TN v Secretary of State for the Home Department

An asylum applicant may have an effective remedy even without an immediate merits appeal against refusal of asylum. The remedy must be adequate and available within a reasonable time, but immediacy is not essential. Its effectiveness must be assessed in the context of the domestic immigration and asylum system as a whole, including judicial review and any later in-country appeal on the merits. A change in the factual basis of an asylum claim caused by the passage of time does not, by itself, make the appellate remedy ineffective. The best interests of an unaccompanied child must be a primary consideration in relevant decision-making, but this does not require all statutory appeal provisions to guarantee determination of the appeal before the child reaches 18. Sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 were therefore compatible with Article 39 of the Procedures Directive and relevant child-protection obligations.

The claimant was an unaccompanied Afghan child whose asylum and humanitarian-protection claims were refused. He was granted discretionary leave until shortly before his eighteenth birthday, but the grant was for less than the period required to give him an immediate appeal under section 83 of the Nationality, Immigration and Asylum Act 2002.

He sought judicial review, arguing that the statutory scheme denied him an effective remedy under Article 39 of the Procedures Directive, unlawfully failed to protect his best interests as a child, and discriminated against him because of his age. He also relied on the prospect that an appeal might be decided only after he had turned 18, when some child-specific aspects of his claim might no longer be available.

1. The claim failed. The Secretary of State’s decision of 12 November 2010 was lawful. The claimant had not been denied an effective remedy and sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 were not incompatible with Article 39 of the Procedures Directive or the relevant Charter and child-protection obligations.
2. Article 39 does not prescribe an immediate merits appeal as the only effective remedy. Effectiveness requires an adequate remedy available within a reasonable time, assessed in the context of the domestic system as a whole. A later in-country appeal against refusal to extend leave may fully examine the asylum and humanitarian-protection claims. Judicial review is also a court remedy for errors of law, procedure, policy or unlawfulness. The fact that the remedy is deferred, or that the merits may have altered by the hearing date, does not itself make it ineffective.
3. The statutory scheme was not rendered virtually impossible or excessively difficult to operate by limiting the section 83 appeal to grants of leave exceeding one year. The reasoning in FA (Iraq) concerned equivalence between asylum and subsidiary-protection claims, not the lawfulness of the one-year threshold. The scheme had to be viewed as a whole.
4. Article 39(5) reinforced the conclusion, although it was unnecessary to decide conclusively whether discretionary leave conferred rights and benefits identical or substantively equivalent to refugee status. The practical protection available to a child with discretionary leave supported the existence of an effective remedy.
5. The claimant’s case was not based solely on childhood. It principally alleged persecution by Taliban-linked uncles and forced recruitment. Those matters could still be considered on any later appeal. The principle in LQ (Age: Immutable Characteristics) Afghanistan did not establish that every unaccompanied Afghan child qualifies for asylum, and child-based risk may cease when the person reaches 18.
6. The best interests of the child must be a primary consideration in decisions under the immigration and asylum system. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied to the Secretary of State’s decision, and the court was satisfied that the claimant’s welfare had been considered. That principle did not require Parliament’s general appeal provisions to be recast.
7. The family-tracing duty under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 arose when the asylum claim was made and continued until the child reached 18. Its existence, or compliance with it, did not determine whether the claimant had an effective remedy.