HK v The Secretary of State for the Home Department

For humanitarian protection under Article 15(c) of the Qualification Directive, a child must show either exceptionally high indiscriminate violence or personal circumstances creating a real risk at a lower level of violence. Children are not, on the evidence considered, disproportionately affected by Afghanistan’s conflict merely because of their age.

Forcible recruitment by the Taliban may occur, particularly in areas of militant activity or control. A claimant must nevertheless establish a real risk for the individual child, not a mere possibility. A child with close relatives in Afghanistan who arranged the child’s departure must provide credible evidence of unsuccessful efforts to contact them before asserting that they cannot meet and care for the child on return.

Three Afghan children appealed against decisions of Immigration Judges dismissing their asylum and humanitarian-protection appeals. Each had discretionary leave under the respondent’s policy for unaccompanied child asylum seekers.

Reconsideration was ordered in each case. Following the transfer of the former Asylum and Immigration Tribunal’s functions, the appeals came before the Upper Tribunal. The Tribunal found material errors of law because humanitarian protection had either been inadequately considered or not considered at all, set aside the earlier decisions, and remade them.

The central issues were whether Article 15(c) protection was available, whether the boys faced forcible Taliban recruitment, and whether they would face serious harm as unaccompanied children returned through Kabul.

1. The appeals were dismissed. Although the earlier determinations contained material errors of law on humanitarian protection, the Tribunal remade the decisions and found no real risk on return.

2. Applying Qualification Directive Article 15(c), as interpreted in Elgafaji Case C-465/07, the Tribunal accepted that personal circumstances may reduce the level of indiscriminate violence required for subsidiary protection. The evidence did not establish that children were disproportionately affected by roadside blasts, air strikes, crossfire or suicide attacks. Nor did it show that the country guidance in GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 was no longer valid.

3. Forcible Taliban recruitment of children could not be discounted, especially in areas of high militant activity or control. However, country material showing anecdotal reports and incidents elsewhere did not establish a real risk for any appellant. There was no material evidence of significant child recruitment in the relevant home areas, and the individual histories did not elevate the risk above a possibility.

4. The Tribunal accepted that children without family care in Afghanistan may face grave risks of homelessness, exploitation, forced labour and sexual abuse. That did not assist these appellants. Each had relatives who had cared for him or arranged his departure, and there was no credible evidence that those relatives could not be traced, would not care for him, or could not meet him in Kabul.

5. In light of available tracing and return assistance, and the absence of evidence that the appellants could not travel on to family support, they had not shown a real risk on the route of return or in their home areas.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal set aside the Immigration Judges’ determinations for material error of law, remade the appeals, and dismissed them.
• Asylum and Immigration Tribunal: The first appellant’s appeal was dismissed after a hearing on 3 July 2009; the second appellant’s appeal was dismissed after a hearing on 12 October 2009; and the third appellant’s appeal was dismissed after a hearing on 14 July 2009. Reconsideration was ordered in each case.