ABC (A Minor) (Afghanistan), R (On the Application Of) v Secretary of State for the Home Department

For exclusion from humanitarian protection on the ground of a serious crime, the decision-maker must assess whether the material establishes a serious belief, substantially more than suspicion, that the claimant committed a serious crime. The assessment must address the whole factual and legal matrix, including possible defences, culpability, age and circumstances, and likely punishment. The offence label is insufficient. Where the claimant is a child or young person, welfare under the Borders, Citizenship and Immigration Act 2009, section 55, must occupy a pivotal and high-ranking place, although it is not paramount. A rolling six-month review is unlawful where it fails to demonstrate how it safeguards or promotes the child’s welfare. The claim succeeded and the decisions were quashed.

The claimant, an Afghan national aged 16, arrived in the United Kingdom aged 14 and claimed asylum. The Secretary of State excluded him from asylum and humanitarian protection under paragraph 339D of the Immigration Rules because there were serious reasons for considering that he had committed a serious crime abroad. Discretionary leave was granted for six months at a time because removal was considered contrary to article 3 of the European Convention on Human Rights.

The claimant challenged both the serious-crime assessment and the rolling review of discretionary leave. The central issues were whether the alleged killing had been lawfully assessed and whether section 55 of the Borders, Citizenship and Immigration Act 2009 had been properly applied.

1. Serious crime. Paragraph 339D required material justifying a serious belief, much more than suspicion, that the claimant had committed a serious crime. The Secretary of State was not required to conduct a mini-trial or determine guilt, but had to evaluate the whole factual and legal matrix with care. That included the applicable law, the facts of the alleged offence, potential legal and factual defences, age, circumstances, culpability and likely punishment. The offence label could not replace that assessment.
2. The original decision treated the killing as accidental and did not analyse culpability, possible defences or the child-specific guidance. The later reasons were not merely supplemental and also misstated English law. The burden in self-defence was wrongly placed on the defendant, contrary to R v Lobell [1957] 1 QB 547. The paragraph 339D decision was therefore unlawful.
3. Welfare. Section 55 required the claimant’s welfare to be included in the serious-crime assessment and the discretionary-leave decision. Following ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, welfare was a factor of the highest rank, though not paramount, and could be displaced or reduced only by very strong countervailing factors.
4. The six-month rolling review did not demonstrate adequate consideration of the claimant’s welfare, including the psychological consequences of continuing uncertainty, his estrangement from family and the possible unfairness caused by delay in any future prosecution. The discretionary-leave decision was Wednesbury unreasonable.
5. The judicial review claim succeeded. The Secretary of State’s decisions were quashed, and the claimant should have an opportunity to make further representations before fresh decisions.