B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE BEATSON
LORD JUSTICE UNDERHILL
|| AA (AFGHANISTAN)
||- and -
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
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Stephen Knafler QC and Anthony Vaughan (instructed by Luqmani Thompson & Partners) for the Appellant
Jonathan Hall (instructed by The Treasury Solicitors) for the Respondent
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Lord Justice Underhill :
- The Appellant is a native of Afghanistan. His precise date of birth is unknown but it is common ground that he should be treated as aged 17 and he has been given the notional date of birth of 1 January 1996. He came to this country, concealed in a lorry, some time in mid-2011. His journey was arranged by an agent whose services were, he said, obtained by his maternal grandfather. In due course he came to the attention of the police and on 13 October 2011 he claimed asylum. It was his case that his father was a known Taliban commander in Nangarhar province in eastern Afghanistan who had been killed in April or May 2011 and that he had then come under pressure from the local Taliban to become a suicide bomber and to avenge his father's death; and also that the local police were showing an unwelcome interest in him because they believed that he might indeed follow in his father's footsteps. For that reason his family that is, his mother and his younger brother moved away from his home village of Baghak to join his grandfather in a village called Jokan; but that was still not safe and his grandfather arranged for him to leave the country altogether.
- The Appellant's claim to asylum on that basis was refused by the Secretary of State on 20 February 2012, although she gave him leave to remain until he reached the age of 17½. An appeal was heard before the First-Tier Tribunal on 3 April 2012. The Appellant was represented by counsel. In a Determination dated 4 April 2012 Immigration Judge Hodgkinson concluded that the Appellant's account should be disbelieved in its entirety. In particular, he said that he did not accept that the Appellant's father was a member of the Taliban or was killed or that he and his family had to leave their home village and join his grandfather. He said, at para. 46:
"In fact, I conclude that neither the Taliban nor the Afghani authorities have ever held any specific or adverse interest in the Appellant of any kind. In short, I conclude that the Appellant is simply an Afghani youth who left Afghanistan, clearly with the benefit of some financial assistance, simply in order to seek a better life elsewhere."
He continued, at para. 47:
I find that the Appellant's father and mother, grandfather and at least his younger brother continue to reside in their family home in their village in Nangarhar where, I find, they have not suffered any specific or particular problems."
- Permission to appeal to the Upper Tribunal was granted, but the appeal was in due course dismissed. The Determination of Deputy Upper Tribunal Judge Drabu, dated 3 October 2012, is shortly expressed, and I need not at this stage quote from it. I should mention for completeness that there was an issue in the UT about whether the FTT should have treated the Appellant as having claimed for humanitarian protection as well as asylum; but it is not suggested that anything turns on that question for the purpose of this appeal.
- In both Tribunals the Appellant placed some reliance on DS (Afghanistan) v Secretary of State for the Home Department  INLR 389 ( EWCA Civ 305) (decided on 22 March 2011) and HK (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 315 (decided on 9 February 2012). The effect of those authorities was summarised, and their principles applied, in the case reported at different stages as KA (Afghanistan) v Secretary of State for the Home Department  1 WLR 615 ( EWCA Civ 1014) and EU (Afghanistan) v Secretary of State for the Home Department  Imm AR 3 ( EWCA Civ 32); but KA was not decided until after the decision of the FTT and EU not until after the decision of the UT. I shall have to return to these authorities shortly, but at this stage it is sufficient to say that they are concerned with the duty placed on the Secretary of State by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace the members of the family of unaccompanied asylum-seeking children ("UASCs" in the jargon): I will refer to this as "the tracing duty". It was submitted on the Appellant's behalf that the Secretary of State was in breach of that duty, though the submission does not appear to have been at the centre of his case, and it is not clear precisely how it was deployed.
- In the grounds of appeal to this Court the argument based on breach of the tracing duty was given more prominence. Permission was refused on the papers by Sir Stanley Burnton. As regards the alleged breach of the tracing duty he said that the pleaded case was inconsistent with the then very recent decision in EU. But when Moses LJ gave permission to appeal he made it clear that it was this aspect which led him to do so. Before us Mr Stephen Knafler QC for the Appellant has likewise confirmed that the single point in the appeal is whether the Secretary of State's refusal of asylum was vitiated by a breach of the tracing duty; and, if so, what remedy should be granted. In his skeleton argument he did advance some criticisms of the reasons given by the FTT for concluding that the Appellant's account was not credible; but they were secondary to the principal argument and were not pursued in his oral submissions.
- Reg. 6 of the 2005 Regulations (which faithfully transposes art 19.3 of Council Directive 2003/9/EC) reads (so far as material):
"(1) So as to protect an unaccompanied minor's best interests, the Secretary of State shall endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum.
(2) In cases where there may be a threat to the life or integrity of the minor or the minor's close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety.
(3) For the purposes of this regulation
(a) an unaccompanied minor means a person below the age of eighteen who arrives in the United Kingdom unaccompanied by an adult responsible for him whether by law or custom and makes a claim for asylum;
The principal object of the duty imposed by reg. 6 (1) is to facilitate family reunification where that is possible, or in any event renewed contact between family members. That is self-evident, but the subject is fully discussed in Section VII of a publication of the United Nations Committee on the Rights of the Child entitled Treatment of Unaccompanied and Separated Children outside their Country of Origin (2005): the relevant passages are reproduced in full at para. 65 of the judgment of Lloyd LJ in DS (pp. 408-9).
- I need also to refer to section 55 of the Border Citizenship and Immigration Act 2009, which reads, so far as material, as follows:
"Duty regarding the welfare of children
(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 and promote the welfare of children who are in the United Kingdom, and
(2) The functions referred to in subsection (1) are
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).
(6) In this section
"children" means persons who are under the age of 18;
The effect of section 55 of the 2009 Act has been considered in a number of cases, including no fewer than four in the Supreme Court namely ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166 ( UKSC 4); BH v Lord Advocate  4 All ER 600 ( UKSC 24); H (H) v Deputy Prosecutor of the Italian Republic, Genoa  1 AC 338 ( UKSC 25); and Zoumbas v Secretary of State for the Home Department  UKSC 74. The principles are now familiar and I need not set them out here.
- I have already identified the decisions of this Court which discuss the tracing duty: see para. 4 above. All involved unaccompanied minors from Afghanistan, who claimed asylum and/or humanitarian protection on the basis that if they were returned they would face the risk of exploitation and ill-treatment because there were no family members willing and able to look after them. I will not attempt any exhaustive analysis of those cases, but I should summarise the points emerging from them which are material to the issues before us.
- First, it was held in HK that in cases of this kind the tracing duty is "intimately connected with" the determination of the asylum application: see per Elias LJ at para. 40 and Pill LJ at para. 54. (Pill LJ had reached the same conclusion in DS. The reasoning of Lloyd LJ in that case was different; but it was held in HK not to be incompatible.) Elias LJ said that the reason why that was so was that "it is a necessary part of the section 55 duty
that the Secretary of State should obtain as much information as is reasonably possible to assist her in determining where [the child's] best interests lie" (loc. cit.) and compliance with the tracing duty is likely to yield information (positive or negative) relevant to that assessment (see para. 46): for example it might establish that there was no-one in Afghanistan who was able to look after the child if returned (see para. 39).
- Second, it follows that a failure to comply with the tracing duty may invalidate a decision to refuse asylum or humanitarian protection. But it will not necessarily do so. When Maurice Kay LJ summarised the "emerging principles" at para. 24 in his judgment in KA (p. 631A) he said only that "a failure to discharge [the tracing duty] may be relevant to judicial consideration of an asylum or humanitarian protection claim" and/or to consideration of the section 55 duty: he did not say that it would be decisive. That is because the breach of the tracing duty is not significant in itself but only insofar as it involves, or produces, a failure to comply with the Secretary of State's other duties and in particular her duty under section 55: see per Elias LJ in HK at para. 46. Thus Maurice Kay LJ emphasised at paras. 25 of his judgment in KA that a breach of the tracing duty would only impugn an adverse decision by the Secretary of State where there was a causative link between the breach and the claim to protection in that the claimant might have "lost the opportunity of corroborating his evidence about the absence of support in Afghanistan" by relying on the fact that the Secretary of State's tracing endeavours had proved negative (p. 631 E-F). He also emphasised at para. 26 (p. 631 F-G) that the burden of proving such a link is on the claimant.
- Third, the need for such a causative link means that the Court must consider in any case where a breach is found what are the prospects that, if the Secretary of State had made whatever endeavours were reasonable to trace the claimant's family, she would in fact have obtained information that would have affected her decision. In EU the Court sounded a note of caution about this. Sir Stanley Burnton said at para. 10 (p. 502):
"I should mention a point made by the Secretary of State which I consider to have substance. Unaccompanied children who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their fare and/or for a so-called agent to arrange their journey to this country. The costs incurred by the family will have been considerable, relative to the wealth of the average Afghan family. The motivation for their incurring that cost may be that their child faces risk if he or she remains with them in Afghanistan, or it may simply be that they believe that their child will have a better life in this country. Either way, they are unlikely to be happy to cooperate with an agent of the Secretary of State for the return of their child to Afghanistan, which would mean the waste of their investment in his or her journey here."
A closely related issue is the significance of any failure by the claimant to co-operate by supplying information which would assist in the tracing exercise, which was considered both by Elias LJ in HK (see para. 35) and by Maurice Kay LJ in KA (see para. 26 (pp. 631-2)). I need not however say more about this, since there has not in the present case been any positive finding of such a failure and we are not invited to make one ourselves.
- Fourth, in KA the Court held that the only possible inference from the facts both of the cases before it and of DS and HK was that the Secretary of State had regarded it as unnecessary to take any steps at all pursuant to reg. 6 (save informing the applicant about the services of the Red Cross) because of her policy of allowing all UASCs discretionary leave to remain until the age of 17½. It characterised that breach as "systemic": see para. 17 (p. 628).
- Fifth, the Secretary of State's duty is only to "endeavour" to trace the child's family. What that entails will vary according to the circumstances of the particular case see per Pill LJ in DS at para. 46; but merely drawing the applicant's attention to the services of the Red Cross will certainly not suffice see per Maurice Kay LJ in KA at para. 15 (p. 628 D-E).
- Sixth, where a breach of the tracing duty does operate to invalidate a decision to refuse asylum or humanitarian protection, it does not follow that asylum is the appropriate outcome: that depends on the circumstances. This question is discussed by Elias LJ in HK at paras. 48-51: I need not attempt to summarise the discussion here.
- Seventh, there is a particular problem in cases where an initial decision to refuse asylum taken when the applicant is still a minor is only successfully challenged after he has turned 18 or, in a case decided on further appeal, where he will have done so by the time of any remitted hearing. In KA it was held that in such a case the applicant could in principle invoke the approach first enunciated in R (Rashid) v Secretary of State for the Home Department  Imm AR 608 () EWCA Civ 744) but explained and reformulated in R (S) v Secretary of State for the Home Department  INLR 450 () EWCA Civ 546): see per Maurice Kay LJ at para. 25 (p. 631 C-D). Again, I need not say more about this, though I note Sir Stanley Burnton's remarks in EU about the very limited scope of Rashid as reinterpreted in S see paras. 7-8 (p. 501).
- I set out under this heading only the facts relevant to the breach of the tracing duty on which the Appellant relies and the consequential issues.
- The Appellant had a screening interview on 13 October 2011, i.e. the day that he first claimed asylum. He stated that his family address was Baghak village, Esarak district, Nangarhar province. He gave brief details of his family members living at home. He said he never went to school. He was asked "Do you know any phone numbers for any of your family back home? Record all numbers" to which he is recorded as answering "No". In his travel history he referred to his maternal grandfather and gave his name. He said he never had a national identity card.
- On 1 November 2011 the Appellant submitted a statement of evidence, completed with the assistance of his solicitors for the purpose of his application. This gave the account which I have summarised at para. 1 above. It named his home village as Baghak in the Esiarak district of Jalalabad (Jalalabad is the main city of Nangarhar province). But he made it clear that his family lived many hours walk from the village proper, in a remote mountainous location, with no school or mosque: the nearest mosque was small and had no name.
- The Appellant's formal asylum interview took place on 15 November 2011. As one would expect, it included questions about his original home village and about where his family were now living. As to the former, he gave no more information than in his original statement. As to the latter, his answer was, in effect, that his only adult relatives before he left were his mother and his grandfather and that he believed that his mother was living with his grandfather in Jokan, which was about four or five hours' walk from Baghak. He said he did not have any identity card. He was asked "have you contacted your family since your arrival in the UK?". He is recorded as replying "no because they live in a very between mountains [sic] so it is not possible to contact them". He was asked whether his family continued to live in Jokan. He said yes "they live with my grandfather but I am not exactly sure where they are living at the moment". He was told that if he would like to find his family he should speak to his solicitor/key worker as the Red Cross might be able to help. He said
"Someone has tried to find about my family. He is Pashtu he knows and I know that they are living in a mountain. I tried to contact them and find them."
- Nothing was done by UKBA in relation to the tracing of the Appellant's family until 19 February 2012 when it wrote to his solicitors as follows:
"In relation to your above named client's ongoing asylum application in the United Kingdom, please can you advise as to whether he would like the UK Border Agency's assistance in trying to locate his family in Afghanistan? If so, I would appreciate it if you could fill in and return the attached a family tracing pro-forma so that efforts can be made to trace his family.
I have also attached information in regards to the family tracing services currently offered by the ICRC [i.e. the Red Cross] which may be of interest to your client. Referrals to the ICRC cannot come from third parties, so please discuss this option with your client."
- The pro forma asked for basic personal details about the subject including passport and ID details; last known address in country of origin; name, address and telephone number for father, mother and siblings; details of employer, schools attended, family doctor; and address of any local place of worship, hospitals and "local landmarks". There is a box for any additional information.
- The Appellant's solicitors completed and returned the UKBA pro forma on 2 March 2012. He said his father was dead. He stated that he did not know his mother's date of birth, or her address ("I don't know now"), and did not have any telephone number for her. No information was given about his grandfather, and his "last known address" was given as Baghak rather than Jokan. He said that there was no local police station. The local hospital was 3-4 hours walk away in Esiarak. Local landmarks were simply "mountains".
- In the meantime indeed only the day after the letter of 19 February (indeed in practice the two may have coincided) the Appellant received UKBA's letter refusing him asylum and humanitarian protection, although, as I have said, he was granted discretionary leave to remain until the age of 17½. Paras. 78-84 of that letter deal with the tracing duty. They read:
78. Consideration has been given to the findings of DS (Afghanistan) v. Secretary of State for the Home Department,  EWCA Civ 305 in relation to the Secretary of State's obligations to assist in family tracing. In 2003 the United Nations published a report by the Secretary General on Assistance to unaccompanied refugee minors. The report noted:
"In cooperation with UNICEF, the International Committee of the Red Cross, the International Rescue Committee, other United Nations bodies, non-governmental organizations and other operational partners, UNHCR has emphasized family tracing and reunification as the most important durable solution for unaccompanied and separated refugee children. The core principle is family reunification, provided it is in the best interests of the child. Close cooperation with other organizations and Government in countries of asylum and of return is crucial for positive results."
79. The requirement to trace family members is found in Article 19 (3) of the Receptions Conditions Directive and transposed into UK law by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. In line with the general principle that family tracing should take place as soon as possible, you have separately been provided with a UKBA tracing form, requesting the particulars of your remaining family in Afghanistan. You have also separately been provided with information about the family tracing service offered by the International Committee of the Red Cross.
80. The International Committee of the Red Cross (ICRC) offer tracing and messaging services. Additionally, a free internet search engine called Refugees United [https://refunite.org/] taps into social networking technologies, searching for relatives and friends using a special database. You can enter your own details so others can recognise you, and you can search by county, country, last-known location or last name.
81. It should be noted that a third party (for example, the UK Border Agency acting on behalf of the Secretary of State) is unable to refer a case to the International Committee of the Red Cross; this is something that you should do yourself.
82. In light of the findings in DS efforts have been made to establish a method by which the Secretary of State can assist in locating the families of unaccompanied asylum seeking children in Afghanistan. Should you wish the UK Border Agency to make efforts to locate your family, please fill in and return the tracing pro-forma as soon and provide as much detail as possible in regards to all of your family in Afghanistan to allow this to be explored.
83. It should be noted that the UK Border Agency is currently unable to attempt to trace your family within Afghanistan. The Foreign and Commonwealth Office has confirmed there is no presence in Afghanistan that would currently be able to assist in conducting family tracing in Afghanistan. However, once your pro-forma is received, the decision maker will investigate as to whether there has been any progress in this regard. In the meantime, should you wish to trace your family you are strongly encouraged to use the services offered by the International Committee of the Red Cross and internet search facilities such as those operated by Refugees United with the assistance of your social worker or solicitor. If you apply to the ICRC for assistance in this regard, please provide the details of this to the UK Border Agency, so that efforts can be made to contact the ICRC and offer any assistance which may be of use.
84. The importance of efforts being made to trace your family in Afghanistan have not been underestimated. However, given the five month delay in reaching a decision on your asylum claim, it has been decided to issue this decision now, before any tracing exercise has been undertaken, in order to reduce the uncertainty which may arise out of having not been granted any status in the United Kingdom."
- It appears that with the assistance of the Refugee Council the Appellant did attempt to make use of the Red Cross tracing service; but the form which was completed gives no information beyond the name and location of his home village.
THE DECISIONS BELOW
- Most of the reasoning in the Determination of the FTT is concerned with the Appellant's asylum claim based on his alleged fear of persecution by the Taliban and/or the authorities. Since Mr Knafler does not challenge that reasoning as far as it goes (though he submits that it is vitiated by the failure to consider the effect of the Secretary of State's breach of the tracing duty) I need not summarise it here. But at para. 56 the Judge records that the Appellant's then counsel did raise a "further issue" based on the decision in HK. Her contention was recorded at para. 57 as being that the Secretary of State had provided no evidence to support the contention in her refusal letter see para. 83 that because there was no "presence" in Afghanistan it was impossible currently to offer the Appellant any assistance in tracing his family. The Judge does not in the following paragraphs address that case. At para. 60 he says simply that it was evident that the Secretary of State had had regard to her duty under section 55 of the 2009 Act, since she had referred expressly to it in an earlier passage of the letter, and that that was demonstrated by her grant of discretionary leave to remain. Nothing is said about the tracing duty.
- In the UT the Judge did expressly address the alleged breach of the tracing duty. He said, at para. 11:
"The ground suggesting that the respondent has an obligation to trace the family of the appellant is not well founded. Whilst it is true that the appellant himself has contacted the Red Cross to find out the whereabouts of his family, the respondent has not ignored her responsibility. In any event the obligation to trace is not unqualified or absolute. The determinative word in this context is "endeavour". In my judgment the respondent has made the endeavours that she could in the circumstances. I have had particular regard to paragraphs 56 to 60 of the determination."
It will be seen that the finding that the Secretary of State complied with her duty is wholly unparticularised: the cross-reference to the Determination of the FTT does not advance matters because, as I have said, the paragraphs in question do not address the case based on the tracing duty.
- It follows that both decisions are flawed. But it would only be right to allow the appeal if the Appellant has shown that his case based on breach of the tracing duty is well-founded or in any event that remittal was required so that it could be further considered.
THE APPELLANT'S CASE
- Mr Knafler in his clear and cogent oral submissions summarised his case under three heads.
(1) Breach of the tracing duty. He submitted that since the Secretary of State had taken no steps to endeavour to trace the Appellant's family in Afghanistan (except referring him to the Red Cross) she was evidently in breach of her duty under reg. 6.
(2) Consequences of breach of the tracing duty for the decision to refuse asylum. He submitted that on the facts of the present case the Secretary of State's failure to endeavour to trace the Appellant's family plainly had a causative link, of the kind contemplated in KA, to the decision to refuse asylum; and that that decision was accordingly vitiated.
(3) Remedy. He submitted that this was a case in which the only appropriate remedy was for this Court, or in any event the UT on remittal, itself to allow the Appellant's asylum claim, following the "Rashid/S approach".
- Heads (1) and/or (2) in practice require the Appellant to identify what steps it is said that the Secretary of State should have taken but did not take by way of endeavouring to trace his family. Before the FTT and UT he had adduced no evidence on that question, but before us he sought to introduce a report from Mr Tim Foxley MBE, an expert on political and social conditions in Afghanistan. Mr Hall, who appeared for the Secretary of State, did not object to our considering the report.
(1) BREACH OF THE TRACING DUTY
- This Court has in DS, HK and KA found the Secretary of State to have failed to comply with her duty under reg. 6 in relation to unaccompanied minors from Afghanistan, and in KA that breach was characterised as "deliberate and systemic" see para. 12 above. That finding, necessarily, related to the dates of the asylum claims which the Court was there considering, which were in the period from 2007 to early 2009 (prior, it should be noted, to the decision in DS). Nevertheless, if nothing had changed between then and the date with which we are concerned, which is early 2012, it would follow that she was equally in breach in the present case. I consider first whether that finding of systemic failure remains justified.
- It is clear that there has been at least some change in the Secretary of State's approach since 2009. In the passage from the refusal letter which I set out at para. 23 above she refers to the findings in DS (see paras. 78 and 82) and to reg. 6 and the underlying Directive (para. 79) and acknowledges "the importance of efforts being made to trace your family in Afghanistan" (para. 84). As she says at para. 79, the Appellant had been offered UKBA's assistance in tracing his family and given an UKBA "tracing pro forma so that efforts can be made to trace [them]" (see para. 20 above); and that offer is reiterated in the refusal letter itself (para. 83). It is true that the value of the offer is limited by the fact that the letter also says (loc. cit.) that "there is no presence in Afghanistan that would currently be able to assist in conducting family tracing". On the other hand the word "currently" and the reference to checking "whether there has been any progress in this regard" seem to imply that that may change in the foreseeable future; and it is also suggested that UKBA may be in a position to offer useful assistance to the Red Cross if the Appellant invokes their services.
- UKBA thus explicitly acknowledges the existence of the tracing duty, but the letter is nonetheless unsatisfactorily vague. It is regrettable that the Secretary of State has not sought at any stage in these proceedings to lodge any evidence about changes, actual or anticipated, in UKBA's procedures since the decision in DS and the more so since the Appellant had in the FTT expressly drawn attention to the absence of any evidence about tracing procedures beyond what appeared in the refusal letter. However, that omission is to some extent repaired by a witness statement dated 13 December 2012 lodged by her at the second stage of the KA appeals (that is perhaps surprisingly after the decision in KA itself but for the purpose of the consideration of the individual appeals reported as EU). That statement which was in fact put in evidence before us not by the Secretary of State but by the Appellant is made by Ms Ophelia Elliott, an Assistant Director in the Operational Policy and Rules Unit of UKBA who was "policy lead" in relation to the reg. 6 duty. It describes the methods by which, in principle, the families of UASCs may be traced, but it identifies serious difficulties about operating those methods in Afghanistan. Ms Elliott distinguishes between "remote avenues for tracing", such as telephone or e-mail or social media, and "tracing in person" that is, by an individual going to the area where the child's family might be found and making direct enquiries. As to the latter, she says (at para. 27):
"The only established UK resource currently available to the UK in Afghanistan is the FCO's Embassy in Kabul. However, due to the adverse security situation for UK nationals and logistical difficulties, UK officials are currently unable to conduct family tracing in person. On the level of assistance the FCO is able to provide to the Secretary of State, on 27 November the FCO provided the following update:
'The British Embassy in Kabul does not currently have the facility to carry out tracing of the families of unaccompanied asylum seeking children from Afghanistan.'"
She also says, under the heading "Long-term Solutions":
"34. The nature of the situation in Afghanistan is that there are few avenues for family tracing. However, the Secretary of State is currently exploring whether a viable family tracing process can be established in Afghanistan using a third party family tracing provider, to trace the families of unaccompanied asylum-seeking children on the Secretary of State's behalf in cases where other methods are not possible. Such a process may entail the contracted provider, using Afghan nationals, to travel to the last known locations of the children's families to conduct enquiries and, ideally, make contact with the families.
35. In the absence of alternatives, this option represents the only possible avenue available to the UK for establishing a formal routine family tracing process in Afghanistan in addition to the avenues detailed above. However, there are numerous complexities to be overcome for such a mechanism to be established, including capacity, personnel security and cost."
- Ms Elliott's statement does put a little more flesh on the bones of what is said in the refusal letter and confirms the impression that the Secretary of State was at (broadly) the material time considering doing more than she had done in the past in relation to tracing the families of Afghan UASCs. I should also note in this connection that we were shown an "interim guidance" document on family tracing issued by UKBA following the decision in KA (though it is not directed specifically at Afghanistan) and a later Home Office document dated July 2013 and entitled "Afghanistan Bulletin: Background Information for Family-Tracing of Unaccompanied Asylum-Seeking Children". But these are too late to be evidence of the Secretary of State's approach in early 2012.
- In the light of the letter to the Appellant of 19 February 2012 offering UKBA's assistance in tracing his family and what is said in the refusal letter, supplemented by the statement of Ms Elliott, I do not think it would be right to treat the finding of "systemic and deliberate breach" made in KA as directly applicable in the present case. The basis of the earlier finding was that the Secretary of State had apparently taken the view that the reg. 6 duty simply did not apply, or in any event did not need to be complied with, in cases where she gave discretionary leave to remain. That was not, on the evidence, her approach by early 2012, when she had evidently appreciated the implications of DS. But it does not follow that she was not in breach of the duty nevertheless. Mr Knafler put his case in two ways, which I consider in turn.
- His first submission was that there remained a "systemic" non-compliance with the reg. 6 duty, albeit not in quite the same sense as was found in KA. He contended that the Secretary of State could and should have put in place prior to 2012 arrangements in Afghanistan of broadly the kind which Ms Elliott says that she is now, belatedly, considering. Such arrangements would have enabled UKBA to undertake effective family tracing, using either remote means or personal tracing as appropriate, in the case of the Appellant and others in his position. He relied on Mr Foxley's report, and in particular on the following passages:
(1) At paras. 12-14 Mr Foxley says that there is no reason in principle why the British Embassy in Kabul, if properly resourced, could not take responsibility for tracing the families of Afghan UASCs. He points out that the Embassy is already large, that it has very extensive local contacts and knowledge and many highly skilled staff. He says that this responsibility is undertaken by other UK embassies in troubled areas. (In that connection I note that the UKBA tracing pro forma requires the applicant to consent to the information being passed to the FCO "in order to attempt to locate my family members through overseas British Embassies
(2) At para. 15 he says that even if the Embassy were not used other third-party agencies could be, such as NGOs (of which he says there are a large number operating in Afghanistan), the Afghan national/or local government and the Afghan police.
(3) At para. 22 he says that other EU countries conduct family tracing in Afghanistan, though he says that this is done "on a very ad hoc, case by case basis, with great variation in practice (and success)" and that the main service provided is that of the Red Cross. At para. 27 he says that there would be advantages in EU countries pooling their experience and resources.
(4) His conclusion, at para. 29, is as follows:
"In essence, I do not feel the UKBA's apparently blanket assertion that it is "currently unable to" trace families in Afghanistan is a sustainable argument. It would be helpful to hear their reasons for this position. I believe large areas of Afghanistan could allow case by case tracing to be done. Tracing families can be done indeed, it is being done. There are of course obstacles to operating in a country like Afghanistan, but there are also extensive resources and experienced people on the ground who could advise or assist. There are many options for doing this. The British Embassy in Kabul would be a resource par excellence. Government to government EU/UKBA/FCO/Afghan government collaboration would probably offer the most viable, sustainable and cost-effective solution. My opinion, in the absence of explanation from UKBA, is that it is not so much "can't trace" as "won't trace". "
- Strictly speaking, a failure to put in place arrangements of this kind would not itself be a breach of the reg. 6 duty. The actual duty arises only in relation to individual UASCs as their claims for asylum are made. But if and to the extent that the Secretary of State attributed an omission to take steps to trace the family of an individual applicant to the absence of facilities or arrangements that she could and should have previously put in place that failure would obviously be highly relevant to, if not determinative of, the issue of breach. I address Mr Knafler's point on that basis.
- On the material before us there is some force in Mr Knafler's submissions. Mr Foxley's report, though it is expressed in fairly general terms, does present a prima facie case that the Embassy in Kabul could perform an effective role in tracing the families of Afghan UASCs and/or co-ordinating or assisting the performance of that task by others; and that it could have been performing that role by 2012. There may be good reasons why that has not been attempted to date; but the only relevant material before the court were the references in paragraphs 3.9.11, 3.9.13 and 3.10.9 of the Secretary of State's Operational Guidance Note and Ms Elliott's bald reference (not in fact adduced by the Secretary of State) to "the adverse security situation" and "logistical difficulties". It is easy to accept that both factors are important, but it is not self-evident that they preclude any relevant "presence" in Afghanistan at all or why arrangements of the kind now apparently under consideration were not considered some time ago.
- I am, however, unwilling to make a definitive finding that the Secretary of State has been in breach of duty in this respect. For reasons which will appear below I do not believe that it is necessary to do so in order to decide this appeal. The decision about whether to make arrangements to provide a relevant service in Afghanistan, and if so of what kind, through the Embassy or otherwise, involves considerations not only of security and logistics but also the allocation of resources. It would also involve the relationship of the UK and Afghan governments. These are sensitive matters, in which the Secretary of State must necessarily enjoy a wide margin of appreciation. I am reluctant to consider them in this Court in a case where there has been no relevant evidence or consideration at the fact finding stage. Although the Secretary of State has not objected to the introduction of Mr Foxley's report, the fact remains that it was not before either of the Tribunals below.
- I turn to Mr Knafler's alternative submission on breach. He says that, irrespective of any systemic breach of the kind discussed above, the steps that the Secretary of State took in the present case were plainly inadequate. In the first place, UKBA did not start the formal tracing process until the day before the decision was taken to refuse asylum, which meant that it could not be integrated with the decision-making process as was held to be necessary in HK (see para. 9 above). But in any event there were specific steps that UKBA could have taken but did not. In particular:
(1) It could have asked more searching questions, whether in the interviews which it conducted or on the tracing pro forma, in order to obtain information which might have made it possible for the Appellant's family members to be contacted. It appears from both Ms Elliott's evidence and the bulletin referred to at para. 33 above that mobile phone use is widespread in Afghanistan. The Appellant should have been asked not simply for his mother's phone number but for the names of any other family member or third parties in Baghak or Jokan, such as a village elder, who might be contactable by phone: even if he did not have a number the name might have been enough, with a little research, to enable contact to be made.
(2) Attempts could have been made, probably with the assistance of the Embassy in Kabul (even in the absence of any general arrangements of the kind discussed above), to contact a village elder in Baghak or Jokan who might know where the Appellant's mother and grandfather were and arrange contact with them. Mr Knafler pointed out that "contacting the family via a village elder following assistance from the relevant British Embassy" is one of the examples of steps that can be taken in fulfilment of the tracing duty in the interim guidance document referred to at para. 33 above.
(3) An approach could have been made, again with the help of the Embassy, to the police or security authorities at district or provincial level. Mr Knafler submitted that if the Appellant's father were indeed a local Taliban commander who had recently been killed, those authorities would certainly know. If they confirmed the Appellant's account, that would be conclusive corroboration of the account on which his asylum claim was based; and if they did not it would be seriously undermined. Mr Knafler said that in his oral submissions that this was his best point.
- Mr Knafler is plainly right that the Secretary of State was in breach of reg. 6 in not initiating the tracing process as soon as possible after the Appellant made his claim; and the breach is the more substantial because of her failure to do so before reaching her decision on that claim. At para. 84 of the refusal letter UKBA seeks to excuse the fact that a decision is being made before the tracing process has begun by saying that it was important to bring to an end the uncertainty caused by the five months' delay. But that does not explain why the process had not begun earlier. I suspect that while UKBA had digested the message of DS that the tracing duty could not be ignored it may not have appreciated the interaction between that duty and the making of the asylum decision, which did not indeed fully emerge until the decision in HK. If it had appreciated the need to start the tracing process sooner I can see no reason why gathering the information necessary to get it started could not have formed part of the formal asylum interview: there would be a good deal of overlap in any event. (I note that the UKBA pro forma has a line for signature "in the presence of [an] Immigration Officer", so it may indeed be that the usual practice, albeit not followed in this case, was that the form would be completed as part of an interview.) If that had occurred, follow-up or other questions could have been asked. I do not see much wrong with the basic questions on the form, but in a case where they yield as little information as they did in this case I would expect an immigration officer to probe rather further. I agree with Mr Knafler that questions could and should have been asked about whether the Appellant's grandfather had a mobile phone or whether there were third parties (such as village elders) who did, and through whom he might be contacted.
- I therefore accept Mr Knafler's submission that the Secretary of State was in breach of the tracing duty in failing to start the process in good time and to integrate it with the process of deciding the Appellant's asylum claim. I also accept that if UKBA had taken this course there were at least some further questions that could and should have been asked beyond those included on the UKBA tracing pro forma. I do not, however, accept Mr Knafler's submission that the Secretary of State was obliged to take the steps identified at (2) and (3) under para. 39 above. I take them in turn.
- As to (2) the "village elder" route if all that is being suggested is an attempt at "remote" contact, most obviously by telephone, this adds nothing to the first point. But if the submission is that UKBA should have arranged for someone whether an embassy official or someone from an NGO to visit Baghak or Jokan and make enquiries, I would not be prepared to accept that submission without the clearest and most explicit evidence that such a course was practicable (even assuming that it was otherwise a worthwhile exercise and a sensible use of resources). There is no such evidence. The interim guidance on which Mr Knafler relies makes no distinction between remote and direct contact and in any event it is not concerned specifically with Afghanistan. The issue was not explored below; but in fact the evidence which Mr Knafler has adduced before us tends clearly to show that it would be unreasonable to expect any representative of the UK government to visit Nangarhar province to make enquiries of this kind. Ms Elliott describes the difficulties of direct tracing in Afghanistan at paras. 26-31 of her witness statement, concluding:
"Employing a local agent to visit a child's village/town to conduct further enquiries is both risky for the individual concerned, and costly. Such enquiries could only ever be undertaken, if at all, on the basis of sufficient and accurate information. The absence of reliable government records on the Afghan population makes this a difficult option."
That is entirely plausible. Mr Foxley addresses "safety issues" at paras. 16-21 of his report. He accepts that insofar as the Secretary of State relies on security grounds a refusal to trace may be "acceptable" in areas where the Taliban are active, which he accepts includes the eastern part of Afghanistan including Nangarhar. He says at para. 18 that in relation to such areas "it is unlikely to be able to guarantee a risk-free trip for the next 5-10 years", even though there are ways in which the risk might be mitigated. On the basis of this evidence I do not believe that, quite apart from any resource or proportionality considerations, the Secretary of State could possibly be held to be in breach of her duty by not seeking to arrange for embassy staff or third parties to visit Nangarhar in order to try to trace the Appellant's family.
- As to (3) making enquiries with the Afghan security authorities about the Appellant's father there is a preliminary point which I need to address. The reason why the enquiries in question are said to be necessary is not so as to assist in tracing the Appellant's family in order to try to effect family reunification, but rather so as to obtain evidence which might corroborate the account on which he based his claim for asylum. In my view it is clear that that is not part of the purpose of the tracing duty under reg. 6. When this objection was put to Mr Knafler in the course of his oral submissions he acknowledged it; but he said that on this particular point his case depended not so much on reg. 6 as on section 55 of the 2009 Act. He pointed out that in HK the two duties were treated as overlapping. He relied in particular on para. 40 of the judgment of Elias LJ to which I have already referred (see para. 10 above) where he says:
"In my judgment it is a necessary part of the section 55 duty to give primary consideration to the interests of the children that the Secretary of State should obtain as much information as is reasonably possible to assist her in determining where those best interests lie."
He disavowed any submission that the effect of section 55 was that in every case of an asylum claim by a child the Secretary of State must carry out her own enquiries in order to test the truth of the child's account; and he accepted that the burden of proof remains on the applicant as indeed Elias LJ makes clear earlier in the same judgment (see para. 34). But he said that there was nevertheless in some cases a duty on her to be proactive in obtaining information, and that this was such a case.
- I need not dispute the proposition that there may be cases where her duty under section 55 of the 2009 Act requires the Secretary of State herself to seek out information relevant to an immigration claim by a child. But there is clear recent authority that such cases will be rare: see SS (Nigeria) v Secretary of State for the Home Department  EWCA 550, per Laws LJ at para. 35 and Mann J at para. 62. The passage from the judgment of Elias LJ in HK on which Mr Knafler relies is directed to a specific issue, namely whether the duty under reg. 6 is irrelevant to the determination of an asylum claim, and is plainly not intended as enunciating a general duty on the Secretary of State to make her own investigations.
- I see nothing about the present case to suggest that the Secretary of State's duty under section 55 required her, exceptionally, to make her own enquiries directed to establishing the reliability of the Appellant's account. But in any event I would not be prepared to hold that she was under a duty to make the enquiries suggested without clear and authoritative evidence about the practicability and indeed the desirability of an approach to the Afghan police or security forces of the kind suggested. Such a course would on any view not be straightforward: it could not simply be a matter of picking up the phone. Any enquiry would have to be made through normal diplomatic channels, i.e. by the Embassy to the appropriate Ministry in Kabul: I am not prepared to assume without evidence that such an approach was likely to be productive or that any product would be useful or reliable. There is also the question of repercussions for the Appellant's family. This is recognised as potentially an important consideration in reg. 6 itself see para. (2); and it is plainly so in the particular case of Afghanistan. As Ms Elliott says (see para. 32 above), enquiries of this kind are sensitive. It is not difficult to see how a request for confirmation from the authorities that the Appellant's father was a Taliban activist might have very unwelcome consequences for his surviving family (and indeed for his father if, as the Judge found, he remains alive and well in Baghak). There is no evidence on any of these points. They were not of course raised below.
(2) CONSEQUENCES OF BREACH
- I have concluded above that the Secretary of State was in breach of the tracing duty in her handling of the Appellant's case by not initiating the tracing process at an earlier stage and in not asking sufficiently searching questions aimed at eliciting ways in which the Appellant's family might have been traced by "remote" means. I have also accepted, though I have made no definitive finding, that she may have been at fault in not establishing prior to 2012 arrangements involving (primarily) the Embassy in Kabul which would have facilitated family tracing in Afghanistan in a way which is not at present possible. The question then is whether those breaches or possible breaches vitiate her decision to refuse asylum. That involves a consideration of whether but for them the outcome might have been different: see paras. 10 and 11 above.
- Mr Knafler's case was that if there had been proper tracing enquiries they might have corroborated the Appellant's case as set out at para. 1 above and led to a different finding about his credibility. Even if no enquiries were made of the kind discussed at para. 43 above, it might well have been established that the Appellant's father was indeed dead and/or that the family had left Baghak, which would still have undermined the Judge's finding which I quote at para. 2.
- I should note at the outset that that way of putting it means that the Appellant's case is not quite the same as those considered in DS, HK and KA/EU. In those cases the basis of the asylum claims, at least by the time they reached this Court, was the risk that the claimants would suffer exploitation and abuse if, as minors, they were returned to Kabul and had no family to receive them: the asserted relevance of the breach of the tracing duty was that if the Secretary of State had herself tried to trace the claimants' families and failed that would be strong evidence that they would indeed be unsupported if returned. In the Appellant's case I can see no sign in the decisions of the FTT or the UT that the case was put that way. His claim seems to have been based squarely on the risk of persecution by the Taliban and/or the Afghan authorities; and, as I say, before us Mr Knafler focused on the possibility that tracing enquiries might have produced evidence corroborating that case. I have considered whether this distinction makes any difference of principle, but it seems to me that once it is established, as the earlier authorities do, that the tracing process must be treated as part of the process of deciding the asylum claim there is no rational basis for excluding, when considering the consequences of such a breach, any information that it might have elicited that could have affected the outcome of the claim, however formulated.
- Mr Knafler submitted that there was indeed a real prospect that if UKBA had asked the right questions from the start and/or if the Secretary of State had established an effective system of tracing in Afghanistan prior to 2012 information would have been obtained that would have supported the Appellant's asylum claim.
- After careful reflection I cannot accept that submission. If UKBA was to make any effective tracing enquiries, which might have produced further information, it needed sufficient details to be able to contact the Appellant's mother or grandfather, either directly or through local people who knew them. If, for the reasons which I have given, personal contact by an embassy official or other intermediary was not practicable, that means obtaining telephone numbers. In none of the information which he gave in or around the time of the asylum process did the Appellant provide UKBA with telephone numbers, or even with the names of people with telephones whose numbers could perhaps then have been obtained from some other source: see paras. 17-19, 22 and 24 above, despite an explicit question in his screening interview and further opportunities to do so thereafter. The information given reveals no opening for remote tracing. Nor, importantly, has the Appellant subsequently suggested that if he had been asked the right questions he could have given more detailed or useful information. On the contrary, in a witness statement dated 27 March 2012 made for the purpose of the hearing in the FTT he said (at para. 13):
"In response to paragraph 27 of the [refusal letter], where the Home Office say there is no reason to suggest that my family would not care for me and support me, I wish to confirm that I have no way of contacting my family. I have tried. I asked the Refugee Council to help me contact the Red Cross Tracing Service I was asked questions which I answered as fully as I could. If I can make contact with my family I would love to as I want to know how they are and I miss them."
- The effect of the Appellant's answers in interview, confirmed in his own witness statement, is thus clearly that he has given all the information that he can. It may be that he could in fact give more, and that this is a case of deliberate non-co-operation; but it is unnecessary to reach a view about that. What matters is that he has not shown that UKBA might have obtained any further useful information, whatever questions were asked or whatever tracing procedures were in place in Afghanistan. Accordingly he has not shown that such breaches as occurred had any material effect on the decision either of the Secretary of State or the FTT.
- I have reached that conclusion without having any regard to the point made by Sir Stanley Burnton in the passage from his judgment in EU which I quote at para. 11 above. However, that point does add some support to my view. It is part of the Appellant's own case that his family arranged for him to leave Afghanistan and come to the UK, at no doubt considerable cost; and they are very unlikely to want him to be returned. Even if it were possible to contact any member of his family they would have had a strong incentive to support his account of persecution even if it was untrue (and also to say that they were unwilling or unable to look after him if he were returned), and any corroboration that they gave would thus be of very doubtful value.
- In view of the conclusion which I have reached on the earlier questions this issue does not arise. The effect of the Rashid/S line of authority is not straightforward, and in circumstances where I need not deal with it I prefer not to.
- I would dismiss this appeal.
Lord Justice Beatson:
- I agree.
Lord Justice McFarlane
- I also agree.