AA (Afghanistan), R (on the application of) v Secretary of State for the Home Department

This has been a somewhat elusive case, because the grounds to some extent shifted as the proceedings have gone on. The appellant appeals, and the Secretary of State cross-appeals, against different aspects of the judgment of HHJ Seys Llewellyn QC given in the Administrative Court sitting at Cardiff on 22 December 2011. The appellant says that the judge should have held that he was entitled to refugee status and five years’ leave to remain in the United Kingdom. The Secretary of State says the judge should not have directed her to grant three years’ discretionary leave to remain to the appellant. This is one of a number of cases in which the claimant was a minor when he arrived in the United Kingdom and claimed asylum, but over 18 when the material decision of the Secretary of State was arrived at. Sir Richard Buxton granted permission to appeal for both the appeal and the cross-appeal, the former on 12 March 2012 and the latter on 22 May 2012. Permission on the cross-appeal was in limited terms.

The appellant is an Afghani national. There have been issues concerning the ascertainment of his correct age, but it is now common ground that his date of birth was 1 February 1993. He arrived in the United Kingdom on 8 October 2008 and claimed asylum, telling the immigration authorities that he was a minor. The next day, he was assessed by the Hampshire County Council at Aldershot as being over 19. An initial screening interview was carried out on 10 October 2008. He absconded. His asylum claim was refused on 6 November 2008, and he lodged an appeal on 3 December 2009, after having apparently reported to the Home Office on legal advice. On 1 March 2010 the first tier tribunal dismissed his appeal, at which he was unrepresented, holding that he was an adult. The tribunal comprehensively rejected his asylum claim on the merits, declaring at paragraph 51 that the account he had given:

“... lacks credibility, and is a fabrication designed to gain access to the United Kingdom.”

I should make it clear, however, that Mr Manjit Gill QC for the appellant gives no less than five reasons why this determination should be ignored. It is certainly the case that the protections required for a child or minor were not afforded.

On 6 August 2010, having carried out a detailed assessment, the Cardiff City Council informed the appellant’s solicitors and the UKBA that they had concluded that the appellant’s date of birth was probably 1 February 1993. That was accepted by the Secretary of State on 19 August 2010. There followed a good deal of correspondence in which the appellant’s solicitors were pressing for his asylum claim to be reconsidered on the ground that he was a minor, a course which the Secretary of State seems to have been content with in submitting a draft consent order to a prospective judicial review. There is, moreover, an email from the Treasury Solicitor of 11 January 2011 saying:

“I am told that your client’s case will be considered afresh, and arrangements are being made for his asylum interview.”

However, on 8 February 2011, seven days after the appellant’s 18^th birthday, the UKBA wrote to the appellant’s solicitors stating:

“Mr [A]’s claim was fully considered by both the UK Border Agency and by the Immigration and Asylum Chamber. I can confirm that your client’s claim will not be reconsidered.”

This is the decision under challenge. It was written in response to a request that the Secretary of State should confirm her acceptance of an application for a fresh claim. The decision was fleshed out somewhat by a further letter of 22 February 2011, which stated:

“The UKBA accepts that on the basis of the age assessment, your client was a minor at the time of his asylum interview. In such cases, the UKBA’s publicly-available guidance on assessing age requires the UKBA to review the original decision, and if appropriate grant discretionary leave under the UASC policy. In line with that guidance, the UKBA has reviewed the decision made in respect of your client, and has found that he is not eligible for a grant of discretionary leave under UASC policy, since he is no longer a minor. The original asylum claim has thus been maintained, and your client will not be re-interviewed.”

I should say that the acronym UASC stands for “Unaccompanied Asylum-Seeking Child”.

Mr Manjit Gill QC on this appeal has sought to argue that the appellant has been wronged, because once it was appreciated that he was a minor and not an adult, as it was from 19 August 2010 onwards, his case should have been decided before his 18^th birthday on 1 February 2011. Had that been done he would, says Mr Gill, have been entitled to refugee status and leave to remain for five years. In order to redress the wrong, he should now receive no less. It is said that a young person in respect of whom no enquiries to trace family members have been made pursuant to the Asylum Seekers Reception and Conditions Regulations 2005, may be at risk of various forms of harm and thus persecution (see LQ (Afghanistan) [2008] UKIAT 005). It is further alleged that, because of what was a blanket policy of the Secretary of State, no tracing enquiries were carried out in any case between 2006 and 2010 (see KA (Afghanistan) [2012] EWCA Civ 1014, to which I will refer further).

The judge found in the appellant’s favour on a much more limited basis. He held that there was a lacuna in the Secretary of State’s policy dealing with the grant of discretionary leave to a UASC, granted on the basis of inadequate reception arrangements in his home state, because on its face the policy had no application to young persons aged between 17-and-a-half and 18. A young person under 17 and-a-half was entitled under the policy to a grant of discretionary leave for three years, or until he reached the age of 17-and-a-half, whichever was the shorter period. The judge held, though the finding is I have to say opaque, that this policy failed to give effect to section 55 of the Border, Citizenship and Immigration Act 2009 which requires the Secretary of State to make arrangements for ensuring that her functions relating to immigration, asylum or nationality are discharged “having regard to the need to safeguard and promote the welfare of children in the United Kingdom”. The judge also concluded (see paragraph 2 of his order) that a guidance document before him was itself unlawful, because it should have granted affected persons a limited leave to remain to address the disadvantage of the loss of in-country appeal rights. Reference is made on the face of the order to AA (Afghanistan) [2007] EWCA Civ 12, to which also I will refer further.

The learned judge below considered that the appellant ought to be treated as if the policy for those under 17 and-a-half applied to him, and that he should be compensated, so to speak, for the illegality inherent in it. Accordingly, he held that the appellant should be granted three years’ discretionary leave (see paragraph 31 of the judgment). This conclusion is the subject of the Secretary of State’s cross-appeal. Mr Gill’s alternative case is that the judge was right in this regard, and the appellant’s entitlement to three years’ discretionary leave to remain should be upheld.

As it seems to me, in order to make good his case on any basis the appellant has to show that if his rights were to be determined after his 18^th birthday, as happened in fact, the decision ought in law to have proceeded on the notional basis that he was in fact under that age. The essential issue in the case is whether this proposition is correct. If it is correct, the secondary issue is what should follow by way of remedy. I should say that I regard this as a generous approach, given the narrow terms of the grant of judicial review permission. That was itself the subject of energetic submissions by Mr Manjit Gill QC, and I will briefly refer to it further.

On both the appeal and the cross-appeal, Mr Gill relies heavily on the decision of this court in AA (Afghanistan), which I have mentioned. This was a statutory appeal against a determination of the Asylum and Immigration Tribunal. The appellant in that case was an asylum claimant from Afghanistan. His application was refused by the Secretary of State. On appeal the Adjudicator accepted that he was, and was still, a child then aged 17. But he dismissed the appeal, holding that the appellant would not be at risk on return. He did not, however, take into account the Secretary of State’s then policy relating to UASCs from Afghanistan, requiring such persons to be given exceptional leave until age 18 “unless there are adequate reception arrangements in place”. On appeal the AIT did have regard to the policy; but this court held that they had misinterpreted it, that the error was an error of law, and that on a correct interpretation the appellant might have had the benefit of the policy. By the time of the hearing before the AIT, the appellant had turned 18. This court held, however, that had he been granted leave until age 18 he would have enjoyed substantial benefits, in particular the right to apply to vary the leave so as to extend it with an in-country right of appeal if the extension were refused. In those circumstances the court allowed the appeal and gave relief by way of a direction to the Secretary of State to consider, in light of the court’s judgment, whether a period of leave to remain should be granted; and if so, for how long. As I have indicated in passing, AA is expressly referred to in the order of the judge below, declaring that a guidance document entitled “Guidance to SCW and STA when Dealing with Further Representations in Light of the Case of AA”. Mr Manjit Gill was at pains to make much of this.

It is thus clear, as of course one would expect, that AA in that case only obtained relief because of legal errors by the Adjudicator and the AIT against whose determination this court was entertaining an appeal. AA does not of itself, in my judgment, assist this appellant on the appeal or the cross-appeal, unless he can point to an error of law by the Secretary of State in the processes undertaken before 8 February 2011. In any event no authority is needed for the proposition that the decision under challenge here must be shown to be infected by some legal error before any question of relief arises.

So I turn to the question: is the decision of 8 February 2011 infected by any legal mistake? First, it cannot in the events which have happened be said that the Secretary of State perpetrated a legal error by failing to decide the case before the appellant was 18. The appellant was specifically refused judicial review permission to argue delay as a freestanding ground: see HHJ Llewellyn’s judgment on the permission application, paragraph 11, and paragraph 3 of his substantial judgment, which replicates the order granting judicial review permission and which I will read:

“3.

Permission in this case was granted in narrow terms, as set out in the order June 2011, namely whether ‘Where there is a corrected age assessment in line with AA (Afghanistan), the defendant’s discretionary leave policy which grants three years discretionary leave to those who do not fall within the UASC policy applies to such claims, or whether there is a lacuna in the defendant’s policy where section 55 of the 2009 Act requires a defendant to have regard to the welfare of the child where the individual is aged over 17 years and six months but under 18’.”

This reflects in terms, as I have said, the order granting permission. Mr Manjit Gill sought to submit that the scope of the permission should now be qualified.

It has emerged that between 2006 and 2010 there was a blanket policy that no tracing enquiries should be made. I have mentioned in passing the case of KA which addresses that situation, of which I will have a little more to say. I do not however for my part accept that had the terms of this policy been known by the judge in the present case, he would have considered that the delay of itself was due to bad faith or anything of the kind. As my Lord, Lord Justice Sullivan, indicated in the court of argument, the delay is certainly disturbing; but I do not think we should extend the judicial review leave.

The real question in the case is whether it might be said that even if there was no specific legal wrong in the Secretary of State’s deciding the case when she did, nevertheless in the events which happened there was a legal duty to recognise in the substance of the decision of 8 February that the appellant had lost or may have lost potential benefits by virtue of his being over 18 at the time of decision. The ordinary rule is that tribunals dealing with asylum appeals must decide the issues before them in light of the facts prevailing at the time of decision (Ravichandran [1996] Immigration Appeal Reports 97), and the Secretary of State reaching her decision will of course do the same. But circumstances may arise in which the Ravichandran approach ought in law to be departed from, or at least where the decision maker ought to fashion his or her decision so as to recognise prejudice or injustice arising from the fact that the decision is being taken at the time it is.

This has been considered in a number of authorities. In Rashid [2005] INLR 550, [2005] EWCA Civ 744, an asylum claim was refused in breach of an undisclosed policy of the Secretary of State. When the policy came to light, the claimant’s advisors requested reconsideration. But by then, the policy had lapsed. The refusal of asylum was maintained in light of current circumstances. The claimant obtained a judicial review, and this court dismissed the Secretary of State’s appeal. Pill LJ held that the degree of unfairness to the claimant was so conspicuous as to amount to an abuse of power. In S [2007] IAR 781, [2007] EWCA Civ 546, the Secretary of State had deliberately delayed dealing with a certain category of cases in order to meet targets that had been agreed with the Treasury. This was held to be legally objectionable. Carnwath LJ subjected the Rashid decision to a rigorous analysis. He expressed some reservations about the manner in which Pill LJ had deployed the concept of abuse of process in that case (see paragraph 39 of the judgment in S). Carnwath LJ thought that the Rashid decision had sought “to transform [abuse of process] into a magic ingredient able to achieve remedial results which other forms of illegality cannot match”. However he indicated (paragraph 46) that:

“It was open to the court to determine that a legally material factor in the exercise of the discretion [that is, the discretion to grant indefinite leave to remain] was the correction of injustice.”

And approached in that way, Rashid:

“...respected the principle that the Secretary of State’s decision should be made on the basis of present circumstances, but it recognised that those circumstances might include the present need to remedy injustice caused by past illegality.”

In S [2009] EWCA Civ 142, the three appellants’ asylum claims had been decided after a policy which would have favoured them had been withdrawn. Goldring LJ considered Rashid and S [2007] and other cases. He set out his conclusions, with which Arden LJ and I agreed, under eight heads. It is with respect only necessary to cite from the third, fourth and fifth. Paragraph 46:

“There can moreover be no question of intervention by the court on the basis of a generalised and unfocussed idea of fairness; or by consideration of what subsequently may have happened to the individual in question and categorised in broad terms such as prejudice, loss and detriment.

[...]

47.

Fourth, there can too be no question of the court trying to dictate to the Secretary of State how she should administer the immigration system. The court's role must be very limited.

48.

Fifth, where the Secretary of State has sufficiently had regard to that past illegality and any injustice, she will be entitled in the exercise of her discretion to refuse ILR. The court will only intervene in the extreme case, where fairness dictates that no reasonable Secretary of State could have done other than grant ILR. It follows the court will not intervene unless the decision of the Secretary of State was conspicuously unfair.”

Ravichandran and Rashid are also discussed in the recent case of KA (Afghanistan), to which I have referred twice. This court held that there had been a “systemic breach of the duty to endeavour to trace family members of UASCs, the duty imposed by Regulation 6 of the Asylum Seekers Reception Conditions Regulations 2005.” At paragraph 17, Maurice Kay LJ said this:

“Having accepted that there was a systemic breach of the duty to endeavour to trace, I now have to consider whether that may trigger the Rashid/Sprinciple. It is a complicated question and not simply a matter of the systemic breach entitling these appellants, without more ado, to the allowing of their appeals with remittal to the Secretary of State to consider grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the appellants were over 18 when their cases came before the FTT or the UT and, as a consequence and in accordance with the Ravichandranprinciple, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid/Sprinciple applies, it modifies the strict application of Ravichandran.”

Bearing in mind Carnwath LJ’s strictures relating to the Rashid decision, and Goldring LJ’s summation in S [2009] of the correct approach to the question when should the Ravichandran principle be departed from, I consider that the essence of the matter amounts to this. Where it is said that past events would make it unfair for the case in hand to be decided on the conventional Ravichandran approach, a reasonable Secretary of State may have to consider whether she should take account of those events, and in light of them decide the case in such a way as to avoid conspicuous unfairness to the claimant.

This is, in my judgment, a Wednesbury issue ([1948] 1 KB 223): would it be so unfair to proceed without regard to the factors relied on that no reasonable Secretary of State would take such a course? This must be the nature of the question, since any more intrusive approach would involve the court to an extent in the direction of immigration policy, and that would be illegitimate. I conceive this approach to be in line in Rashid as it was understood in S [2007], and with Goldring LJ’s conclusions in S [2009]. There is nothing in KA [2012] which tends to contradict it.

I turn to apply this approach to the present case. In what follows, I assume without necessarily deciding that the judge below was right to hold that there was an unlawful lacuna in the Secretary of State’s policy dealing with the grant of discretionary leave to a UASC. It is to be noted, however, that it is plain from the Home Office documents we have seen that a UASC minor aged between 17 and-a-half and 18 will not be removed by the Secretary of State. In any event, this illegality, or assumed illegality, plainly of itself cannot help the appellant unless for other reasons the decision of 8 February 2011 should have been taken on the notional footing that the appellant was under 18. Only in that event might the case have to be considered as if the policy of granting leave to the age of no more than 17 and-a-half wrongly denied the appellant the possibility of such leave. The illegality of the policy cannot itself constitute a reason for modifying the Ravichandran principle in the appellant’s case. And, so far as the judge below held otherwise, he was in my view wrong to do so. In fact, he nowhere explains why the under 17 and-a-half policy should be applied to the appellant.

Is there some other basis on which, in accordance with the legal principles I have described, the Ravichandran principle should be modified in the appellant’s case, so that the Secretary of State on 8 February 2011 should at least have considered whether the appellant was the victim of such conspicuous unfairness as to call for some remedial measure, presumably the grant of a limited leave? There are, I think, two potential candidates to be considered as factors which might produce that result. The first is the original mistake by the Hampshire County Council in the assessment of the appellant’s age. Such an assessment should be undertaken in accordance with guidelines originally given by Stanley Burnton LJ in London Borough of Merton [2003] EWHC (Admin) 1689. Mr Gill castigates the Hampshire assessment as not being “Merton-compliant”; he may well be right, though I think it perhaps notable that in parallel proceedings to these, this court ([2012] EWCA Civ 1383) has held as recently as 26 October 2012 that the Secretary of State was entitled to rely on the Hampshire assessment of the appellant’s age for the purpose of exercising his powers of detention. When Cardiff produced the revised assessment concluding that the appellant was indeed under 18, the Secretary of State accepted it promptly. The erroneous age assessment by Hampshire was not, in my judgment, a freestanding circumstance which a rational Secretary of State was bound to treat as giving rise by February 2011 to such conspicuous unfairness as to call for corrected or remedial action on her part.

The other candidate as a factor which might have required such remedial action was at the centre of Mr Gill’s submissions today. It is the fact that no endeavour to trace family members has been carried out; indeed, as I have indicated, no such enquiries were made in any case between 2006 and 2010. These were the circumstances which engaged the court’s attention in the KA case. I have already cited paragraph 17 of Maurice Kay LJ’s judgment, showing that the effect of these circumstances case-by-case is complex. He also said this:

“46.

Although we are not yet in a position to deal with the cases of these individual appellants (save for SA), it is important to emphasise that, when the principles to which I have referred come to be applied to individual cases, much will turn on their specific facts. There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of 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 Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant 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. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage. At this stage, when we have not heard oral submissions on the facts of their cases, it is inappropriate to say where on the spectrum each of these appellants lies.

47.

It is important to emphasise that the preceding paragraph uses the language of established facts and the need to establish disadvantage. Whether one is considering asylum, humanitarian protection or corrective relief, there is a burden of proof on an applicant not just to establish the failure to discharge the duty to endeavour to trace but also that he is entitled to what he is seeking. A past lack of cooperation on the part of the application may not always defeat his claim – it did not in DS or HK – but it may lead to the drawing of an adverse inference.”

Mr Manjit Gill draws attention to a concession made in counsel’s skeleton argument in the court below (paragraph 20) to the effect that if the appellant’s correct age had been known at the time of his appeal to the Adjudicator, then in the absence of tracing enquiries, his appeal would have succeeded and he would have been granted asylum. The respondent’s counsel making that concession seems not to have been aware that tracing enquiries were generally not being carried out between 2006 and 2010. However, looking at the whole case, it does not seem to me that this concession can itself drive the appeal in the appellant’s favour.

But that is by no means the end of the matter. The policy relating to UASCs addressed by the judge in the context of the argument concerning the legality of its being extended only up to the date when the claimant was 17-and-a-half is important here. One of the documents which the judge considered reads in part as follows:

“Where leave is granted to a UASC on the basis of inadequate reception arrangements in their home country, the UASC should be granted DL [discretionary leave] ... For all decisions made on or after 1^st April 2007 (where asylum/HP [that is humanitarian protection] is being refused) DL must only be granted to 17.5 years of 3 years, (or 12 months for certain countries) whichever is the shorter period of time.”

Now it is inherent in this that tracing enquiries (note the reference to “inadequate reception arrangements”) are central to the resolution of claims by a UASC. So the implication is a settled purpose by the Secretary of State to decide these cases when the child or young person is still a minor. Other policy documents show the Secretary of State’s express intention to deal with such claims before the claimant turns 18. And of course, if the Secretary of State had properly been undertaking tracing enquiries, this appellant would in his minority have had the benefit of them.

In this case, however, the appellant faces certain difficulties. On his own account it seems that his mother lived in Afghanistan, as did his uncle, who had helped him to leave for the United Kingdom (see paragraphs 10 and 12 of the FTTE decision, 1 March 2010). The tribunal also disbelieved the account or story that the appellant’s father or brother had been killed (paragraph 46), nor did it believe that the appellant did not know where his mother or maternal uncle were. The tribunal found that the appellant would have kept in touch with his mother and uncle (paragraph 47). Accordingly, it is said by Ms Chan on behalf of the Secretary of State that the overwhelming likelihood is that if tracing enquiries had been made from August 2010 onwards, the appellant would have been found to have existing close family in Afghanistan who could receive him if he were returned there.

Still, this determination was arrived at on the assumption that the appellant was over 18. Procedures for the assistance of protection of a minor were not in place. Mr Gill has submitted today that the determination is valueless. I make no such definitive judgment, but I do not consider that this court can ignore the possibility that had this appellant been dealt with before his 18^th birthday, it seems that he would at least, in the absence of tracing enquiries, have been granted a discretionary leave; and the delay in deciding the case, though not itself the subject of this judicial review, is before us entirely unexplained. It is fair to acknowledge Ms Chan’s point that had the Secretary of State or those advising her been aware that there was a live issue as to the merits of this delay, evidence would or might have been put in.

All that said, in the circumstances of the case I consider that a reasonable Secretary of State should on 8 February 2011 have considered whether a decision before the appellant’s 18^th birthday might have produced a favourable result from his point of view; and I would require her now to consider and decide whether, in light of the position as it would have been before the appellant reached the age of 18, if his case was then properly decided, any and if so what order should now be made in his favour. I by no means indicate that any such order ought to be made. However, I do not consider that any larger relief should be granted. I do not think that the judge was entitled to order that the appellant should have three years’ indefinite leave to remain, and that is so even though his declaration at paragraph 2 of the order, including the reference to the AA case in the Secretary of State’s guidance, remains strictly undisturbed on the cross-appeal.

Mr Gill would go a great deal further. He submits that this court should require the Secretary of State to grant asylum, and five years’ leave to remain. However, this position rests on the premise that a minor asylum claimant, for whom unlawfully no tracing enquiries were made, would be entitled to asylum. The argument is that the Secretary of State or this court should now approach the case on the footing that the policy of not instituting tracing enquiries should notionally be regarded as still effective for deciding what is the appropriate relief to be granted to this appellant. But this is to advocate, in effect, the perpetration of an illegality; and I would not contemplate taking such a course.

I should note that the appellant also relies on materials which show, as one might reasonably suppose, that the special risks of exploitation and the like to which young persons may be prone in certain countries do not abruptly come to an end on the subject’s 18^th birthday. But this cannot constitute a circumstance itself requiring or justifying a modification of the Ravichandran principle in the events which have happened here.

I indicated earlier that the essential issue in this case is whether the appellant has shown that if, as happened in fact, his rights were to be determined after his 18^th birthday, the decision ought in law to have proceeded on a notional basis that he was in fact under that age. In light of the materials I have discussed, this can be seen as another way of putting the question: should the Ravichandran principle be modified on the facts of this case? For the reasons I have given, I consider that the answer is in the affirmative. I would, for my part, allow the appeal; quash the decision of 8 February 2011; and declare that the Secretary of State is obliged to consider whether, in light of the position as it ought to have been if the case had been decided before the appellant reached 18, some order should now be made in his favour. I by no means indicate that such an order must be made. I would also allow the cross-appeal. The Secretary of State does not have permission to appeal the order of the judge quashing the policy (paragraph 2 of the order to which I have referred), but that would only have specific effects here if it were established that the applicant had been the victim of a distinct legal wrong during his minority. However, the judge was not entitled to direct that the appellant have three years’ leave, and I have given the reasons for my conclusion to that effect.

I would accordingly allow the appeal and the cross-appeal, and give relief to the effect I have described. If my Lords agree, it may be necessary to hear counsel further as to the precise form of order.

I agree.

I also agree.