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

A breach of the duty to endeavour to trace an unaccompanied child’s family does not itself entitle a failed asylum seeker to leave to remain. The breach may affect the assessment of risk on return, the section 55 duty, or a separate human-rights claim, but the claimant must show a causative link between the breach and a material evidential or practical disadvantage.

Risk on return must be assessed on the facts at the date of decision. Attaining 18 is not a bright-line event, particularly where the recorded birthday is arbitrary, although the rationale for protecting an unaccompanied child weakens with increasing age. Delay does not justify deciding an asylum claim on obsolete facts.

The appellants were young Afghan men who had arrived in the United Kingdom as unaccompanied minors. Their asylum claims had been refused, but each had received limited discretionary leave under the Secretary of State’s minors policy. Further claims for asylum, humanitarian protection or relief under Article 8 were rejected.

The First-tier Tribunal and, save where the Secretary of State successfully appealed, the Upper Tribunal found that the appellants were not at risk on return to Afghanistan and that removal would not breach their Convention rights. The principal issue was whether the Secretary of State’s systemic failure to endeavour to trace family members required a grant of leave under the corrective or protective principle, notwithstanding those findings.

1. The appeals were dismissed, save that AR’s appeal had to be treated as abandoned after his return to Afghanistan. Sir Stanley Burnton gave the judgment, with which Jackson LJ and Maurice Kay LJ agreed.

2. The court applied the approach in KA (Afghanistan) and others [2012] EWCA Civ 1014. Article 19.3 of the Reception Directive, transposed by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, imposed a duty to endeavour to trace. Merely giving a child Red Cross information did not discharge it, and the Secretary of State’s failure had been systemic.

3. However, breach of that duty was not an independent basis for leave where the claimant faced no return risk, no Convention-rights infringement and no other right to remain. The court was critical of the broader corrective principle in Rashid. A breach could nevertheless be material where it affected the evidence of family support, the assessment of risk, the section 55 duty, or produced a consequence capable of supporting an Article 8 claim. A claimant had to establish a causative link between the breach and the asserted need for protection or other disadvantage.

4. Each live appeal failed that requirement. The tribunals had disbelieved, or had sound grounds to reject, the claims that the appellants lacked family contact or support. Several appellants had supplied no useful tracing information, had family to whom they could return, or had not shown that tracing would have produced evidence favourable to them. The admitted errors in FU’s Upper Tribunal determinations were immaterial.

5. Reaching 18 was not a bright line for assessing return risk, but that error did not affect QA’s case. There was no evidence that he was vulnerable in Kabul. The Upper Tribunal had been entitled to correct the First-tier Tribunal’s unsupported risk findings and inadequate Article 8 reasoning. Asylum claims were to be decided on current facts; non-deliberate administrative delay did not permit determination on an artificial basis of obsolete facts.

• Court of Appeal (Civil Division) — dismissed the live appeals. AR’s appeal was treated as abandoned under section 104(4) of the Nationality, Immigration and Asylum Act 2002.
• Upper Tribunal (Immigration and Asylum Chamber) — dismissed the appellants’ challenges to the refusal of further leave. In QA’s case, it allowed the Secretary of State’s appeal from the First-tier Tribunal and remade the decision by dismissing his claims.
• First-tier Tribunal — dismissed the relevant appellants’ asylum and human-rights appeals, apart from QA, whose appeal was initially allowed.