KA (Afghanistan) & Ors v Secretary of State for the Home Department

A failure to endeavour to trace the family of an unaccompanied asylum-seeking child may remain relevant after the child turns 18. The duty is positive and is not discharged merely by informing the child about Red Cross tracing facilities.

Breach does not automatically establish an asylum or humanitarian protection claim. The applicant must prove entitlement to protection and a causative disadvantage arising from the breach. Present circumstances may include the need to correct injustice caused by past illegality. Apparent age, vulnerability, family support and cooperation remain relevant; risk does not end automatically on the eighteenth birthday.

Eight Afghan nationals had entered the United Kingdom as unaccompanied minors and claimed asylum. Each received discretionary leave until the age of 17½. Their subsequent protection claims were refused, their appeals to the First-tier Tribunal failed, and the Upper Tribunal generally assessed risk after they had reached adulthood.

The appeals raised whether the Secretary of State had systematically breached the duty under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace an unaccompanied minor’s family. The court considered whether any breach remained relevant after majority, how it affected protection claims and the section 55 welfare duty, and whether lack of cooperation permitted adverse inferences.

SA’s appeal was conceded separately. The court deferred determination of the other seven appeals pending submissions applying the stated principles to their individual facts.

1. SA’s appeal was allowed. The Upper Tribunal’s decision was set aside and the First-tier Tribunal’s grant of humanitarian protection was restored. The remaining seven appeals were adjourned for further submissions and, if necessary, a later hearing.

2. Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 imposed a positive duty on the Secretary of State to endeavour to trace an unaccompanied minor’s family. Merely telling a child about Red Cross facilities did not discharge it. Maurice Kay LJ concluded that the Secretary of State had adopted a systemic practice which failed to discharge the duty in relation to unaccompanied Afghan minors.

3. The breach did not automatically require an appeal to be allowed. The principle derived from Rashid and S could, however, modify the strict application of the rule that an asylum appeal is decided on circumstances prevailing at the hearing. Present circumstances could include the need to correct injustice caused by past illegality.

4. An applicant therefore had to establish both breach and entitlement to the relief sought. A credible and cooperative applicant might show that the breach deprived him of the opportunity to corroborate the absence of family support. An applicant whose account was disbelieved and who frustrated tracing might fail to establish either risk or a causal connection between the breach and any disadvantage.

5. Attaining the age of 18 did not create a bright line at which protection risks ceased. In assessing forced recruitment, sexual exploitation and similar risks, apparent or assumed age could be more significant than chronological age. Reception arrangements, family support and the individual’s continuing vulnerability required assessment on the evidence.

6. Failure to trace could also affect the discharge of the section 55 duty under the Borders, Citizenship and Immigration Act 2009. A tribunal could nevertheless draw an adverse inference from failure to cooperate where the evidence justified it, having regard to such matters as age, the circumstances of arrival and whether contact with family had been encouraged.

Hooper and Moore-Bick LJJ agreed with Maurice Kay LJ.

1. Court of Appeal (Civil Division): In [2012] EWCA Civ 1014, allowed SA’s appeal, set aside the Upper Tribunal’s decision and restored the First-tier Tribunal’s decision. It adjourned the other seven appeals for supplementary submissions and possible relisting.
2. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellants’ appeals after they had attained majority. In SA’s case, it allowed the Secretary of State’s appeal from the First-tier Tribunal.
3. First-tier Tribunal: Dismissed the protection appeals other than SA’s. It allowed SA’s appeal on humanitarian protection grounds.