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

A breach of the duty to endeavour to trace the family of an unaccompanied asylum-seeking minor does not automatically require later immigration decisions to be made by reference to the claimant’s former minority. The claimant must show prejudice or disadvantage caused by the breach, and sufficient unfairness to justify departing from the general rule that asylum decisions are assessed on the facts and circumstances prevailing when the decision is made. A lost possibility that an earlier decision might have been different is insufficient. Where the claimant is now an adult, faces no present risk on return, and has no independent entitlement to remain, removal remains lawful unless the breach produced material prejudice of the required kind.

The claimant, an Afghan national, arrived in the United Kingdom aged 15 as an unaccompanied minor and claimed asylum. The Secretary of State did not endeavour to trace his family under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. His asylum claim and later application were refused. The First-tier Tribunal found that he was not at risk of persecution or humanitarian protection on return and that removal would not breach Article 8 of the European Convention on Human Rights.

After removal directions were issued, the claimant sought judicial review. He argued that the failure to trace his family had deprived him of evidence about the risk arising from his father’s activities and of a proper assessment of whether he would be a lone and vulnerable child on return. The central issue was whether that breach caused sufficient prejudice or unfairness to make removal unlawful.

1. The claim was dismissed. The decision to remove the claimant to Afghanistan was lawful.
2. The general rule, identified in Ravichandran v Secretary of State for the Home Department [1996] Imm. A.R. 97, is that asylum and humanitarian protection decisions are made on the facts and circumstances prevailing when the decision is taken. The principles in Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744 provide an exception where an unlawful failure to apply a relevant policy causes past prejudice that remains relevant to a later decision.
3. The principles in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 and EU (Afghanistan), FU (Afghanistan), SU (Afghanistan), AR (Afghanistan), QA (Afghanistan) and AK (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 32 did not make the breach of the tracing duty independently determinative. The claimant had to establish material prejudice or disadvantage and such unfairness that removal would be unlawful.
4. The claimant had not shown that the failure to trace his uncle affected the assessment of his asylum claim. The First-tier Tribunal had accepted the factual account but found, on the objective evidence, no real risk arising from his father’s activities.
5. A child’s lack of family reception arrangements may, depending on the facts, create a risk of exploitation or ill-treatment. It does not automatically establish persecution or a breach of human rights. The court considered LQ v Secretary of State for the Home Department [2008] UKAIT 00005, AA (unaccompanied minors – reception on return) Afghanistan [2005] UKAIT 00143, HK (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 315 and ZH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 470.
6. The claimant had lost only a possibility that family tracing might have produced different information and an earlier decision. That possibility did not amount to the prejudice required to justify departing from the present assessment. He was now an adult, had no present risk on return, and had no independent entitlement to remain.

The judgment describes an earlier determination of the First-tier Tribunal (Immigration and Asylum Chamber), promulgated on 17 May 2012, which dismissed the claimant’s appeal against refusal of asylum, humanitarian protection and Article 8 protection. There had been no appeal or challenge to those conclusions. The present judicial review claim challenged subsequent removal directions issued on 2 November 2012.