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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

13 MAR 2014

AA (Afghanistan) v The Secretary of State for the Home Department [2013] EWCA Civ 1625

Although the Secretary of State had failed to comply with her duty to trace the Appellant's family, the Court held that there was no basis for a successful challenge to the subsequent asylum decision. The evidence that would likely have arisen had the duty been complied with would not have added anything further to the asylum claim.

11 December 2013

Court of Appeal

McFarlane, Beatson and Underhill LJJ

(1)       The Appellant, a national of Afghanistan, claimed asylum on 13 October 2011. His application was refused on 20 February 2012, but leave to remain was granted for until the Appellant reached 17½ years of age. Appeals to the First-tier Tribunal and Upper Tribunal were subsequently dismissed. Those appeals mentioned, but did not centre on, an alleged breach of the Secretary of State's duty to trace the Appellant's family. This argument was more heavily relied upon in this appeal.

(2)       The duty to trace a minor's family arises from Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. In the Appellant's initial screening and asylum interviews, he had indicated that his remaining family lived in a small mountain village many hours from anywhere else. It also appeared that the Appellant had made use of the Red Cross tracing service, but had not provided information beyond his name and the location of his village.

(3)       The Appellant's case was that:

(a)       The Secretary of State breached her tracing duty by failing to take steps trace his family;

(b)       The failure to trace his family caused his asylum case to be refused; 

(c)       The only appropriate remedy was for his asylum claim to be allowed (pursuant to R (Rashid) v Secretary of State for the Home Department [2005] Imm AR 608 ([2005]) EWCA Civ 744) and R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546).

(4)       HELD: The Court acknowledged that the Secretary of State had failed to particularise how she had fulfilled her tracing duty and, as such, those decisions were flawed. Nonetheless, the Court would only allow the appeal if the case based on the breach of the duty was held to be ‘well-founded' or remittal was required for further consideration of the case.

(5)       The Court held the evidence showed that the tracing process had not been begun as soon as possible, as was required by Regulation 6. There were also questions that ought to have been asked about whether the Appellant had relatives who had mobile telephones, or if there were third parties through whom his family could be contacted.

(6)       The Court was not willing to simply assume that had enquiries been made the result would have been useful or reliable. The Appellant's own case was that his family arranged for him to leave Afghanistan, and would be unlikely to want him to return. Given this, even had contact been made with his family, they would likely indicate that they were unwilling or unable to look after him, and any corroboration in relation to his claim would thus have been of limited value. The Court was therefore not satisfied that had the Secretary of State fulfilled her duty the further information would have supported the Appellant's claim.

(7)       The appeal thus fell to be dismissed, the Court finding that it need not deal with ground (c).

Appeal dismissed

Key paragraphs

[38] - No finding.

[40] - Questions.

[41] - Breach tracing duty.

[45] - Reliability.

[48] - Impact on claim.

[53] - Ground c.

[52] - Limited value.

[54] - Dismissed.

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