TN and MA v Secretary of State for the Home Department

An asylum appeal determines whether the applicant currently satisfies the criteria for refugee status or humanitarian protection. The tribunal must decide that question from the evidence available at the appellate hearing. Earlier administrative illegality creates no exception to that rule and does not justify a presumption of credibility or an award of protection as corrective relief.

A failure to perform the family-tracing duty may nevertheless affect the evidence. The tribunal may take account of an applicant’s willingness to identify sources of corroboration and may adjourn for tracing to occur. Officials must treat the child’s best interests as a primary consideration and consult the child before beginning tracing.

The appellants were Afghan nationals who entered the United Kingdom as unaccompanied minors and unsuccessfully claimed asylum. They received discretionary leave under the policy applicable to unaccompanied asylum-seeking children.

TN and MA contended that the absence of an immediate statutory asylum appeal denied them the effective remedy required by article 39 of the Procedures Directive. The appellants also argued that failures by the Secretary of State to endeavour to trace their families vitiated the asylum decisions, required a presumption that their accounts were credible, or justified asylum or unconditional leave as corrective relief.

TN and MA appealed from [2013] EWCA Civ 1609. AA’s related appeal, concerning family tracing, arose from [2013] EWCA Civ 1625. The central issues were the effectiveness of the appellate scheme and the legal consequences of a breach of the family-tracing duty.

1. The appeals were dismissed unanimously. Lord Toulson gave the judgment, with which Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agreed.

2. The statutory appellate scheme provided an effective remedy for the purposes of article 39 of the Procedures Directive. An unsuccessful asylum applicant granted discretionary leave for only a short period could appeal when a later immigration decision exposed the applicant to removal. The brief deferment was justified by the need to avoid unnecessary duplication where the Secretary of State would shortly reconsider the case. It was unnecessary to decide whether judicial review independently cured any deficiency in the scheme.

3. The principle in Ravichandran was sound and applied without exception. An asylum appeal concerns present status: whether the applicant currently satisfies the Refugee Convention criteria or requires humanitarian protection. The tribunal must therefore determine the appeal from the evidence and circumstances existing when it decides the case.

4. The corrective exception associated with Rashid lacked a satisfactory principle and should no longer be followed. Refugee status cannot be conferred to compensate for an earlier administrative wrong when the applicant has no present need for protection. Nor may a court require unconditional discretionary leave as a sanction for a past breach when current policy or another existing right does not entitle the applicant to remain. The discretion to grant such leave belongs to the Secretary of State.

5. Section 55 of the Borders, Citizenship and Immigration Act 2009 requires officials to treat a child’s best interests as a primary consideration. Those interests provide the rationale for regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005. Before tracing begins, the child must be properly consulted about their wishes because tracing may endanger or otherwise affect the child, relatives or others.

6. A breach of the tracing duty does not create a presumption that the applicant is credible and does not itself establish entitlement to protection. An applicant who believes that the breach has caused prejudice may request tracing and seek an adjournment. The tribunal must still decide credibility from the evidence before it. Willingness to identify possible sources of corroboration may count in the applicant’s favour as an evidential matter.

7. MA’s and AA’s accounts had permissibly been disbelieved on the available evidence, and neither supplied information from which their families could be traced. TN’s claim remained for redetermination by the Secretary of State following its earlier remission by the Upper Tribunal.

1. United Kingdom Supreme Court: Dismissed the conjoined appeals in [2015] UKSC 40.

2. Court of Appeal: In TN’s and MA’s cases, dismissed their appeals in [2013] EWCA Civ 1609, reported at [2014] 1 WLR 2095. In AA’s case, dismissed the appeal concerning family tracing in [2013] EWCA Civ 1625.

3. Upper Tribunal: Set aside the First-tier Tribunal’s determination in TN’s case and required the Secretary of State to take a fresh decision. It dismissed MA’s and AA’s protection appeals after rejecting their accounts.

4. First-tier Tribunal: Dismissed the protection appeals after adverse credibility findings.