AA (Afghanistan), R (on the application of) v Secretary of State for the Home Department

Asylum and immigration decisions ordinarily reflect the facts at the date of decision. That principle may require modification where past unlawfulness or other events make decision solely on current facts so unfair that no reasonable Secretary of State could proceed in that way. The threshold is high. Courts cannot intervene on broad notions of fairness or direct immigration policy. A policy defect alone does not create a right to be treated as a minor after majority. The decision-maker must assess individual circumstances, including demonstrable disadvantage and any causal connection between past unlawfulness and the claimed protection. Relief may be limited to quashing the decision and requiring lawful reconsideration. The court should not direct asylum or leave unless the law requires that result.

The appellant, an Afghan national, arrived in the United Kingdom and claimed asylum as a minor. An initial age assessment treated him as an adult. A later local authority assessment, accepted by the Secretary of State, placed his date of birth before his eighteenth birthday. The Secretary of State refused to reopen the asylum claim after he had turned 18, relying on the fact that he was no longer eligible for UASC discretionary leave.

The Administrative Court at Cardiff found a lacuna in the discretionary-leave policy and directed that three years’ discretionary leave be granted. The appellant appealed, seeking refugee status and five years’ leave. The Secretary of State cross-appealed against the grant of three years’ leave. The central issue was whether the post-18 decision should proceed on a notional pre-18 basis or should recognise possible lost benefits caused by the failure to decide the claim while the appellant was a minor.

1. Appeal and cross-appeal. The appellant’s appeal was allowed and the Secretary of State’s cross-appeal was also allowed. The decision of 8 February 2011 was quashed. The Secretary of State was required to consider whether, in light of the position that ought to have prevailed had the case been properly decided before the appellant turned 18, any order should now be made in his favour.
2. Applicable principle. The ordinary rule, derived from [1996] Immigration Appeal Reports 97, is that an asylum decision is made by reference to the facts prevailing at the time of decision. That approach may be modified where past illegality or other past events create a present need to remedy injustice. The reasoning in Rashid, [2005] EWCA Civ 744, and S, [2007] EWCA Civ 546, was understood in that way. The later guidance in S, [2009] EWCA Civ 142, required a narrow and individualised approach.
3. Threshold and supervisory role. The question was a Wednesbury one: whether proceeding without regard to the matters relied upon would be so unfair that no reasonable Secretary of State would take that course. Generalised fairness, broad assertions of prejudice or loss, and judicial direction of immigration administration were insufficient. Intervention was confined to an extreme case of conspicuous unfairness. The approach was consistent with KA (Afghanistan), [2012] EWCA Civ 1014.
4. Application. Even assuming that the UASC discretionary-leave policy contained an unlawful lacuna, that illegality alone could not modify the facts-at-decision principle or require an over-18 claimant to be treated as under 18. The initial age assessment, later corrected and accepted, was not by itself sufficient. The failure to endeavour to trace family members, contrary to Regulation 6 of the Asylum Seekers Reception Conditions Regulations 2005, could be material, but its effect depended on the established facts, disadvantage and causal connection. The appellant’s credibility findings and possible family connections created difficulties, but the unexplained delay meant that a reasonable Secretary of State should have considered the possible consequences of a pre-18 decision.
5. Relief. The court would not require the Secretary of State to grant asylum or five years’ leave, since that would risk perpetuating the unlawful no-tracing policy. Nor was the judge entitled to direct three years’ discretionary leave. The policy-quashing declaration was not otherwise before the court on the cross-appeal.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 1643: allowed the appeal and cross-appeal, quashed the decision of 8 February 2011, required lawful reconsideration, and set aside the direction granting three years’ leave.
• Administrative Court at Cardiff — judgment given on 22 December 2011: found a lacuna in the UASC discretionary-leave policy and directed that the appellant receive three years’ discretionary leave.