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

A breach of the duty to endeavour to trace an unaccompanied asylum-seeking child’s family does not, by itself, require removal directions to be reconsidered. The claimant must establish a causative link between the breach and a serious or material disadvantage in the asylum or protection claim. Where credibility findings independently defeat the claim, and lawful findings establish safe and reasonable internal relocation, a lost opportunity for family tracing may not amount to material disadvantage. The assessment of risk is qualitative and is not governed by a bright line at the claimant’s eighteenth birthday. The principle of corrective relief is unavailable where the breach could not have affected the outcome. The judicial review claim was dismissed.

The claimant, an Afghan national and failed asylum seeker, challenged removal directions to Afghanistan. The Secretary of State admitted breaching the duty to endeavour to trace his family under the Asylum Seekers (Reception Conditions) Regulations 2005. The claimant argued that the breach caused material disadvantage in his asylum claim, involved a failure to comply with the duty under section 55 of the Borders Citizenship and Immigration Act 2009, and required corrective relief.

Earlier decisions had rejected his account of persecution, found him not credible, and concluded that he could safely and reasonably relocate internally to Kabul. The central issue was whether the admitted tracing breach caused a serious or material disadvantage capable of making the removal decision unlawful.

1. Claim dismissed. The admitted failure to endeavour to trace the claimant’s family did not establish unlawful removal directions or justify corrective relief.
2. The relevant question was whether the breach caused a serious or material disadvantage. The claimant retained the evidential burden of establishing a real risk of persecution. His account had been disbelieved on three occasions, including because documentary evidence placed him in Greece when the alleged killings in Afghanistan were said to have occurred. That credibility finding independently undermined the claimed risk.
3. The approach in KA (Afghanistan) v Secretary of State for the Home Department (2012) EWCA (Civ) 1014 required attention to the factual spectrum in each case. The claimant fell at the adverse end of that spectrum because his fabricated account could not be treated as cooperation with tracing inquiries. The tracing breach therefore did not create a causative link to material disadvantage.
4. The claimant could internally relocate to Kabul on findings made by the First-tier Tribunal and not challenged on appeal. The fact that he was approaching eighteen did not create a bright-line rule. Risk and the feasibility of relocation required a qualitative assessment taking account of age, health and the particular risks identified. EU v Secretary of State for the Home Department (2013) EWCA Civ 32 did not alter the law on internal relocation.
5. The claimant had lost an opportunity for family inquiries, but that opportunity was not going to affect the credibility findings or the assessment that adequate reception facilities might be available through extended family. Loss of an ineffective opportunity was not serious or material disadvantage. Section 55 raised no additional issue, and there was no basis to invoke corrective justice.

The judgment is a first-instance judicial review decision. The proceedings had been stayed pending the Court of Appeal’s decision in KA (Afghanistan) v Secretary of State for the Home Department (2012) EWCA (Civ) 1014. The present claim was then dismissed.