ZH (Afghanistan) v Secretary of State for the Home Department

An unaccompanied child’s inclusion within a policy applying where adequate reception arrangements are unavailable does not itself establish refugee status. The policy may be broader than the Refugee Convention threshold. The claimant must still show, on the individual facts, a real risk or serious possibility of persecution on return. A rejected account does not make a claim impossible, but an evidential gap about family circumstances or likely reception cannot be filled by speculation. The question whether the risk is for a Convention reason arises only after risk has been established.

This was an application for permission to appeal against Senior Immigration Judge Jordan’s reconsideration determination, which dismissed the appellant’s appeal under the Refugee Convention. The initial Immigration Judge had rejected the appellant’s account but allowed the appeal, treating him as an Afghan child without family and at risk as a member of a particular social group. Reconsideration was ordered because those findings were inconsistent with the rejection of his account. The central issue was whether the Secretary of State’s policy concerning unaccompanied Afghan children was sufficient to establish refugee status despite the absence of credible evidence about the appellant’s family and circumstances on return.

Sullivan LJ gave the judgment, with which Rimer LJ agreed. The application for permission to appeal was refused.

1. The fact that a child falls within the Secretary of State’s policy for unaccompanied Afghan minors does not itself discharge the burden of establishing refugee status. The policy requires the child to be unaccompanied, to have untraceable parents and to lack adequate reception arrangements. Its scope is deliberately broader than the narrower threshold for persecution under the Refugee Convention.
2. An account that has been comprehensively rejected does not make a refugee claim impossible as a matter of principle. It remains difficult but not impossible. The claimant must nevertheless provide a factual basis for the alleged risk. Where the evidence does not establish whether parents or other family members exist, can be traced or can receive the child, the court cannot fill the evidential lacuna through speculation or unsupported inferences.
3. The assessment must address the individual circumstances in which the child left the country and the circumstances in which the child would return. The question whether any established risk of harm amounts to persecution for a Convention reason, including membership of a particular social group, arises only after the risk itself has been established. The reference to LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005 did not alter that sequence; that authority concerned a specific finding that the appellant was an orphan.

This appellant had not established that his father was dead, that he could not contact his parents, or that no family member could receive him. He therefore failed to establish any real risk or serious possibility of persecution. Application refused.

1. Court of Appeal (Civil Division): refused the application for permission to appeal.
2. Asylum and Immigration Tribunal: Senior Immigration Judge Jordan dismissed the appeal on reconsideration in a determination promulgated on 17 October 2008. Reconsideration had followed an earlier determination by Immigration Judge Pirotta dated 23 April 2008, which had allowed the appeal under the Refugee Convention.