Hashemi, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber) & Anor

An asylum claim must be assessed by reference to circumstances existing when it is decided. A past unlawful failure by the Secretary of State is relevant only where it causes current disadvantage which must be addressed to avoid unfairness. The court will intervene only on traditional public law grounds, and relief is normally remittal unless the decision could properly have been made only one way.

A failure to trace an unaccompanied minor’s family does not automatically confer leave to remain. The claimant must establish material disadvantage. A delay in deciding an asylum claim is not unlawful merely because the claimant reaches adulthood before the decision, where domestic and European law impose no rigid decision period and an effective remedy remains available.

The claimant, an Afghan national who arrived in the United Kingdom as an unaccompanied minor, made an initial asylum claim which was refused. He did not appeal and received discretionary leave under the Unaccompanied Asylum Seeker Child Policy. He later made a second asylum claim, which was refused after he had turned 18. His appeal was dismissed and the Upper Tribunal refused permission to appeal.

He sought judicial review of that refusal, alleging failures to trace his family and to provide an effective remedy while he was a child. He also challenged his removal, arguing that the Secretary of State had made no valid decision to remove him under section 10 of the Immigration and Asylum Act 1999.

1. The claim was dismissed. The challenges to the Upper Tribunal’s refusal of permission were subject to the second-tier test in R (Cart) v Upper Tribunal [2011] UKSC 28.
2. The Secretary of State owed a duty under article 19(3) of the Reception Directive and regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace the family of an unaccompanied minor. The First-tier Tribunal had not applied the later guidance in KA (Afghanistan) and Others v Secretary of State for the Home Department [2012] EWCA Civ 1014; [2013] 1 WLR 615 and EU (Afghanistan) and Others v Secretary of State for the Home Department [2013] EWCA Civ 32. That error was immaterial. On the available information, tracing was practically impossible and would not have produced information capable of assisting the claim.
3. The principles concerning past unlawful conduct in R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744; [2005] Imm AR 608 did not assist. The claimant had suffered no substantial current disadvantage. In any event, the decision-maker, not the court, determines the weight to be given to a relevant factor.
4. The claimant’s asylum claim had to be determined on the circumstances existing at the date of decision, consistently with R v Secretary of State for the Home Department ex parte Ravichandran [1996] Imm AR 97. His reaching 18 before decision did not create a right to determination on a notional child basis. The European directives did not impose a rigid time limit, and the available appeal and judicial review mechanisms provided an effective remedy.
5. The section 47 removal decision was ineffective or challengeable under Ahmadi (s47 decision: validity: Sapkota) [2012] UKUT 147 (IAC) and Secretary of State for Justice v Ahmadi [2013] EWCA Civ 512. However, the complaint was in substance a challenge to the refusal of permission to appeal. The claimant had raised no such ground before the Upper Tribunal, had suffered no injustice or disadvantage, and discretionary relief would in any event have been refused.

This was a first-instance judicial review claim. The First-tier Tribunal dismissed the claimant’s appeal against refusal of his immigration application and removal decision. The Upper Tribunal refused permission to appeal. The Administrative Court dismissed the judicial review claim.