KA (Afghanistan) v Secretary of State for the Home Department

Section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires an assessment of whether a claimant failed to take advantage of an objectively reasonable opportunity to claim asylum in a safe country. Mere presence in a country designated as safe is insufficient. The decision-maker must examine the claimant’s actual circumstances, including the conditions and asylum procedures in that country, the circumstances of transit, and the claimant’s age and vulnerability.

For an unaccompanied minor, an earlier failure to claim asylum may carry less adverse weight. An erroneous section 8(4) assessment can make otherwise adverse credibility findings unsafe and require remittal.

KA, an Afghan national who arrived in the United Kingdom as an unaccompanied minor, appealed against the refusal of his asylum and human rights claims. The First-tier Tribunal dismissed his appeal, finding his account of Taliban threats and the disappearance of his family lacked credibility. It also treated his failure to claim asylum earlier, including in Hungary, as damaging to credibility and rejected his case on internal relocation and risk.

The Upper Tribunal dismissed his appeal. It accepted that the First-tier Tribunal had erred by assessing the position on a hypothetical return after KA became an adult, but considered that error immaterial. Before the Court of Appeal, the issues included the treatment of KA’s age and vulnerability, the application of section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and compatibility with Article 8.4 of the Dublin III Regulation 604/2013.

Appeal allowed. McCombe LJ gave the leading judgment, with Lindblom and Flaux LJJ agreeing. The matter was remitted to a differently constituted First-tier Tribunal.

1. Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 requires behaviour within the statutory categories to be taken into account when assessing credibility, but does not make adverse weight automatic. The weight remains a matter for the fact-finder, as reflected in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878.
2. Under section 8(4), the question is whether the claimant failed to take advantage of a reasonable opportunity to make an asylum or human rights claim in a safe country. Although Hungary and France were designated safe countries by statute, that status did not establish that KA had a reasonable opportunity to claim asylum there. The decision-maker had to examine his circumstances, the realistic opportunity to make an effective claim, the duration and circumstances of his presence or transit, and relevant conditions in the country.
3. The First-tier Tribunal’s analysis was perfunctory. It did not examine KA’s circumstances in Hungary or the other unidentified countries through which he had travelled. It treated the statutory safe-country designation as coming close to establishing the relevant failure, and its reference to Turkey was unclear. R (Ibrahimi) v Secretary of State for the Home Department [2016] EWHC 2049 (Admin) was relevant because its analysis of Hungary extended beyond chain refoulement to the operation of an asylum regime designed to deter immigrants and weaken judicial supervision.
4. In the case of an unaccompanied minor, the failure to make an earlier asylum claim may attract less adverse weight. The inquiry is objective and does not depend on the child’s supposed knowledge of English case law. The Dublin III Regulation 604/2013 did not prevent a tribunal from considering an earlier failure where a reasonable opportunity genuinely existed, although it did not make section 8(4) incompatible with the Regulation.
5. The challenge based solely on the First-tier Tribunal’s treatment of vulnerability failed. The Tribunal had sufficiently taken account of KA’s age, and his representatives had not identified further vulnerability-related measures or explained the decision not to call him. However, the erroneous section 8(4) assessment materially affected the credibility evaluation. It was therefore unsafe to dismiss the appeal on the basis that other aspects of KA’s account appeared implausible.

1. Court of Appeal (Civil Division): Allowed the appeal in [2019] EWCA Civ 914 and remitted the matter to a differently constituted First-tier Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): On 24 May 2017, dismissed KA’s appeal against the First-tier Tribunal’s decision, treating the error concerning his age on return as immaterial.
3. First-tier Tribunal (Immigration and Asylum Chamber): On 25 October 2016, dismissed KA’s appeal against the respondent’s refusal of asylum and human rights protection.