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

The corrective principle does not make every breach of a procedural duty decisive in an asylum case. The claimant must show a causal link between the breach and material disadvantage. The court then asks whether the resulting prejudice makes removal so unfair that no reasonable Secretary of State would proceed with it. A decision-maker may proceed on an assumption about an asserted fact without determining it, provided the relevant issue is addressed on that assumption. The absence of adequate reception arrangements for a child does not itself establish refugee status or make internal relocation unlawful. Age does not create a bright-line rule. A challenge to an earlier decision may also be refused where substantial delay would seriously damage good administration.

The claimant challenged removal directions issued on 5 April and 14 September 2012, and sought to challenge the defendant’s refusal of his first asylum application dated 3 January 2007. He had arrived in the United Kingdom as an unaccompanied minor from Afghanistan. He alleged that the defendant had breached regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 by failing to endeavour to trace his family, and that the breach had affected the asylum refusals and the assessment of internal relocation to Kabul. The issues were whether the breach caused material disadvantage, whether the corrective principle made removal unlawful, and whether the old refusal could properly be challenged.

1. The claims were dismissed. The removal directions issued on 5 April 2012 and 14 September 2012, and the first refusal dated 3 January 2007, were lawful.

2. The general rule from Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 is that an asylum claim is determined by the facts and circumstances prevailing at the time of decision. The corrective principle is an exceptional departure from that approach.

3. Applying Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744, KA (Afghanistan) and others v Secretary of State for the Home Department [2012] EWCA Civ 1014 and EU (Afghanistan) and others v Secretary of State for the Home Department [2013] EWCA Civ 32, a breach of the tracing duty is insufficient by itself. The claimant must establish that the breach caused material disadvantage.

4. Under the approach in R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 1643, the question was whether the past breach and resulting prejudice made removal so unfair that no reasonable Secretary of State would remove the claimant. The court accepted that no separate requirement of conspicuous unfairness arose, but held that causation remained essential.

5. The defendant had assessed internal relocation to Kabul on the assumption that the claimant had no family in Afghanistan. Earlier tracing would therefore not have altered the basis on which the relocation issue was decided. The same applied to Judge Dawson’s later assessment, which was found to have proceeded on the basis that the claimant could live in Kabul alone.

6. The absence of adequate reception, care and support arrangements under the relevant operational guidance did not establish refugee status. Nor did the claimant’s age create a bright-line rule making relocation automatically unsafe or unduly harsh. The conclusion that relocation to Kabul was available was therefore open to the defendant.

7. The challenge to the 2007 refusal was brought after substantial delay. Even if that refusal had been unlawful, relief would have been refused because quashing it would cause serious damage to good administration, with no satisfactory explanation for the delay.

First-instance judicial review proceedings. The judgment records earlier asylum refusals, an appeal dismissed by Immigration Judge Dawson on 13 July 2010, and refusal by the Upper Tribunal on 11 October 2012 to extend time for an appeal against that determination.