RS (Afghanistan) v The Secretary of State for the Home Department

This is the appeal of RS, a young Afghan male born on 5 June 1992, from the determination of Senior Immigration Judge Grubb dated 14 October 2010 dismissing his appeal against the refusal of the Secretary of State to vary his leave to remain so as to enable him to remain in this country. At the conclusion of the submissions on behalf of the appellant, we dismissed his appeal and stated that our reasons would be given in writing subsequently. These are my reasons for dismissing the appeal.

The relevant facts may be stated quite shortly. The appellant arrived in the United Kingdom illegally on 12 July 2008. He was detained by the police and claimed asylum. On 14 January 2009, the Secretary of State refused his application for asylum but, as he was an unaccompanied child, he was granted discretionary leave to remain in the United Kingdom until 5 December 2009, when he would be 17½ years old. On 2 December 2009, he made an application for an extension of that leave on the basis of his continued fear that he would suffer persecution or serious ill-treatment if returned to Afghanistan. On 14 January 2010 the Secretary of State refused to vary the appellant’s leave to remain for reasons set out in the refusal letter of that date.

The appellant appealed. In a determination dated 10 March 2010 the First-tier Tribunal dismissed his appeal. He sought permission to appeal on the ground that the judge had erred in law in not granting an adjournment in order for the appellant, then a minor, to obtain legal representation, public funding having been agreed in principle. On 10 May 2010, Senior Immigration Judge Spencer granted permission on that ground. On 15 July 2010, SIJ Spencer decided, without a hearing, to set aside the decision of the First-tier Tribunal and directed that the Upper Tribunal should remake the decision. The appellant’s appeal was heard by SIJ Grubb.

Since his arrival in 2008, the appellant has lived in Gloucester, in the care of Gloucestershire social services. He attended school in Gloucester, and was regarded as a hard-working student. He formed a very close relationship with his English teacher, Mrs Lange, and her children. She had wished to adopt him, but did not do so because of his age: by the time an adoption could be effected he would be over 18. The Senior Immigration Judge accepted that the appellant had a close relationship with Mrs Lange and with her family and that his private life in the UK was strong.

The Senior Immigration Judge decided that the appellant was not entitled to humanitarian protection in the United Kingdom and that his return to Afghanistan would not place the United Kingdom in breach of its obligations under the Refugee Convention or under Articles 2, 3 or 5 of the European Convention on Human Rights. If returned to Kabul, there would be no real risk of serious harm within the terms of article 15(c) of the Qualification Directive. It would not be unduly harsh or unreasonable for him to be returned to live in Kabul instead of his home area of Kandahar. Although the appellant’s rights under article 8 would be interfered with if he were returned to Afghanistan, the interference was lawful and proportionate in the exercise of immigration policy and therefore no breach of Article 8 had been established. Accordingly the interference did not justify the appellant being allowed to remain in this country.

The first and principal ground of appeal is that the Upper Tribunal erred in treating the Appellant’s adulthood as a “bright line” in the assessment of risk.

The second ground of appeal is that the Upper Tribunal failed to address the unfairness suffered by the appellant through (1) the failure of the Secretary of State to comply with her duty under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace his family; and (2) resulting from the loss of the opportunity to have his claim determined on a lawful basis whilst he was a child.

The Respondent contends that neither of these grounds is well-founded.

In my judgment, the Senior Immigration Judge did not treat the appellant’s majority as a bright line in his assessment. He considered the evidence as to the personality, capabilities, and personal relationships and life of the appellant, who gave evidence before him, in the round. Mr Hussain criticised paragraph 27 of the determination, which is as follows:

“27.

I will deal more fully with the appellant’s circumstances if he were returned to Kabul shortly when dealing with Article 8. Suffice it to say here, I adopt my findings there. The appellant is an adult aged 18 years of age. His account of fearing persecution, was rejected by the Secretary of State, and is not now pursued in this appeal as a basis for international protection. There is no evidence that the appellant is other than a healthy young adult. Whilst there is no evidence that he has any family or friends in Kabul, as I will deal with shortly, there are support mechanisms available for returnees to Kabul. He has been to school in the UK and the evidence is that he has made progress (see below). He has learned and acquired life skills during his time in the UK and, albeit living with a friend, has enjoyed a life of some independence in the UK… On the evidence before me, I am satisfied that… it would not be unreasonable or unduly harsh in all the circumstances to expect the appellant to live in Kabul.”

This paragraph does not disclose any bright line between childhood and adulthood. In any event, however, the Senior Immigration Judge clearly took into consideration those parts of his determination that dealt with Article 8 and circumstances in Kabul. I refer to paragraph 60 of his determination:

“60.

Whilst Mr Short (the appellant’s Leaving Care Worker) expressed a view that the appellant may not be of adult maturity he is nevertheless an adult and has lived in the UK not requiring fostering. He has lived independently, albeit with his friend Ali. He has acquired skills and knowledge and no doubt confidence during his 2 years of schooling in the UK.”

In other words, the Senior Immigration Judge accepted that the appellant might not be of adult maturity. Clearly, therefore, he drew no bright line.

There are a number of reasons why I cannot accept the Appellant’s submissions under this head.

In the first place, neither of the points now being made was taken before the Senior Immigration Judge. He therefore did not consider what, if any, were the consequences of the Secretary of State’s failure to seek to trace the family of the appellant. Similarly, he did not consider what the practical consequences might have been of the failure of the First-tier Tribunal to adjourn the hearing before it so as to enable the appellant to be legally represented. In my judgment, for this reason alone, it would be wrong to allow the appeal on this ground.

Secondly, we have nothing before us to support the suggestion that any prejudice was suffered by the appellant as result of the Secretary of State’s failure comply with the duty to trace. The Senior Immigration Judge made his determination on the basis that the appellant had no family in Kabul: see paragraph 61 of his determination. If the Home Secretary had successfully traced family of the appellant in Kabul, that would have weakened his claim to remain in this country. Conversely, if the Home Secretary had endeavoured, but failed, to trace any family this would have resulted in the appellant being in the same position as he was before the Senior Immigration Judge.

Moreover, in my judgment, the Tribunal should not speculate about the consequences of a failure to seek to trace without appropriate evidence before it. There was none in this case.

Thirdly, the appellant seeks to elevate the significance of the error of the First-tier Tribunal by calling it “historic”. The error of the First-tier Tribunal was no more than a regrettable but unexceptional incident of litigation: an error of law made by the Tribunal. The duty of the Tribunal is to determine the appeal before it on the facts and circumstances as they are at the date of the hearing (assuming there is no significant change between the date of the hearing and the determination). Saving highly exceptional cases, I can see no basis for the Upper Tribunal having to consider, on a speculative basis, what might have occurred if a different decision had been made at an earlier stage.

Lastly, the delay in the effective tribunal determination of his appeal was to the advantage of the appellant. It meant that he had a longer time to develop his personal life in the UK. It may even have had the result that, having been in this country for more than 6 years, the Secretary of State may now grant him leave to remain under her discretionary policy. I do not see how a tribunal can be required to weigh the benefit to the appellant of the delay in the determination of his appeal as against what might have occurred had his appeal been lawfully determined by the First-tier Tribunal.

The Senior Immigration Judge’s determination was comprehensive, and demonstrated his careful consideration of the appellant’s case. It disclosed no legal error. The appeal against his determination had to be dismissed.

I agree.

I also agree.