AZ v Secretary of State for the Home Department

A failure by the Secretary of State to endeavour to trace an unaccompanied asylum-seeking child’s family does not itself establish an error of law in the dismissal of an asylum appeal. The appellant must show a causative disadvantage, assessed in the light of the tribunal’s sustainable findings on credibility, family contact and support on return.

Being told that a claim is under the asylum legacy process does not prevent an ordinary immigration decision from resolving the claim. It creates no entitlement to a grant of leave, and does not require the Tribunal to adjourn an appeal pending a legacy decision. A removal decision made simultaneously with a refusal to vary leave under Immigration, Asylum and Nationality Act 2006, section 47, is not in accordance with the law.

The Afghan appellant claimed asylum as an unaccompanied minor in 2007. His claim was refused in 2009, but he received discretionary leave. In 2011 he applied for further leave to remain. The Secretary of State refused that application and, at the same time, made a removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006.

The First-tier Tribunal dismissed his appeal on asylum, humanitarian protection and human-rights grounds. It rejected his account that he had lost contact with his family and found that family support would be available on return to Afghanistan. On appeal, he relied on the unperformed tracing duty and on a 2010 letter stating that his case was being considered under the legacy process. The central issues were whether either matter disclosed an error of law, and whether the section 47 removal decision was valid.

1. The appeal was allowed only in respect of the removal decision. The First-tier Tribunal’s dismissal of the appeal against refusal to vary leave, on asylum, humanitarian protection and human-rights grounds, stood. The concurrent removal decision under section 47 of the Immigration, Asylum and Nationality Act 2006 was set aside as not in accordance with the law.

2. The Secretary of State had failed to fulfil the duty in regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace the family of an unaccompanied minor. However, the failure caused no material disadvantage. The First-tier Tribunal’s findings that the appellant remained in contact with, and could obtain support from, family in Afghanistan were sustainable. In that factual setting there was no causative link between the tracing failure and any need for protection, whether considered under article 8 or otherwise.

3. The appellant’s age on reaching 18 did not create a decisive threshold. The approach in EU (Afghanistan) [2013] EWCA Civ 32 required a fact-specific assessment. The appellant had reached 18 by the First-tier Tribunal hearing and was found to have family support on return.

4. The 2010 legacy letter showed that the case had at one time been included in that process. It did not bar substantive consideration of the later application for leave, render the refusal unlawful, or give rise to a legitimate expectation that leave would be granted. There was accordingly no obligation to adjourn the appeal for a legacy decision.

5. Applying Ahmadi (s.47 decision: validity; Sapkota) [2012] UKUT 00147 (IAC), a section 47 removal decision could not lawfully be made at the same time as the decision refusing to vary leave. The appeal was allowed to that limited extent.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal only against the section 47 removal decision; otherwise upheld the First-tier Tribunal’s dismissal.

• First-tier Tribunal: Dismissed the appellant’s appeal on asylum and human-rights grounds. Its decision is not separately cited in the judgment.