SHL v Secretary of State for the Home Department

A failure by the Secretary of State to comply with the family-tracing duty in Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 does not, without more, invalidate an asylum decision. The Tribunal must assess the practical consequences of the breach in the facts of the individual case. The claimant remains required to establish a proper basis for protection or other relief.

The tracing duty may be material to the assessment of a child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009, particularly where missing evidence could bear on family support on return. An unincorporated treaty, including the Trafficking Convention, creates no freestanding domestic right of appeal. A challenge to a trafficking decision lies by judicial review, not through an immigration appeal.

SHL v Secretary of State for the Home Department concerned an Afghan national who arrived in the United Kingdom as an unaccompanied child and claimed asylum. He alleged a risk of Taliban recruitment and had also been subjected to forced labour by an agent after his arrival.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal set that decision aside on 3 January 2012 because of errors concerning the tracing duty, section 55, burden of proof and unsupported findings. The Upper Tribunal then re-made the decision on the papers after the appellant twice failed to attend the resumed hearing.

The central issues were whether the appellant faced a real risk of persecution or serious harm on return, what consequence followed from the failure to trace his family, and whether the Tribunal could entertain his challenge to the separate trafficking decision.

1. Appeal dismissed on all grounds. The Tribunal accepted the essential core of the appellant’s account, including that he had been trafficked into forced labour in the United Kingdom. It nevertheless found that he had not established a well-founded fear of persecution or a real risk of serious harm on return to Afghanistan.

2. The appellant had no personal profile making him of specific interest to the Taliban. Any possible interest arose only from his age and sex. He could relocate away from his former village and could be returned to Kabul. Applying AK (Afghanistan) v Secretary of State for the Home Department, [2012] UKUT 00163 (IAC), and taking account of H and B v United Kingdom, the Tribunal held that the general violence did not establish the required risk. The asylum, humanitarian protection and Articles 2 and 3 claims therefore failed.

3. The Secretary of State had breached Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 by failing to use reasonable endeavours to trace the appellant’s family. That breach may prevent a proper assessment of a child’s best interests under section 55 of the Borders, Citizenship and Immigration Act 2009. However, it does not itself vitiate an asylum decision or compel relief. Its consequences must be evaluated fact-sensitively, and the claimant retains the burden of showing a causal disadvantage relevant to protection or other relief.

4. Here, the absence of tracing evidence neither established nor reinforced the appellant’s protection case. The Tribunal found no settled family unit to which he would return, doubted that further contact with his relatives was impossible, and considered that he would in any event relocate elsewhere in Afghanistan.

5. There was no right of appeal under Part V of the Nationality, Immigration and Asylum Act 2002 against the separate trafficking decision. The Trafficking Convention was unincorporated and could not create freestanding domestic rights or grounds of appeal. Any challenge to that decision lay, if at all, by judicial review.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the decision after setting aside the First-tier Tribunal’s determination on 3 January 2012. This appeal was dismissed on all grounds.
• First-tier Tribunal: Dismissed the appellant’s appeal on 6 July 2011. Its decision was set aside by the Upper Tribunal for errors concerning Regulation 6, section 55 of the Borders, Citizenship and Immigration Act 2009, burden of proof and unsupported findings.
• Secretary of State: Refused asylum, humanitarian protection and relief under Articles 2, 3 and 8 ECHR on 5 April 2011, while granting discretionary leave until 1 July 2012.