JS v The Secretary of State for the Home Department

Support provided to an unaccompanied asylum-seeking child by a local authority, including support continuing after majority, does not itself determine immigration status. It may, however, provide evidence relevant to humanitarian protection or to the strength of private life under Article 8.

A failure to endeavour to trace family members is material after the appellant reaches adulthood only where a causal link is shown between that failure and an issue decisive of the immigration appeal. The best durable solution for a child will ordinarily be family reunification, but the relevant assessment after majority is whether return exposes the person to serious harm or produces a disproportionate interference with private and family life. That assessment must consider individual vulnerability and the availability of adult support on return.

The appellant, a citizen of Afghanistan, entered the United Kingdom in 2009 as an unaccompanied young person and claimed asylum. He received discretionary leave and was accommodated and supported by a local authority. His further application for leave was refused.

The First-tier Tribunal dismissed his asylum and human-rights appeal. The Upper Tribunal held that the First-tier Tribunal had erred by failing to determine humanitarian protection and by inadequately addressing the effect of the failure to endeavour to trace family members and the Article 8 claim. It preserved the adverse credibility findings concerning the appellant's account of his family and events in Afghanistan, reheard the outstanding issues, and considered whether return to Afghanistan would breach humanitarian-protection obligations or Article 8.

1. Appeal dismissed. The Upper Tribunal set aside the First-tier Tribunal's decision on humanitarian protection and Article 8, re-made those parts of the decision, and dismissed the appeal.

2. Local-authority duties owed to an unaccompanied child, and continuing duties owed to a former relevant child, do not determine whether leave to remain should be granted. Those duties and any pathway plan may nonetheless be evidence bearing on whether the Immigration Rules are met or whether removal unjustifiably interferes with private life.

3. For an unaccompanied child, family reunification will normally be the best durable solution. If reunion is impossible and there are no adequate reception facilities, discretionary leave during minority followed by return may be appropriate. A host-state solution may be required where the child arrived young, cannot be reunited with family, and will spend many years in the host state. Once the appellant is no longer a minor, however, the distinct duty under Borders Citizenship and Immigration Act 1999 section 55 no longer applies.

4. The failure to endeavour to trace family members under the relevant reception provisions did not assist this appellant. Its relevance depended on a causal link to an issue in the appeal. The preserved findings rejected his account that his parents had been killed, he had declined tracing of siblings, and he had not supplied reliable information enabling useful inquiries. The failure had not caused the loss of relevant evidence or materially affected his family life.

5. Applying the country guidance in AK (Article 15(c)) Afghanistan CG, the Tribunal found no evidential basis for concluding that violence in Nangarhar met the Article 15(c) threshold. Return would in any event be to Kabul. The appellant was a capable young adult without a relevant physical or psychological vulnerability and had not shown that he lacked family or other support. He was therefore not a young unattended adult facing a real risk of serious harm.

6. Removal engaged Article 8(1), but was lawful, pursued a legitimate aim, and was proportionate under Article 8(2). Four years' residence from age 15 to 19, temporary foster care, and unsubstantiated relationship evidence did not establish sufficiently strong ties to outweigh immigration control.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal found a material error of law in the First-tier Tribunal's failure to determine humanitarian protection and in its treatment of tracing and Article 8. It re-made the decision and dismissed the appeal on humanitarian-protection and human-rights grounds.
• First-tier Tribunal: By a determination issued on 22 November 2012, it dismissed the appellant's appeal against the refusal of further leave to remain.