Like me, readers may have detected some uncertainty from the First-tier and Upper Tribunals about how best to determine claims of former UASCs from Afghanistan in light of EU and others (Afghanistan).   In EU the Court of Appeal, Sir Stanley Burnton giving the only substantive judgement, determined the individual claimants’ appeals from KA (Afghanistan) and in doing so closed off avenues of redress which had briefly seemed possible following KA.

My post on KA had been optimistically entitled ‘A significant step forward for young asylum seekers’ and in many ways this was true.   During the few months between KA and EU, those of us representing Afghanistan nationals around the age of 18 delighted in witnessing Tribunals (with a few shocking exceptions) directing Home Office Presenting Officers to explain what the Secretary of State had actually done to comply with her statutory obligations to trace minors’ families. This wasn’t merely schadenfreude on our part as we watched HOPOs squirm in the Tribunal’s grubby blue seats, rather we felt vindicated by being possessed of solid legal authority with which we could legitimately demand answers.

Those answers when they came were invariably that the Secretary of State had done nothing, absolutely nothing, to assist UASCs to trace their families.  Consequently, applying KA, it was possible to argue that the particular UASC had lost the chance of putting before the Tribunal the ‘best evidence’ of being unable to trace his or her family.    How, it was rightly asked, could a child be expected to find his or her family when even the government was unable to?      It happened that claims were being remitted back to the Secretary of State for consideration of whether the Rashid ‘corrective and protective principle’ should be applied.   Perfectly proper, one would think, particularly given the subject matter.

In EU, Sir Stanley effectively shuts the door on Rashid being used unless it is shown that on the particular facts there is causative link between the Secretary of State’s breach of duty and the claimant’s claim to protection.  He considers the ‘protective principle’ to be a ‘misnomer’ as ‘the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection’ and none of the appellants in EU had been found to be in need of protection by the Tribunals.  You can already probably see where this one was going…  Yes, Sir Stanley dismissed the appeals of all 6 appellants:

• AK had been unable to provide details of the whereabouts of his family when he had completed his Statement of Evidence Form.  The Tribunal had found that he had been provided with the details of organisations which could assist him in tracing his family but he had not been interested in doing so.   Sir Stanley stated that ‘it was indeed difficult to see what could have been done by the Secretary of State if she had endeavoured to trace his family on the basis of the information he had given.’
• AR had returned to Afghanistan by the time of the appeal before the Court of Appeal.
• EU’s entire claim had been found to have been fabricated (including his attempts at tracing) and he could not establish the necessary causative link between the Secretary of State’s failure and his claim to remain in the country.
• SU’s evidence of being unable to trace his family had not been found credible by the Tribunals.   The arguments that Rashid should be applied on the basis that, had the Secretary of State endeavoured to trace his family he may have been able to show that his evidence on this issue was credible, was rejected as they ‘…failed to take into account the finding that the claim to have lost contact was incredible’.
• In FU’s case, the Tribunal again did not believe that he was unable to trace his family in Kabul and the Secretary of State’s failure to trace was immaterial.
• QA had refused to undertake tracing enquiries himself as he feared that Western organisations’ involvement on the ground in Afghanistan may place his mother at risk. Given his refusal it was ‘impossible to see that the Secretary of State’s duty to endeavour to trace is relevant to his case’.

EU, in its conclusions and indeed its tone, is a very negative judgement.  However, having said that, I think that it may be relatively easy to persuade Tribunals that it is, in fact, very narrow in its scope.  Three points jump to mind:

(1)  It is only authority on the application of Rashid and nothing else.

(2)  The appellants in EU had already had their appeals determined and had all been found to be not credible. Whereas Tribunals confronted with post-EU UASCs, who are now adults, arguing that Rashid should apply to them will have yet in many cases to go through this fact-finding exercise.  Put in another way, for those seeking to establish the so- called ‘causative link’ between the Secretary of State’s failure (not difficult in most cases) and their need for protection, the protection issue is still a live one and the particular evidence of the whereabouts of family members willing and able to provide protection for them has to be determined alongside all other issues.

(3)  The Secretary of State’s legal duty to trace remains untouched by the judgement.

In respect of (2), I admit to always feeling very uncomfortable with the way that former UASCs are put to proof on any historic and current failure to have contact with family members.  Particularly, when they are unlikely to have been responsible for the absence of evidence on this issue.   It seems to me that the current approach to tracing all too often risks displacing the focus from what should be the State’s responsibilities towards a child, residing in a foreign country and very likely cared for by foster carers, and wrapping this up in the usual scepticism expressed towards asylum seekers.  If an equivalent situation arose for a child in care (British or otherwise), I am not sure that the Court and Tribunals would be so quick to absolve the responsible local authority in the manner than the Secretary of State seems to have been in so many of these cases. Another reason for any purported lack of evidence of attempts to trace family members stretching back from the time of arrival in the United Kingdom could well be that the particular UASC believed that establishing contact was peripheral or even wholly irrelevant to the reasons why they had claimed asylum many years earlier.   It probably was completely irrelevant.

Saying all of this and despite the Secretary of State’s duties, evidence of attempts to trace from UASCs themselves is still something that the Tribunals will expect to see.

There are some other points about the judgements which are comment worthy.  On a positive note, the judgement reaffirms and perhaps extends that which was said in KA about there being no ‘bright line’ once the age of 18 is reached as the question is one of risk on account of ‘apparent or assumed age’ and not the actual date of birth.   At paragraph 9, Sir Stanley makes the valid point that given the vast majority of UASCs have been age-assessed and given that a date of birth is as an administrative formality, ‘the origin of the precise date of birth is a further reason why the achievement of adulthood cannot of itself necessarily change the assessment of risk on return’.

On the downside, I am dreading the time when a Home Office Presenting Officer seeks to rely upon the objectionable and quite unnecessary recital of a submission made by the Secretary of State’s counsel, Mr Jonathan Hall, at paragraph 10 of the judgement concerning the parents of UASCs being unlikely to cooperate with any tracing agent of the Secretary of State less they would ‘waste their investment’ in their children.   There are so many things I could say in response to this but it wouldn’t be pretty.