal
The claimant's claim for asylum
18. The element of his claim that is within the scope of the principle in LQ will no longer need to be determined. But the other elements of it will still be live. Whenever his appeal is heard the claimant will have the opportunity to tell the tribunal what happened to him in Afghanistan and what he believes would be done to him if he went back. He will be able to contend that he ought to be allowed to remain in the United Kingdom because he has a well-founded fear of persecution in Afghanistan. He will have the chance to contest the Secretary of State's findings of fact in the UK Border Agency's letter of 12 November 2010. The tribunal will reach findings of its own. It will judge the credibility of the claimant's account. And it will draw conclusions on the whole of the evidence and submissions presented to it, in the light of the circumstances as they are at the time. Changes in circumstances that have occurred since the clamant originally made his claim for asylum will not be ignored. This is the situation in which any appellant adult or child will find himself when his appeal comes to be heard by the tribunal.
The burden of proof
The tracing duty
The Charter of Fundamental Rights of the European Union
Article 23 of the Procedures Directive