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28 AUG 2013

R (on the application of Hashemi) v The Upper Tribunal (Immigration and Asylum Chamber) and Another [2013] EWHC 2316 (Admin); (2013) PLLR 101

Immigration - Minor - Age - Asylum

The Secretary of State had lawfully determined the Claimant's asylum application as that of an adult, as he had reached 18 years of age when that application was made. The failure to trace his family had resulted in no significant disadvantage to the Claimant.

31 July 2013

Administrative Court

Hickinbottom J

(1)        The Claimant, an Afghanistan national, challenged the decision of the Upper Tribunal to refuse him permission to appeal against earlier decisions not to grant him leave to remain on the basis of humanitarian and human rights grounds

(2)        The Claimant had arrived in the UK on 18 August 2009 and stated that he was around 14 years of age and an orphan. The Claimant stated that there was no one in Afghanistan who could care for him, and he had no information concerning his relatives there. The Claimant made an asylum application on the basis that if returned he:

(a)        feared that he would be killed by those who killed his parents;

(b)        would suffer indiscriminate violence;

(c)        feared that he would suffer abuse as an orphan with no one to care for and protect him.

(3)        The initial caseworker did not find the Claimant's account to be plausible and thought that the Claimant would be able to trace his two older brothers, but was unwilling to provide the Secretary of State with that information. As an unaccompanied minor, the Claimant was however granted discretionary leave to remain until he was 17½ years of age. The Claimant reached 18 years of age in November 2011, and removal directions to Kabul were set on 12 September 2012. The Claimant was removed to Kabul on 19 November 2012.

(4)        The Claimant alleged that contrary to the Secretary of State's obligation under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, there had been no steps taken to trace the Claimant's family members. This was said to have caused prejudice to the Claimant, depriving him of potential evidence that his parents were dead and his brothers missing, which may have supported his claim for asylum. It was argued that if the Secretary of State had complied with her obligation to trace the Claimant's family, he would have been granted refugee status, and ought now to be given ‘corrective leave' (as formulated in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744) to remain in the UK.

(5)        The Claimant's grounds of challenge to the Upper Tribunal were that it had failed to take into consideration that the Secretary of State had:

(i)         failed to take steps to trace his family in Afghanistan, and

(ii)        failed to provide him with a remedy under European Union law by refusing to allow him to appeal the refusal of his second asylum claim whilst a child. It was argued that delay in making a decision played a significant part in this regard. 

             The Claimant further contended (ground iii) that his removal was unlawful as he was removed without the Secretary of State making a lawful decision to remove him.

(6)        HELD: The Court rejected the Claimant's submissions as to the first ground. The decision as to whether to grant leave to remain should be made on the basis of circumstances at the date of the decision. The decision-maker is only required to take into account previous conduct by the Secretary of State where that conduct was unlawful and such conduct must be taken into account to avoid unfairness to the Claimant. Further, the Court will only intervene in respect of allegations that a decision-maker has failed to take relevant factors into account on traditional Wednesbury unreasonable grounds.

(7)        The Court held that even had the Claimant established a breach of duty by the Defendant in failing to trace his family, he had not established that he suffered any real disadvantage as a result of this. The normal steps taken to trace the Claimant's relatives were all but impossible given the sparse information available about them. The Court was not persuaded that had the Defendant have taken the contended steps further information would have been produced.

(8)        Further, it was difficult to see how that information might have assisted the Claimant. Had his brothers been traced, he would have been liable to return to Afghanistan. Had they not, he would have been granted leave to remain until he reached 17½ years of age, as he had been granted in any event. Thus, any breach of duty would be immaterial to the outcome of this case. The Court thus held that the principle of corrective relief, as formulated in Rashid, played no part in this case. 

(9)        The Court was unpersuaded by the submissions made as to the second ground. Any delay in communicating decisions to the Claimant, although unfortunate, did not render the decisions unlawful. At the time of the delayed decisions, the Claimant had no outstanding asylum appeal or application. His rights were therefore not curtailed. Once 18, the Claimant's claim fell to be determined on the basis that he was an adult. The onus on a Claimant was to make a strong asylum claim, and each case turned on its own facts.

(10)     Further, in relation to the second ground, the Court held that the Claimant was faced with two difficulties:

(a)        the Secretary of State had not acted unlawfully in not determining the Claimant's asylum case before he turned 18; and,

(b)        the Claimant had suffered no real disadvantage as a result of any failure.

             The Claimant had also failed to exercise his right of appeal in relation to the refusal of his asylum claim in February 2010 and a subsequent asylum claim. The Court was thus not satisfied that the Claimant had been left without an effective remedy. The decisions made by the Upper Tribunal were found not to contain an error. Ground two thus failed.

(11)     In relation to ground three, the Court found that there was no evidence of a decision to issue removal directions under section 10 of the Immigration Act 1971. The Claimant had therefore been removed as a result of a process that appeared to be unlawful, and deprived him of an in-country right of appeal. However, the each of the Defendant's earlier decisions had been appealable, and the appeals had been dealt with by the First-Tier Tribunal, where the lawfulness of the removal decision had not been raised. Nor had the issue been raised before the Upper Tier Tribunal. That challenge had not been against the validity of the removal decision, but against the Upper Tier Tribunal decision and the Judge was not required to consider a ground of appeal not raised.

(12)     The Court found that the Claimant had suffered no injustice as a result of the Secretary of State's failure to make a removal decision under section 10. In any event, relief was always discretionary, and given that the Upper Tier Tribunal had considered the merits of an appeal against such a decision, this Court would not require the Secretary of State to return the Claimant to the UK and enable him to exercise any right of appeal that he might have. The Secretary of State had been entitled to consider that the Claimant's removal was lawful at the time it took place. Ground three was thus held to fail.

(13)     The claim was thus dismissed.     

Claim dismissed

Key Paragraphs

[36] - Rejected first ground.

[41] - Relevant propositions.

[42](iii) - No disadvantage.

[42](ix) - Breach immaterial.

[43] - Ground one conclusion.

[66] - Determine as adult.

[74] - Ground two difficulties.

[75] - Effective remedy. 

[75]-[77] - Ground two conclusion.

[80](vi) - No section 10 removal decision.

[81](i)-(ii) - Not appealed removal decision.

[81](iv) - Grounds sought for permission to appeal.

[81](vi) - Relief discretionary.

[81]-[82] - Ground three.  

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