ST (Sri Lanka) (A minor) v The Secretary of State for the Home Department

An appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 concerns refugee status or humanitarian protection only. It must be determined by assessing a hypothetical return at the date of the hearing. It does not permit freestanding challenges based on Article 8, section 55 welfare duties, or the adequacy of proposed reception arrangements.

A child’s best interests remain relevant where they illuminate risk of persecution or serious harm. A child who faces a real risk of trafficking or sexual abuse may qualify for international protection, but the risk must have a reasonable degree of likelihood and, where harm is from non-state actors, insufficient state protection must be established. Before departing from a favourable Home Office credibility assessment, a judge must alert the child’s representatives and allow them to respond.

ST (Sri Lanka) (A minor) v The Secretary of State for the Home Department concerned a Tamil child from Sri Lanka whose asylum claim had been refused, although he had received discretionary leave as an unaccompanied child.

The First-tier Tribunal dismissed his appeal after treating it as an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. It rejected his account, considered future return arrangements and Article 8, and found no risk of persecution or serious harm.

The child appealed to the Upper Tribunal. The principal issues were the restricted scope of a section 83 appeal, the material date for assessing risk, procedural fairness in revisiting credibility, the propriety of taking evidence from a young child, and whether hypothetical present return to Sri Lanka exposed him to a real risk of sexual abuse or trafficking.

1. Appeal dismissed after re-making the decision. The First-tier Tribunal’s decision contained material errors of law and was set aside in its entirety. The Upper Tribunal nevertheless re-made the decision and dismissed the section 83 appeal.

2. A section 83 appeal concerns whether the claimant has refugee status or is entitled to humanitarian protection. It is not an appeal against an immigration decision under section 82. The Tribunal therefore had no jurisdiction to determine an independent Article 8 claim, compliance with section 55 duties, or whether proposed reception arrangements would serve the child’s best interests: [12]–[26].

3. The assessment is made on the hypothesis that the claimant is returned at the date of the appeal hearing. A grant of temporary discretionary leave cannot avoid recognition of refugee status if the criteria are then met: [27]–[29].

4. The First-tier Tribunal acted unfairly by rejecting credibility without alerting the representatives to concerns, despite the Home Office having accepted the essential account. It also erred by dispensing with the child’s interpreter before assessing his evidence. A child under 12 should not ordinarily be required to give contentious evidence unless it is necessary for a fair hearing and his welfare will not be prejudiced; the judge must consider representations from advocates and the responsible adult: [30]–[40].

5. The Tribunal accepted that trafficking or sexual abuse of a child can amount to serious harm and persecution because of membership of a particular social group. But social-group persecution and adequacy of state protection depend on the social context and the evidence. State protection need be reasonable, not wholly effective: [65]–[70].

6. On the assumed facts, the risk to S was speculative and remote. He was not orphaned or abandoned, had a maternal grandmother and relatives able to assist, and did not fit the profile of the most vulnerable children. Sri Lankan authorities and organisations were taking measures against abuse and could provide support if family care were not feasible. There were consequently no substantial grounds for fearing a real risk of serious harm under Article 15(b) of the Qualification Directive: [71]–[81].

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on error of law, set aside the First-tier Tribunal’s decision, then re-made the decision and dismissed the section 83 appeal: [2013] UKUT 292 (IAC).

• First-tier Tribunal: Dismissed the child’s appeal against refusal of asylum and humanitarian protection. Its decision was set aside for material errors of law.