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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

R (Gafaro) v Secretary of State for the Home Department [2013] EWHC 3365 (Admin); (2013) PLLR 137

Immigration - Leave to remain - Minor - Duty to trace

The failure of the Defendant to endeavour to trace the Claimant's family in Afghanistan, and instead accept his assertion that he had no family, did not render unlawful subsequent decisions refusing the Claimant leave to remain.

6 November 2013

Administrative Court

Ms D Gill

(1)        The Claimant brought this claim to challenge to lawfulness of directions issued for his removal to Afghanistan on 5 April 2012. He also challenged the lawfulness of the decision dated 3 January 2007, by which the Defendant refused the Claimant's asylum application. The earlier decision had not attracted a right of appeal because the Defendant granted the Claimant discretionary leave to remain until 21 December 2007.

(2)        In relation to the January 2007 decision, the Claimant contended when making that decision, the Defendant failed to fulfil its duty to trace his family in Afghanistan, pursuant to regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. The Claimant argued that by breaching this duty, the Claimant was materially disadvantaged. The disadvantage claimed was that he lost the opportunity to support his claim that if removed to Afghanistan in 2007 he would have been returning as a lone child with no family.

(3)        The directions issued pursuant to the April 2012 decision were alleged to be unlawful due to their reliance on the 2007 decision. The Claimant relied upon the principle of corrective justice in support of his claim.

(4)        HELD: In relation to the principle of corrective justice, the Court determined that the test had to be ‘whether the defendant's failure to comply with the duty to endeavour to trace the claimant's family in 2006/2007 before the first refusal has led to such prejudice that it would now be so unfair to remove the claimant notwithstanding that he is not at real risk of persecution in Afghanistan that no reasonable Secretary of State would do so'. The Court noted that it was Claimant's case that if the Defendant had fulfilled her duty, it would have been established that he had no family in Afghanistan. However, this was the precise basis upon which the Defendant had assessed the Claimant's case at the time: based upon his assertion that he had no family. Fulfilment of the duty would not have improved the Claimant's case.

(5)        The Claimant had put forward no reasons or evidence as to why it was unsafe for him to relocate within Afghanistan, and the relevant Operational Guidance Note provided insufficient evidence to indicate that relocation was an unsafe and unreasonable relocation option. The Defendant had been entitled to reach the conclusion that she had. There was also no basis for contending that had the Defendant complied with her duty, a different decision would have been reached.

(6)        The first decision was thus held to be lawful and there was no disadvantage to the Claimant.

(7)        The decision to issue removal directions on 14 September 2012, was held to be lawful as there was no question of unfairness or risk of persecution in Afghanistan. In relation to the removal directions issued in April 2012, the Court held that it was plain that it was safe and not unreasonable for the Claimant to relocate to Kabul. The reasonableness of the relocation of the Claimant as a lone 20 year old had clearly been considered, as had the Claimant's personal circumstances.

(8)        As such, there was no basis for it to be argued that it was unfair to remove the Claimant, nor so unfair that no reasonable Secretary of State would make such a decision.

(9)        The Claimant's claims were thus dismissed.

Claim dismissed

Key paragraphs

[20] - Corrective justice test.

[27] - Basis of decision.

[32] - Entitled reach conclusion.

[33] - First decision lawful.

[34] - Second decision.

[39] - Reasonableness of relocation.

[40] - No basis unfairness.

[42] - Conclusion.

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