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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> MA and AA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40 (24 June 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/40.html Cite as: [2015] WLR 3083, [2015] 4 All ER 34, [2015] 1 WLR 3083, [2015] WLR(D) 272, [2015] UKSC 40, [2015] Imm AR 1162, [2015] INLR 647 |
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Trinity Term
[2015] UKSC 40
On appeal from: [2013] EWCA Civ 1609 and [2013] EWCA Civ 1625
TN and MA (Afghanistan) (Appellants) v Secretary of State for the Home Department (Respondent)
AA (Afghanistan) (Appellant) v Secretary of State for the Home Department (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Hughes
Lord Toulson
JUDGMENT GIVEN ON
Heard on 2 and 3 March 2015
Appellants (TN & MA) Becket Bedford Zane Malik (Instructed by Sultan Lloyd Solicitors) |
Respondent Jonathan Hall QC David Blundell (Instructed by Government Legal Department) |
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Appellant (AA) Stephen Knafler QC Anthony Vaughan (Instructed by ![]() |
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Intervener (The Office of the Children's Commissioner – Written Submissions Only) Nadine Finch (Instructed by Freshfields Bruckhaus Deringer LLP) |
LORD TOULSON: (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agree)
Background
"(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."
(Section 82 was substantially amended and section 83 was repealed by section 15 of the Immigration Act 2014, which came into force, subject to various savings, on 20 October 2014.)
"In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children. …
Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree."
"Discretionary Leave under UASC Policy
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.
Where:-
the child does not qualify for asylum or HP [humanitarian protection] or otherwise under the general DL policy, and;
we are 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 DL for three years or, with effect from 1 April 2007, until they are 17.5 years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN)."
Paragraph 17.8 states:
"Best interests and duty under section 55 of the Borders, Citizenship and Immigration Act 2009.
The availability of safe and adequate reception arrangements is only one factor to consider in deciding on whether the person should be granted Discretionary Leave under the UASC policy. Full account also needs to be given to the following:
the best interests of the child must be taken into account as a primary consideration in the decision; and
the duty to have regard to the need to safeguard and promote the welfare of the child in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 and the statutory guidance that accompanies it ("Every Child Matters" …).
…
The best interests of a child, whilst a primary consideration, is not the sole consideration when considering whether a child should be granted leave to remain or return to the country of origin. Other factors, including the need to control immigration, are also relevant.
In some cases, it may be reasonably clear that the child's best interests may be served by returning to the country of origin – for example where the family has been traced and it is clear that the return arrangements can be made direct to parents.
In other cases, the decision on whether to return will be a matter of making a careful assessment of the child's best interests and balancing those interests against the wider public interest of controlling immigration."
"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety."
The importance of the second sentence cannot be overstressed. Recognising the potential delicacy and sensitivity of the problem, article 19.4 provides:
"Those working with unaccompanied minors shall have had or receive appropriate training concerning their needs, and shall be bound by the confidentiality principle as defined in the national law, in relation to any information they obtain in the course of their work."
"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."
Regulation 6(2) provides:
"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."
Facts
Compatibility of section 83 of NIAA with article 39 of the Procedures Directive
"31. I do not consider that the short delay before claimants such as these would be able to appeal against an adverse decision by the Secretary of State made after their eighteenth birthday means that the totality of the remedy they have is not 'an effective remedy' within article 39. As was stated in Samba Diouf v Ministre du Travail, de l'Emploi et de l'Immigration (Case C-69/10) [2012] 1 CMLR 8], the Procedures Directive lays down minimum standards. Article 39 requires Member States to ensure that applicants have the right to 'an effective remedy', not that they should have the most effective remedy. The suggestion that a delayed remedy by way of appeal would not, in principle, suffice because … it would not necessarily be as effective as an immediate one would have been appears to require a higher threshold than 'an effective remedy'.
32. I also consider that to regard the right of appeal after the short delay envisaged in cases such as these as inadequate and not an 'effective remedy' could undermine the legislative decision to restrict the right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 to those who have been given leave to enter for more than 12 months. That policy was not criticised by this court in FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545. It serves the useful purpose of helping to avoid duplication between decision-making at first instance and on appeal in cases in which the Secretary of State will be reconsidering a person's position in the near future.
33. It may be the case that delaying an appeal until after a person's eighteenth birthday would mean that it would not be necessary for the best interests of that person as a child to be a primary consideration in the decision-making process pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. But such applicants will, in the light of KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615, be treated as young people and their whole history will be considered. I am concerned that to regard the fact that an immediate appeal would be an appeal by a child whereas an appeal within what would otherwise be a reasonable period would be an appeal by a young adult as a reason for finding the remedy to be inadequate and not an effective remedy under article 39 would be undesirable from a policy point of view."
"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."
A denial of refugee status to an applicant does not, as such, concern a right or freedom guaranteed under the European Convention (A v Netherlands (2014) 59 EHRR 33), and in relation the law of the Union the argument under article 47 adds nothing to the argument under the Procedures Directive.
Family tracing: the issues
"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 … 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 UK Border Agency in the present case. All that was done was to draw to the attention of the applicant or his foster carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. … It seems to me that 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."
"At one end is a claimant who gives a credible and cooperative account of having no surviving family in Afghanistan or having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case the Ravichandran principle would not be an insurmountable obstacle."
"At the other end of the spectrum is a claimant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection."
"I have to say that, like the Court of Appeal in S, I have great difficulties with the judgments in Rashid. In cases that are concerned with claims for asylum, the purpose of the grant of leave is to grant protection to someone who would be at risk, or whose Convention rights would be infringed, if he or she was returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such as a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as "the protective principle", but this is a misnomer: the person relying on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the court's displeasure at her conduct, or as a sanction for her misconduct."
"82. In light of 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 that there is no presence in Afghanistan that would currently be able to assist in conducting family tracing in Afghanistan."
i) the tracing duty was an integral part of the decision making process;
ii) the Court of Appeal was wrong to find in each case that the breach of duty was immaterial on the facts;
iii) the tribunal ought to have made a presumption of credibility in each appellant's favour;
iv) the tribunal and Court of Appeal ought not to have followed Ravichandran but, applying Rashid, ought to have held that each appellant was entitled to asylum or unconditional leave.
i) the respondent is under a duty to assess the child's best interests before seeking to discharge any of her obligations, including the tracing obligation;
ii) the methods used in fulfilling the tracing obligation must take into account the child's wishes and feelings and the need for the child to give informed consent to any family tracing process;
iii) no adverse credibility finding should be reached without an assessment of the child's ability to provide information or further information for the purposes of family tracing;
iv) the best interests assessment and the family tracing process should be regarded as a necessary part of the search for a durable solution for the child based on his or her own individual circumstances;
v) if an unaccompanied minor becomes 18 before a final decision on his or her appeal, the duty to trace is still a component of the search for a durable solution, that is, one which will last beyond their 18th birthday.
Analysis