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28 AUG 2013

R (on the application of Shinwari) v Secretary of State for the Home Department [2013] EWHC 2148 (Admin); (2013) PLLR 104

Immigration - Minor - Asylum

The Secretary of State's failure to endeavour to trace the Claimant's family did not result in serious disadvantage to him and the decision to refuse him leave to remain was lawful.

19 July 2013

Administrative Court

Frances Patterson QC

(1)        By this claim for judicial review, the Claimant, a national of Afghanistan, sought a declaration that the Secretary of State reconsider her decision to remove him to Afghanistan. By this decision, the Claimant's asylum application was refused, but leave granted for him to remain in the UK until aged 17½. The Claimant subsequently applied to vary his leave to remain, but that application was rejected on 10 September 2010. This decision found that the Claimant was not an orphan and had a family to return to. Further, given his impending 18th birthday, he was at less risk than previously. It was determined that the Claimant's claim of fear of harm by the authorities was not well-founded.

(2)        The Claimant appealed this decision and the First Tier Tribunal made its decision rejecting his appeal on 10 November 2010. The tribunal placed weight on the fact that the fact that the Claimant was nearing the age of 18, and did not consider that he was at risk if he was returned to Afghanistan.

(3)        The Claimant contended that:

a.         The Defendant breached her obligations under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to trace the Claimant's family;

b.         The Defendant failed to have any or proper regard to her duty under section 55 of the Borders Citizenship and Immigration Act 2009;

c.          The Claimant suffered a material disadvantage by virtue of those breaches;

d.         In failing to grant the Claimant leave to remain, the Defendant acted unlawfully; and

e.          The Defendant should reconsider her decision in accordance with the principle of corrective relief.

(4)        The Defendant admitted breaching her duty to endeavour to trace the Claimant's family, but contended that there was no causal link between that failure and the outcome of the Claimant's asylum claim.

(5)        HELD: The Court could find no basis for criticism of the immigration judge in the First Tier Tribunal and he had been entitled to reach an adverse finding as to the Claimant's credibility.

(6)        The failure to endeavour to trace the Claimant's family did not cause serious or material disadvantage to him. The Court held that the immigration judge had rightly assessed the risk involved in relocation, rather than simply considering the age of the Claimant. There was no significant disadvantage leading to the conclusion that the Defendant had acted unlawfully or perversely in setting removal directions.

(7)        As such, the refusal to grant leave to remain was neither unlawful nor perverse. The Defendant had been entitled to reach the conclusion that she had, and there was no basis to invoke the principle of corrective justice. The claim was thus dismissed.   

Claim dismissed

Key Paragraphs

[5] - Defendant submissions.

[17] - Adverse credibility finding.

[18] - No material disadvantage.

[19] - Relocation.

[20] - Lawful removal directions.

[21] - Conclusion. 

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