The Court of Appeal’s judgement in KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014 makes it absolutely clear that the Secretary of State’s duty toward unaccompanied minors, in particular her duty to trace family members, is not discharged by giving them leave until they reach 17½ and pointing them in the direction of the Red Cross’s offices. The judgment goes much further than this, though, and is required reading for all of us happily involved in representing the young.

The facts were straightforward. The eight appellants had arrived from Afghanistan as unaccompanied minors and were at that time aged between 15 and 16. The Home Office refused their asylum claims but granted each of them Discretionary Leave until they reached 17½. Just before their leave expired, each made applications for further leave. All of their appeals before the First-tier Tribunal were dismissed. By the time their appeals reached the Upper Tribunal they had all reached 18. The Upper Tribunal approached the assessment of risk on return on the basis of the facts as at the time of the hearing before it, that is, assessing risk for appellants as ‘adults’. The claims all failed on this analysis [para.1 of judgment].

On appeal to the Court of Appeal the Court considered whether the consideration of the appellants’ claims as unaccompanied minors who had reached majority by the time their appeals came before the courts should fall outside the Ravichandran [1996] Imm AR 97 principle, which is that issues of asylum and human rights are to be decided on the facts and circumstances prevailing at the date of the hearing itself [para.2]. This would entail a consideration of whether the so-called Rashid [2005] INLR 550 principle applied to the appellants’ cases. If it did, then exceptionally the appellants would not be subject to the strict application of Ravichandran [para.17].

Rashid concerned an Iraqi national who had at the time his asylum claim was made should have had the benefit of a policy but in fact the policy had not been applied to his case. By the time his appeal against the refusal of asylum reached the tribunal the policy had been withdrawn. The Court of Appeal decided that there had been such unfairness caused to the appellant by reason of the SSHD’s failure to apply the policy that it would itself correct the error. It directed that the SSHD grant him indefinite leave to remain [paras. 9-10]. The reasoning in Rashid was closely examined in the later case of R (S) [2007] EWCA Civ 546. The delay in the SSHD considering S’s claim was so long that by the time a decision was reached S could not benefit from a policy granting him four years Exceptional Leave to Remain as it had by then been withdrawn. The Court in R (S), whilst doubting the correctness of the reasoning in Rashid, emphasised that the power to correct past illegality by the SSHD did not conflict with the Ravichandran principle as:

‘…it respects the SSHD decision should be made on the basis of present circumstances (b)ut it recognised that those circumstances might include the present need to remedy injustice caused by past illegality’ [para.12].

The relief sought by the appellants in KA therefore was for the Court of Appeal to find that the Rashid principle applied to their circumstances so that their appeals should be allowed and remitted to SSHD to consider granting them an appropriate period of leave to remain [para.17]. The ‘past illegality’ complained of can be found in the excellent arguments advanced on behalf of the appellants:

i. The SSHD had a statutory duty to trace each of the appellants’ families at the time they claimed asylum, that duty being derived from Article 19.3 of EC Council Directive 2003/9/EC [para.3] which had been transposed into UK law in the Asylum Seekers (Reception Conditions) Regulations 2005 (SI/2005/7) [para.4]. Had the SSHD fulfilled its duty then the appellants could have made good their claim to have had no family support in Afghanistan which is a very important element of the claims of unaccompanied minors from Afghanistan [para.5];

ii. The SSHD’s failure to comply with its duty was ‘..deliberate and systematic’ [para.16].

iii. The SSHD’s failure to discharge the duty to trace may have deprived the applicants of the best evidence with which to prove their case, that evidence being that despite the SSHD’s best efforts, the applicants’ family could not be traced and therefore there will be no family left in Afghanistan able to receive or to protect them [paras.19-21].

iv. Whilst the Upper Tribunal considered their appeals when all had reached majority, the Courts recognised a power to correct historical errors [para.6/7];

v. There is no ‘bright line’ or dateline which when crossed by the appellants reaching 18 years of age means that the risks to children suddenly disappear [7];

vi. Both the SSHD and the First-tier Tribunal had failed to discharge their duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the appellants’ best interests [para.8].

The Court considered the application of the Rashid to KA in the following way: The first question was whether the SSHD had discharged its duty to trace the appellants’ family members. The Court’s answer was an emphatic ‘no’, the SSHD’s breach of duty had been ‘systematic’ [para.17] and the SSHD’s argument that it had discharged its duty by simply informing the appellants of the tracing facilities offered by the ICRC was firmly rejected [para.14]. The SSHD argued that the government itself could not refer cases to the ICRC as claimants themselves must do it. The Court (as in DS (Afghanistan) [2011] EWCA Civ 305) decided that the SSHD offered an inadequate explanation given that the Regulation itself does not limit how tracing is conducted [para.15]. It is relevant to note here that the Court cited the passages in DS which highlight that the SSHD’s duty is not discharged even if there is a lack of cooperation on the part of the particular claimant [para.14].

On the issue of the ‘bright line’ (reaching the age of 18 before the case is finally determined) argument, the Court held that although there is no duty to trace beyond the age of 18, the assessment of risk on return cannot be subject to such a rule. Crucially, the Court stated:

‘Given the kinds of risk in issue include the forced recruitment or the sexual exploitation of vulnerable young males, persecution is not respectful of birthdays – apparent or assumed age is more important that chronological age.’ [para.18].

Ultimately, the Court allowed outright only SA’s appeal on the SSHD conceding that the Upper Tribunal erred in law in overturning the First-tier Tribunal’s determination in his case [para.28]. In respect of the others, including KA, according the Court, there is a ‘hypothetical spectrum’ [para.25] which needed further investigation before their appeals could be disposed of. The Court drew a distinction between, at one end, the claimants (who for the sake of simplicity I will crudely call ‘the honest claimants’) who give a credible account of having no surviving family members in Afghanistan and have used their endeavours to find them but have failed and, at the other, the (ii) other claimants who have been so uncooperative as to frustrate any attempt to trace their families. Of the ‘honest claimants’ the Court says that even if they have reached 18 by the time their appeals have been considered they ‘may’ be able to avail themselves of the Rashid/R (S) principle and/or section 55 by reason of the SSHD’s failure to comply with the duty to trace. This is because the claimants have

‘…lost the opportunity of corroborating [their] evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace’ [para.25].

Of the other claimants, by reason of their behaviour, they ‘…may have put [themselves] beyond of the protective and corrective principle’ as they would be unable to prove a causative link between the Secretary of State’s breach of duty and their claim to protection. They, unlike the honest claimants, cannot be said to have lost the opportunity of corroborating their evidence as they cannot establish any disadvantage [para.25].

The Court stressed the need to establish both the facts and the disadvantage claimed. The particular applicant must in the Court’s view (i) establish that there has been a failure on the part of the SSHD to discharge the duty and (ii) establish what he is seeking. It again emphasised that a previous lack of cooperation will not always defeat the claim but it may lead to the drawing of an adverse inference. As in HK (Afghanistan) [2012] EWCA Civ 315, it would not be ‘improper’ for the tribunals to draw adverse inferences even where the appellants have demonstrated a ‘…deep-rooted resistance to being returned to his country of origin’ [para.26]. In light of the Court’s ‘spectrum’ analysis, it invited written submissions from all remaining appellants as to how their cases should be disposed of. At the time of writing we do not have any indication when or how these particular appeals will be concluded.

The impact of this judgment has already been felt. Other lawyers are reporting that the Home Office is withdrawing refusal decisions, tribunals are allowing appeals and remitting cases to the Home Office for reconsideration, and the Administrative Court has granted a stay of removal in light of it.

The judgment cannot be any clearer (if it had been unclear before) regarding the Secretary of State’s duty of tracing. No more can the Home Office seek to rely on its benign gesture of giving claimants a few leaflets about the ICRC and then letting them get on with it themselves.

The job for those representing unaccompanied minors and those who once fell into that category but who have now reached their majority is to craft cogent arguments to the SSHD demonstrating the ‘historic wrongs’ having been committed by the SSHD and tribunals in the assessment of their claims in order show how they have been disadvantaged in corroborating their evidence of having no family to return to who could protect them from abuse and persecution. By doing so, they can prima facie fall within the Rashid principle.

This may not prove too onerous a task and I venture that it is in relatively few cases that it can be shown that the particular claimant/appellant in a previous claim or appeal demonstrated deliberate willingness to frustrate the tracing process. I have seen appellants accused of this in tribunals determinations though, some having been unfairly accused of frustrating the process when the truth of the matter was that having been understandably confused about what to do to discover the whereabouts of their family. Having no help from the Home Office and being unable to rely upon their foster carers or social services, appellants resorted instead to seeking the assistance of the Afghan community. Such evidence has not been warmly received, tribunals having insisted that more formal documentary evidence (from, for example, the ICRC) should and could easily have been obtained. Where this has happened, the judgment in KA provides a platform for making fresh claims on the basis had the SSHD discharged its duty to trace their families the claimant would have been more able to prove what he or she had been claiming, even if that claim had come only from his own mouth.

Further, to see the ‘bright line’ argument fully accepted within an authoritative Court of Appeal judgment is most helpful. One would have thought that it have been common sense to all of the tribunals deciding claims of those who had just reached their majority but so often it was unreasonably and unfairly rejected. Now, when assessing risk on return for unaccompanied young people, decision makers is not to look only at whether the particular claimant or appellant is under 18 but must asked themselves what that person’s ‘apparent or assumed age’ is and whether the risks that applied to the person when they were under 18 can realistically be said to no longer exist. Thus if an appeal had been rejected as that appellant could no longer be said to fit within the LQ [2008] UKAIT 00005 scenario as they had reached their majority, KA again provides a basis for a fresh claim (or even an out of time application for permission to appeal depending on the circumstances).

Although I stand to be corrected, it appears that the creativity and brilliance of the arguments put by the appellants’ legal teams (including Joanna Dodson QC of our own chambers) have been honestly reflected in the judgment.