TN (Afghanistan) & Anor v Secretary of State for the Home Department

An asylum applicant has an effective remedy under Article 39 of the Procedures Directive where judicial review provides independent and sufficiently thorough scrutiny of the refusal. The remedy need not reproduce every feature of a specialist statutory merits appeal, including oral evidence. Parliament may restrict a statutory appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 if an effective remedy remains elsewhere in the legal system.

For an unaccompanied child, a liberal approach to the benefit of the doubt does not reverse the burden of establishing an asylum claim. An adverse inference from failure to contact family may be legitimate if justified by all the circumstances. Appellate asylum decisions should ordinarily reflect current evidence and risk; corrective relief must not confer leave on a person who no longer merits it.

The appellants were Afghan nationals who had arrived as unaccompanied minors. The Secretary of State refused their asylum claims and granted discretionary leave to remain until each was aged 17½. As the grants were for less than one year, section 83 of the Nationality, Immigration and Asylum Act 2002 gave neither an immediate statutory appeal against the initial refusal.

TN challenged that position by judicial review. Lindblom J dismissed the claim. MA pursued a later statutory appeal after a further refusal, but the Upper Tribunal dismissed his asylum appeal after rejecting his account. TN's parallel statutory appeal was remitted to the Secretary of State following consideration of the tracing duty.

The common issue was whether judicial review, in place of an immediate statutory appeal while the appellants were children, was an effective remedy under Article 39 of the Procedures Directive and Article 47 of the Charter.

1. The appeals were dismissed unanimously. Judicial review of the initial asylum refusals was an effective remedy for the purposes of Article 39 of the Procedures Directive. The Directive establishes minimum standards and assesses effectiveness by reference to the administrative and judicial system as a whole. Following Samba Diouf v Ministre du Travail [2012] 1 CMLR 8, the remedy did not have to replicate a statutory appeal to the First-tier Tribunal or provide a merits hearing with oral evidence.

2. English judicial review in asylum cases provided independent judicial scrutiny, including anxious scrutiny where life or liberty may be at risk. The Court applied the reasoning in Vilvarajah v United Kingdom (1992) 14 EHRR 248. Parliament was therefore entitled to restrict the specialist appellate jurisdiction under section 83 of the Nationality, Immigration and Asylum Act 2002, provided an effective remedy remained available in the courts.

3. Maurice Kay LJ did not accept that the combination of judicial review, short discretionary leave and a later statutory appeal was independently sufficient. A delayed appeal might not be as effective as an immediate remedy for a child. Beatson LJ would also have dismissed on that alternative basis, and Briggs LJ was inclined to agree, but neither view was necessary to the result.

4. MA's credibility challenge failed. A liberal application of the benefit of the doubt for children does not shift the burden of proving an asylum claim. Applying HK (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 315, an adverse inference from lack of contact with family may be drawn where justified by the circumstances, age and encouragement to make contact. The Upper Tribunal had taken MA's age and the low standard of proof into account, but had unequivocally rejected his account. The tracing breach and absence of an earlier appeal did not vitiate that conclusion.

5. R v Secretary of State for the Home Department, ex parte Ravichandran (No 1) [1996] Imm AR 97 remained an even-handed principle: an appellate tribunal ordinarily decides asylum claims on current evidence and risk. Corrective relief could mitigate that principle in an appropriate case, but could not give leave to a person who no longer faced a relevant risk or otherwise merited no status. No reference to the Court of Justice was required. Article 47 of the Charter added nothing, and no question of remitting TN's damages claim arose.

• Court of Appeal (Civil Division): Dismissed both appeals in [2013] EWCA Civ 1609.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed MA's re-determined statutory appeal. In TN's parallel statutory appeal, found an error of law and remitted the matter to the Secretary of State for reconsideration in light of KA (Afghanistan).
• High Court, Queen's Bench Division, Administrative Court: Lindblom J dismissed TN's substantive judicial review challenge on 16 December 2011, while granting permission to appeal.