Immigration judges must assess whether an asylum seeker had a reasonable opportunity to claim asylum in a safe third country before holding that a failure to do so should damage their credibility, the Court of Appeal has ruled.

KA (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 914 concerns an unaccompanied child from Afghanistan who fled to the UK via Hungary, amongst other EU countries. He was fingerprinted by the Hungarian authorities but continued travelling to the UK.

Enter section 8(4) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It requires decision-makers to “take account, as damaging the claimant’s credibility”, of a failure to claim asylum while passing through a safe third country.

(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country.

The First-tier Tribunal decided that KA had not actually claimed asylum in Hungary and that this damaged his credibility. The Upper Tribunal went the other way, holding that KA had claimed asylum in Hungary, but that his failure to stay there and wait for the decision should be held against him.

Neither tribunal considered the possibility that he had no reasonable opportunity to claim asylum in Hungary. The Upper Tribunal making this error was particularly bad because it had been made aware of the decision in Ibrahimi & Abasi v SSHD [2016] EWHC 2049 (Admin), which held that there were systemic failings in the Hungarian asylum system.

Lord Justice McCombe was very critical of the tribunals’ failure:

In my judgment, the FTT analysis of this question, such as it was, was perfunctory. There was no attempt to look into KA’s circumstances in Hungary or in any of the “several safe third countries” to which reference was made but which remained unidentified… There is no consideration given to the realistic chances KA had to claim asylum in the other unidentified countries and over what period and in what circumstances. The reference to Turkey (not a statutory “safe” country) in that paragraph of the decision is opaque at best. Yet nonetheless the brief conclusion is reached that the failure to claim asylum earlier had damaged KA’s credibility.

There is another helpful passage at paragraph 47:

…it is clear that an unaccompanied minor (with no family connection in the EU) is entitled to make an asylum claim in any EU country without risk of being returned to the EU country in which he or she made his or her first footfall or his or her first asylum claim… In such a case, one might expect a decision maker not to be over-exacting in downgrading a child’s credibility for having failed to make earlier claims in other countries. In my judgment, the question of failure to make an earlier asylum claim might be thought to attract less adverse weight in the case of an unaccompanied minor than in other cases.

The judge also made a passing reference to other unreasonable aspects of the First-tier Tribunal’s decision — such as the suggestion that the appellant should, in the course of headlong flight from a midnight Taliban attack, have grabbed copies of the group’s threatening letters in order to serve them up as evidence in the UK years later.

This case should serve as a reminder to the tribunals to be cautious when finding that appellants should have claimed asylum elsewhere.