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

When determining an unaccompanied child’s asylum appeal, an immigration tribunal must have regard to the statutory need to safeguard and promote the child’s welfare. The child’s best interests are a primary, but not the sole or paramount, consideration. They must be assessed alongside all other relevant factors, without treating any competing factor as inherently more significant.

The Secretary of State’s duty to endeavour to trace an unaccompanied minor’s family is distinct from the determination of the asylum claim. A failure to trace does not by itself determine that claim, although information obtained through tracing may be material. The child’s own failure to establish contact does not extinguish the statutory tracing duty.

The appellant, an Afghan citizen who entered the United Kingdom unaccompanied at the age of 15, claimed asylum on the basis that he would be exposed to exploitation and ill-treatment if returned without adequate family reception arrangements. The Secretary of State refused asylum and humanitarian protection but granted discretionary leave because she was not satisfied that adequate reception arrangements existed.

An initial tribunal allowed the asylum appeal. Following reconsideration, the Asylum and Immigration Tribunal held on 20 November 2009 that the appellant’s mother and uncle remained available to receive and protect him. It dismissed his claims for asylum and humanitarian protection.

The appeal concerned the Secretary of State’s family-tracing duty, the relevance of reception arrangements to the protection claims, and the tribunal’s failure to consider the appellant’s welfare and best interests under section 55 of the Borders, Citizenship and Immigration Act 2009.

1. Appeal allowed unanimously and case remitted to the Upper Tribunal. Lloyd LJ gave the reasoning accepted by Rimer LJ. Pill LJ agreed in the result, although his reasoning concerning the relationship between family tracing and the asylum decision was broader.

2. By the time the tribunal reconsidered the appeal, section 55 of the Borders, Citizenship and Immigration Act 2009 was in force. Although the Secretary of State’s original decision pre-dated that provision, the tribunal formed part of the immigration decision-making process. It therefore had to determine the appeal in accordance with the law applicable at the time of its own decision. Its failure to consider the need to safeguard and promote the appellant’s welfare was an error of law: R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 applied.

3. Following ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, a child’s best interests are a primary consideration, but they are neither paramount nor necessarily decisive. The assessment must begin with those interests and weigh them against all other relevant considerations, including effective immigration control. No competing consideration is inherently more significant. No lawful best-interests assessment had been undertaken in this case.

4. Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 imposed a duty on the Secretary of State to endeavour to trace the family of an unaccompanied minor. Lloyd LJ held that the tracing process was distinct from determination of the asylum claim. Failure to trace was not, by itself, determinative of asylum entitlement, although any results could be material. Pill LJ considered that the duty could not be ignored when the asylum claim was assessed and that the appellant’s alleged lack of co-operation did not relieve the Secretary of State of it.

5. An Afghan minor could fall within the social group recognised in LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005 if he were an orphan in strict or practical terms and lacked adequate reception arrangements. The appellant bore the burden of establishing that status. The precautionary grant of discretionary leave did not establish that suitable reception arrangements did not exist or could not be made.

6. The outcome of the protection claims was not foregone. The Upper Tribunal was to reconsider both asylum and humanitarian protection, with the factual issue concerning family contact left open and with the parties co-operating in the necessary tracing and best-interests assessment.

1. Court of Appeal (Civil Division): By judgment dated 22 March 2011, the court allowed the appeal unanimously and remitted the asylum and humanitarian-protection claims to the Upper Tribunal for further reconsideration.
2. Asylum and Immigration Tribunal: On 20 November 2009, Designated Immigration Judge O’Malley found an error of law in an earlier determination, conducted a full reconsideration and dismissed the claims for asylum and humanitarian protection.
3. Asylum and Immigration Tribunal: On 24 April 2009, the tribunal had allowed the asylum appeal. Reconsideration of that decision was ordered on 27 May 2009.
4. Secretary of State: On 13 March 2009, the Secretary of State refused asylum but granted discretionary leave until 15 March 2011 because she was not satisfied that adequate reception arrangements existed in Afghanistan.