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

An unaccompanied child asylum seeker bears the burden of establishing the claim. The child’s vulnerability may justify special procedures and greater benefit of the doubt, but it does not formally shift that burden. A tribunal may infer from a failure to seek contact with known relatives that suitable family reception is available, where the circumstances justify that inference.

The Secretary of State’s tracing duty is intimately connected with the asylum determination. Giving primary consideration to the child’s welfare requires obtaining as much information as is reasonably possible about the child’s circumstances. A breach does not automatically require asylum to be granted. The tribunal must assess the available evidence, the child’s best interests, fairness and the need for a timely decision.

Three Afghan children arrived separately in the United Kingdom as unaccompanied minors. Their claims for asylum and humanitarian protection were refused, although they received discretionary leave. The original tribunals found that relatives in Afghanistan could receive them or otherwise failed adequately to address humanitarian protection.

The Upper Tribunal set aside those decisions for errors concerning humanitarian protection and remade them. It found that each child had family willing and able to provide care, and that the families could meet them in Kabul. It therefore refused asylum and humanitarian protection.

Permission to appeal was granted solely on the alleged failure to consider section 55 of the Borders, Citizenship and Immigration Act 2009. The Secretary of State conceded that the determinations should be set aside and offered a rehearing. The appellants contended that remission was insufficient and that refugee status should be granted immediately.

1. The appeals were allowed unanimously and the applications remitted to the Upper Tribunal. The Upper Tribunal had not considered the section 55 duty. The claims required fresh determination in the light of all relevant evidence, including information which the Secretary of State was obliged to seek through family-tracing inquiries.

2. Per Elias LJ, the burden of establishing an asylum claim remains on the asylum seeker, including where the applicant is a child. The vulnerability of an unaccompanied minor produces special procedural protections and may justify giving the child greater benefit of the doubt. It does not create a formal reversal of the burden of proof. A failure to attempt contact with relatives may support an inference that family reception is available. Whether that inference is proper depends on factors including the child’s age, the circumstances of arrival and whether contact was encouraged. On the existing evidence, the Upper Tribunal had been entitled to draw it.

3. The absence of a relative able to receive a child does not itself compel asylum. LQ was not a country-guidance decision establishing that every unattached Afghan child faces serious harm. Risk depends upon the evidence, the child’s individual circumstances and the proposed place of return.

4. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to obtain as much information as is reasonably possible before determining where a child’s best interests lie. The family-tracing obligation under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 arises when the asylum claim is made and is intimately connected with its determination. An unjustified failure to trace may leave the decision-maker unable properly to assess the child’s best interests.

5. A breach of regulation 6 is not, by itself, determinative of an asylum claim. A tribunal may sometimes decide a claim before tracing is complete. Delay must be balanced against the need for information and the child’s interest in a prompt determination. In an appropriate case, deliberate or serious delay may justify deciding the claim on the existing material and granting protection, subject to possible later revocation if circumstances change.

6. The Court of Appeal could not itself require refugee status. Potentially relevant matters had not been considered by the Upper Tribunal. The appropriate remedy, consistently with DS (Afghanistan), was a fresh hearing.

1. Court of Appeal (Civil Division): The appeals were allowed unanimously. The determinations were set aside and the asylum applications remitted to the Upper Tribunal for fresh consideration.
2. Upper Tribunal (Immigration and Asylum Chamber): The original decisions were set aside for errors concerning humanitarian protection. The Upper Tribunal remade the decisions, finding that family members in Afghanistan could receive and protect the appellants, and dismissed the claims for asylum and humanitarian protection.
3. Asylum and Immigration Tribunal: The three asylum appeals were dismissed in separate determinations. Reconsideration was subsequently ordered.