RS (Afghanistan) v The Secretary of State for the Home Department

Adulthood is not an automatic boundary in assessing risk or private-life circumstances in an asylum appeal. The decision-maker must consider the evidence in the round, including maturity, capabilities, relationships and independence. An appellate tribunal should not speculate about prejudice arising from an earlier procedural failure without supporting evidence. It should determine the appeal on the facts and circumstances existing at the hearing, save in highly exceptional cases. A delay or earlier error does not itself create a separate requirement to reconstruct hypothetical outcomes.

The appellant, an Afghan national who arrived in the United Kingdom as an unaccompanied child, was granted discretionary leave and later sought an extension based on his fear of return. The Secretary of State refused the application.

The First-tier Tribunal dismissed his appeal on 10 March 2010. Permission to appeal was granted because the appellant had not been given an adjournment to obtain legal representation. The decision was set aside, and the Upper Tribunal remade the decision and dismissed the appeal on 14 October 2010.

Before the Court of Appeal, the appellant argued that the Upper Tribunal had treated adulthood as a bright line and had failed to address historic unfairness arising from the Secretary of State’s alleged failure to trace his family under the Asylum Seekers (Reception Conditions) Regulations 2005, together with the earlier failure to adjourn. The central issue was whether those matters disclosed an error of law.

Appeal dismissed. Sir Stanley Burnton gave the judgment. Lord Justice Underhill and Lord Justice McCombe agreed.

1. The Upper Tribunal had not treated the appellant’s attainment of adulthood as a decisive bright line. It considered his personality, capabilities, personal relationships and private life in the round. It also took account of evidence that he might not have reached adult maturity, while considering his independence, schooling and acquired skills. The assessment of his circumstances on return therefore disclosed no legal error.
2. The arguments concerning the failure to trace the appellant’s family and the earlier failure to adjourn had not been advanced before the Senior Immigration Judge. That judge had not considered their consequences. For that reason, the appeal could not properly be allowed on those grounds.
3. There was no evidence that the alleged failure to trace caused prejudice. The Senior Immigration Judge had proceeded on the basis that the appellant had no family in Kabul. If family had been found, that would have weakened the claim to remain; if tracing had failed, the appellant would have been in the same position. The tribunal should not speculate about the consequences of a failure to trace without appropriate evidence.
4. The earlier failure to adjourn was a regrettable but unexceptional error of law, not a distinct historic injustice requiring a hypothetical reconstruction of the case. The tribunal’s duty was to determine the appeal on the facts and circumstances existing at the hearing, assuming no significant intervening change. Save in highly exceptional cases, the Upper Tribunal was not required to speculate about what might have happened had an earlier decision been different. The delay had in any event allowed the appellant’s private life in the United Kingdom to develop further.

The Senior Immigration Judge’s comprehensive determination disclosed no legal error.

1. Court of Appeal (Civil Division): In [2016] EWCA Civ 1179, the appeal from the Upper Tribunal was dismissed.
2. Upper Tribunal (Asylum and Immigration Chamber): Senior Immigration Judge Grubb remade the decision and dismissed the appellant’s appeal on 14 October 2010.
3. First-tier Tribunal: The appellant’s appeal against the refusal of leave was dismissed on 10 March 2010. The decision was later set aside after permission to appeal was granted on the adjournment issue.