AA (Afghanistan) v Secretary of State for the Home Department & Anor

An unaccompanied minor remains such notwithstanding adequate reception arrangements in the country of origin. However, the Secretary of State’s policy permits return only where he is satisfied that adequate reception and care arrangements are available. A test of reasonable likelihood is insufficient.

A failure to apply a published policy renders the immigration decision not in accordance with the law. Where that failure deprived a former minor of potentially material procedural or practical advantages, the Secretary of State must take that loss into account when deciding whether leave should now be granted. A court may not use relief for an established, limited error of law to reopen a substantive claim on a separate point not raised before the tribunal.

The appellant arrived in the United Kingdom as an unaccompanied asylum seeker from Afghanistan. An adjudicator accepted that he was then 17, but dismissed his asylum and human-rights appeals. The adjudicator did not address the Secretary of State’s policy governing the return of unaccompanied children.

The Asylum and Immigration Tribunal, in proceedings identified as HX/58241/2003, held that any omission was immaterial because it was reasonably likely that the appellant would receive family support in Afghanistan. By the time of its decision he was over 18.

The central issues were whether the Tribunal had applied the correct policy test, whether the error remained material after the appellant reached adulthood, and whether an alleged breach of the policy on interviewing unaccompanied minors could reopen the dismissed protection claims.

1. Appeal allowed. The Tribunal erred in law by treating the availability of adequate reception arrangements as affecting whether the appellant was an unaccompanied minor. That status depended on his age, asylum claim and lack of an adult family member or guardian in the United Kingdom. Reception arrangements instead determined whether the policy permitted return.

2. Per Keene LJ, with whom Waller LJ agreed, the policy required the Secretary of State to be satisfied that adequate reception and care facilities were available before returning an unaccompanied child. The Tribunal’s reasonable-likelihood test was less stringent and wrong. The adjudicator had also failed to apply the policy. Those failures meant that the decision was not in accordance with the law under Nationality, Immigration and Asylum Act 2002, section 86(3)(a).

3. The appellant’s attainment of 18 did not make the error immaterial. Had the policy been applied, he might have obtained discretionary leave, an in-country appeal against refusal to vary it, an automatic extension of leave pending such an application, and associated practical benefits. The court could not restore those benefits as of right, but their loss was material to the Secretary of State’s present discretion.

4. The policy restricting interviews of unaccompanied minors was relevant to the weight that could be placed on the appellant’s interview answers. The Secretary of State should have drawn that policy to the tribunal’s attention. On reconsideration, the Secretary of State must take account of the apparent breach and consider what weight, if any, can properly be attached to the interview and related findings.

5. However, the interview point had not been raised before the Tribunal as a ground of appeal. Applying Miftari v Secretary of State for the Home Department, the court could not use it to allow the asylum or human-rights appeal and reopen the original merits. Carnwath LJ explained that the statutory remedial power exists to give effective relief for the error established, not for unraised errors.

6. The court declared that the Tribunal had erred in law and directed the Secretary of State to consider, in light of the judgments and timely further representations, whether to grant leave to remain and, if so, for how long.

• Court of Appeal (Civil Division): Appeal allowed: the Tribunal had erred in law, and the Secretary of State was directed to reconsider leave to remain ([2007] EWCA Civ 12).
• Asylum and Immigration Tribunal: Dismissed the appeal on 17 October 2005, holding that any failure to address the policy for unaccompanied children was not material (HX/58241/2003).
• Adjudicator: On 6 January 2004 dismissed the asylum and human-rights appeals, while finding that the appellant was then a minor.