AA (Afghanistan) v The Secretary of State for the Home Department

The statutory duty to endeavour to trace the family of an unaccompanied child asylum seeker must be commenced as soon as possible and integrated with the asylum decision-making process. The required steps depend on the circumstances and include reasonably searching questions capable of identifying means of remote contact.

A breach does not itself invalidate a refusal of asylum. The claimant must establish a causative link by showing a real possibility that compliant enquiries would have produced information capable of affecting the decision. The assessment extends to any relevant information which tracing might have elicited, regardless of how the protection claim was formulated.

The appellant was an unaccompanied minor from Afghanistan. He claimed asylum on the basis that the Taliban wished to recruit him after his father, an alleged Taliban commander, was killed, and that the Afghan authorities were also interested in him. The Secretary of State rejected that account but granted discretionary leave until he reached 17½.

The First-tier Tribunal disbelieved the appellant’s account. The Upper Tribunal dismissed his appeal and held, without particularised reasoning, that the Secretary of State had made sufficient endeavours to trace his family. The sole issue before the Court of Appeal was whether a breach of regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 vitiated the refusal of asylum and, if so, what remedy should follow.

1. Appeal dismissed. The Secretary of State breached regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 by failing to commence tracing promptly, failing to integrate tracing with the asylum decision, and failing to ask sufficiently searching questions about possible remote contact with the appellant’s family. The process should have explored whether his grandfather or third parties, such as village elders, had telephones through which contact might be established.

2. The finding in KA (Afghanistan) that there had been a deliberate and systemic failure was not directly applicable to the position in early 2012. By then the Secretary of State had acknowledged the duty and offered tracing assistance. The Court declined to determine whether she should earlier have created wider tracing arrangements in Afghanistan. Such arrangements engaged security, logistics, resources and intergovernmental relations, in respect of which she enjoyed a wide margin of appreciation.

3. The duty is to endeavour to trace family members, and the reasonable steps required depend on the individual case. On the evidence, regulation 6 did not require officials or agents to visit dangerous areas of Nangarhar. Nor was its purpose to obtain evidence corroborating an asylum account. Regulation 6(2) also required attention to the possible danger to family members from enquiries directed to the Afghan security authorities.

4. Section 55 of the Border Citizenship and Immigration Act 2009 may exceptionally require the Secretary of State to seek information relevant to a child’s immigration claim. Such cases are rare. The discussion in HK (Afghanistan) did not create a general duty to investigate the truth of a child’s account, and the present circumstances did not require enquiries of the Afghan police or security authorities.

5. A tracing breach invalidates a protection decision only where the claimant proves a causative link. The question is whether compliant enquiries might have produced information capable of affecting the outcome. This encompasses any information tracing might have elicited, even where the claim concerns persecution rather than the absence of family support.

6. No causative link was established. The appellant had supplied no telephone numbers or names of potentially contactable intermediaries and had stated that he had given all the information he could. There was therefore no demonstrated opening for remote tracing and no showing that the breaches materially affected either the Secretary of State’s decision or that of the First-tier Tribunal. The question of relief under the Rashid/S line of authority did not arise.

• Court of Appeal (Civil Division): Dismissed the appeal. It held that the Secretary of State had breached the tracing duty, but that the appellant had not established that the breach might have affected the asylum decision.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal in a determination dated 3 October 2012, holding that the Secretary of State had made the endeavours required to trace the appellant’s family.
• First-tier Tribunal: Dismissed the asylum appeal in a determination dated 4 April 2012. It rejected the appellant’s account as wholly incredible and did not determine the alleged breach of the tracing duty.
• Secretary of State: Refused asylum and humanitarian protection on 20 February 2012 but granted discretionary leave until the appellant reached 17½.