Shinwari, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 2148 (Admin)

Case No CO/3415/2012[2013] EWHC 2148 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19 July 2013
Before
FRANCES PATTERSON QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimant(on the application of ABDULRAZIQ SHINWARI)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Sonali Naik (instructed by Duncan Lewis, Solicitors) for ClaimantNicholas Chapman (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 19 June 2013
JudgmentFrances Patterson QC :Introduction
[1]This is a claim for judicial review of a decision dated 27 March 2012 to remove the claimant to Afghanistan. The claimant seeks a declaration that the Secretary of State reconsider her decision, taking into account the principle of corrective relief. The proceedings were stayed by Burnett J on 30 March 2012 to await the decision of the Court of Appeal in KA (Afghanistan). That decision was handed down on 25 July 2012 under reference 2012 EWCA (Civ) 1014. On 21 August 2012 permission was granted by HHJ Vosper QC, sitting as a

judge of the High Court on the basis that:

“It is arguable that the steps by the defendant in the present case (the AOS) do not go far enough to discharge her duty under Regulation 6 and that the failure is relevant to the determination of the claimant’s asylum claim.”
[2]Further directions were given on 2 October 2012, by consent, for the filing of amended Grounds of Claim and consequential pleadings. On 4 June 2013 the claimant filed Amended Grounds. On 17 June 2013 the defendant filed Detailed Grounds of Resistance. On 19 June the case came before me.

Factual Background

[3]The claimant is a 20-year old national of Afghanistan who is a failed asylum seeker. He was due to be removed from the United Kingdom on 4 April 2012. The claimant was born on 12 January 1993. On 8 December 2007 he was fingerprinted in Greece. On 28 April 2008 he arrived in the UK unlawfully as an unaccompanied minor. He claimed asylum on 4 June 2008. He was interviewed on 26 August and asylum was refused on 26 September 2008, when the Secretary of State granted discretionary leave to remain until the claimant reached the age of 17½ on 12 July 2010. On 8 July 2010 the claimant applied for extension of his discretionary leave to remain, which was refused on 8 September 2010, when a decision was taken to remove him from the Untied Kingdom. On 5 November 2010 the First tier Tribunal dismissed the claimant’s appeal. On 22 November 2010 he became appeal-rights exhausted. On 9 February he was arrested for alleged criminal offences which were not pursued. Removal Directions were set, cancelled and finally reset on 27 March 2012 for his removal on 4 April 2012. It is those Directions which are the subject of this challenge.

The Claimant’s Case

[4]The claimant’s case is that: i) The defendant is in breach of her duty to endeavour to trace the claimant’s family pursuant to Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. ii) The defendant failed to have any or any proper regard to her duty under s55 of the Borders Citizenship and Immigration Act 2009. iii) The claimant has established a material disadvantage in the outcome of his asylum claim as a result of those breaches. iv) The defendant has acted perversely and unlawfully in failing to exercise her discretion to grant leave to remain. v) As a consequence, it is incumbent upon the defendant to reconsider the claimant’s application in accordance with the principle of corrective relief.

The Defendant’s Case

[5]The defendant admits that, in the circumstances of this case, she has breached her duty to endeavour to trace the claimant’s family members. She accepts that, in theory, she could have paid a local agent to travel to the village where the claimant said he lived and made enquiries as to his family’s whereabouts. That breach might, therefore, be relevant for evidential considerations in the asylum claim or in the discharge of her duty under s55 in general, but not in the specific factual context of the current case. The defendant’s submission is that there is no causative link between the defendant’s failure to comply with her duty and the outcome of the claimant’s asylum claim. The claimant has been unable to demonstrate any real prejudice or material disadvantage: the loss of an opportunity is not sufficient to constitute an error in public law. Further, the “corrective or protective” principle is about the correction of injustice, and not about sanctioning the Secretary of State. The principle is, therefore, inapplicable in the instant case.

The Legal Framework

[6]The case of KA (Afghanistan) v Secretary of State for the Home Department (2012) EWCA (Civ) 1014 considered whether Afghan minors applying for asylum who had attained the age of 18 by the time of the hearing before the First tier Tribunal or the Upper Tribunal “should retain the advantage (in immigration terms) of their minority”. It considered the significance of a failure to comply with the duty to endeavour to trace; the significance of a failure to comply with a duty under s55 of the Borders Citizenship and Immigration Act 2009 and the so-called corrective principle. Maurice Kay LJ, giving the lead judgment, said: “16. The case for the appellants is that the duty to endeavour to trace simply was not complied with between 2006 and 2010; that this was not just a haphazard coincidence in the present cases; and that the irresistible inference is that it was deliberate and systemic. Indeed, it seems that in DS (Afghanistan), the submission on behalf of the Secretary of State, which was rejected by this Court, was that she was "entitled to do nothing by way of tracing inquiries" (paragraph 44). In the present case, that has morphed into a submission which I can caricature as an entitlement to do next to nothing which I find equally unsustainable. The inference that I draw from the history prior to DS (Afghanistan) is that the Secretary of State failed to discharge the duty in relation to unaccompanied minors from Afghanistan because she adopted the policy of granting them leave to remain until they reached the age of seventeen and a half, whereafter any further application would be considered on its merits. By that time, of course, the duty to endeavour to trace would be close to expiration because of the imminence of majority.17. Having accepted that there was a systemic breach of the duty to endeavour to trace, I now have to consider whether that may trigger the Rashid/S principle. It is a complicated question and not simply a matter of the systemic breach entitling these appellants, without more ado, to the allowing of their appeals with remittal to the Secretary of State to consider grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the appellants were over 18 when their cases came before the FTT or the UT and, as a consequence and in accordance with the Ravichandran principle, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid/S principle applies, it modifies the strict application of Ravichandran.18. At this point, it is appropriate to refer to what I may call "the eighteenth birthday point". Although the duty to endeavour to trace does not endure beyond the date when an applicant reaches that age, it cannot be the case that the assessment of risk on return is subject to such a bright line rule. The relevance of this relates to the definition of a "particular social group" for asylum purposes. In DS, Lloyd LJ considered LQ (Age: Immutable Characteristic) Afghanistan [2008] UKAIT 00005 in which the AIT held that “for these purposes age is immutable”, in the sense that, although one's age is constantly changing, one is powerless to change it oneself. Lloyd LJ said (at paragraph 54): ‘that leaves a degree of uncertainty as to the definition of a particular social group. Does membership cease on the day of the person's eighteenth birthday? It is not easy to see that risks of the relevant kind to who as a child would continue until the eve of that birthday, and cease at once the next day.’ Given that 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 than chronological age. Indeed, as submissions developed there seemed to be a degree of common ground derived from the observation of Lloyd LJ.” ‘that leaves a degree of uncertainty as to the definition of a particular social group. Does membership cease on the day of the person's eighteenth birthday? It is not easy to see that risks of the relevant kind to who as a child would continue until the eve of that birthday, and cease at once the next day.’[7]The ensuing principles were then set out in paragraph 24:
“Certain principles emerge from the authorities, particularly DS and HK: 1. The duty to endeavour to trace is not discharged by merely informing a child of the facilities of the Red Cross. 2. A failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim. 3. Such a failure may also be relevant to a consideration of the section 55 duty.”
[8]The importance of a factual matrix in each case was then considered in the following paragraphs as follows: “25. Although we are not yet in a position to deal with the cases of these individual appellants (save for SA), it is important to emphasise that, when the principles to which I have referred come to be applied to individual cases, much will turn on their specific facts. There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage. At this stage, when we have not heard oral submissions on the facts of their cases, it is inappropriate to say where on the spectrum each of these appellants lies. 26. It is important to emphasise that the preceding paragraph uses the language of established facts and the need to establish disadvantage. Whether one is considering asylum, humanitarian protection or corrective relief, there is a burden of proof on an applicant not just to establish the failure to discharge the duty to endeavour to trace but also that he is entitled to what he is seeking. A past lack of cooperation on the part of the application may not always defeat his claim – it did not in DS or HK – but it may lead to the drawing of an adverse inference. As Elias LJ said in HK (at paragraph 35): ‘I do not suggest that it would in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. It will depend on a range of factors which would include the circumstances in which the child came to the UK, the age of the child and whether he or she has been encouraged to make contact. But in my judgment it is in principle an inference which it is legitimate for a court to draw where the evidence justifies it and it is not an improper inference for the Upper Tribunal to make on the evidence before it.’ Indeed, Elias LJ considered (at paragraph 51) that, on remittal, an adverse inference was in principle open to the UT on the evidence of a lack of cooperation in that case. Even in the context of a clear breach of the duty to endeavour to trace, a tribunal will retain a certain robustness in assessing the evidence of a young person who has demonstrated a deep-rooted resistance to being returned to his country of origin.” ‘I do not suggest that it would in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. It will depend on a range of factors which would include the circumstances in which the child came to the UK, the age of the child and whether he or she has been encouraged to make contact. But in my judgment it is in principle an inference which it is legitimate for a court to draw where the evidence justifies it and it is not an improper inference for the Upper Tribunal to make on the evidence before it.’[9]In the subsequent case of EU v Secretary of State for the Home Department (2013) EWCA Civ 32 the court considered the appeals on their facts of each of the six remaining appellants, who had brought the case of KA. Sir Stanley Burnton, giving the lead judgment, said:
“8. I would also add a comment to what was said by this Court in KA about the line between minority and adulthood. One should, in addition, take into account what I conceive to be the reason for the Secretary of State's policy to grant limited leave to remain to children, irrespective of his or her asylum claim. It would simply be inhumane to return an unaccompanied young child, specifically in cases such as the present to Afghanistan, at least where there will be no family to take care of him or her on arrival in Kabul. But that rationale applies with less and less force with increasing age. 9. In this connection, it is necessary to bear in mind that the birthday that has been ascribed to a claimant is often arbitrary. For example, a claimant contending to have been aged 16 in June 2012, but who is unable to give his date of birth, may as a formality have been given the date of birth of 1 January 1996. If his age is disputed, and he is assessed as aged 18, he may be recorded as having been born on 1 January 1994. Thus, the Secretary of State's decision letter dated 28 January 2010 in relation to EU records his date of birth as “01 January 1995 (disputed) 01 January 1993 (assessed)”
. I do not think that anyone believed that he was born on 1 January of either year. That date was given as a formality to reflect his age as asserted and assessed. In such a case, 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. 10. Lastly, I should mention a point made by the Secretary of State which I consider to have substance. Unaccompanied children who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their fare and/or for a so-called agent to arrange their journey to this country. The costs incurred by the family will have been considerable, relative to the wealth of the average Afghan family. The motivation for their incurring that cost may be that their child faces risk if he or she remains with them in Afghanistan, or it may simply be that they believe that their child will have a better life in this country. Either way, they are unlikely to be happy to cooperate with an agent of the Secretary of State for the return of their child to Afghanistan, which would mean the waste of their investment in his or her journey here.”

Discussion

[10]Giving the admission by the defendant of a breach of duty to endeavour to trace the claimant’s family, I do not need to spend too much time on that aspect of the case. I do, though, need to consider the evidence for the claim for asylum, given the importance on the part of the claimant in demonstrating a causative link between the admitted breach and material disadvantage that he contends he has suffered as a consequence.

The 2008 Decision

[11]On 25 September 2008 the claimant was refused asylum for the first time. He was then aged 15. He was granted discretionary leave to remain until 12 July 2010, when he would be 17½. In that decision letter the defendant found: i) That it was reasonable for the claimant to relocate internally within Afghanistan to an area such as Kabul where the claimant would be comparatively safe and able to find work to support himself with the assistance of his cousin/brother Shiraz Khan (para 25). ii) That even if it would be unduly harsh for the claimant to relocate whilst a minor, there was no evidence that relocation to Kabul would be unduly harsh once the claimant reached 18 and was able to live independently (para 26). iii) That there was sufficiency of protection in Kabul. iv) That his cousin/brother lived half an hour away and had demonstrated concern for his welfare, supported the claimant for one month and organised his departure from Afghanistan and that there was no evidence that the claimant was an orphan and his mother was alive in Afghanistan (para 34). v) It was not accepted that the claimant’s father and brother were killed as claimed by the claimant as there was discrepancy over the dates and a lack of supporting documentary evidence : a) The claimant was unable to state the date of the killings. b) In his witness statement, the claimant claimed the attack occurred mid-January to February 2008 and that he witnessed it. c) In his interview, the claimant claimed that the killing occurred in mid to late March 2008. d) There was no death certificate. e) There was evidence of the claimant being in Greece on 8 December 2007 when his fingerprints were taken. vi) The claimant’s failure to take advantage of a reasonable opportunity to make an asylum or human rights claim whilst in Greece damaged his credibility (para 44). vii) As a result the claimant’s claim for asylum and international protection under the 1951 Refugee Convention was refused. Although an appeal was lodged, it was withdrawn on 30 October 2008 whereupon the claimant became appeal-rights exhausted. 2010 Decision[12]On 8 July 2010, the claimant applied for variation of his leave to remain in the United Kingdom. That application was rejected on 10 September 2010. The claimant submitted a witness statement in support of his application. In it, he contended that his house had been on fire after his escape. It was noted that that was something that he had not raised previously and, because of the inconsistency of this account and his previous account, that part of his claim was rejected. As the claimant maintained his previous account, the previous decision remained valid (para 14). It was found that the claimant was not an orphan and had family to return to (para 18). As the claimant was nearing adulthood, he was at the very bottom of the sliding scale of risk. Consequently, he was significantly at less theoretical risk as a child than he had been in his original claim (para 20). The claimant’s claim to fear the authorities and the Mujahedeen was not credible, so that he could turn to the authorities for protection (para 24). There was part of Afghanistan in which he did not have a well-founded fear of persecution and to which it would be reasonable to expect him to go, namely Kabul (para 35).[13]The claimant’s family still resided in Afghanistan so that it was reasonable to assume that they could assist the claimant on his return (para 38). The claimant was of working age, so that he could support himself on return in the event that he could not locate his family (para 39). As a result the grounds upon which the claimant’s asylum application was previously refused remained valid and his claim for asylum was rejected. In coming to this conclusion, regard was given to the statutory guidance on making arrangements to safeguard and promote the welfare of children, “Every child matters: change for children” issued under s55 of the Borders Citizenship and Immigration Act 2009.[14]The claimant then brought an appeal against that decision.

First Tier Tribunal Decision promulgated 10 November 2010

[15]The Immigration Judge, in his decision, took into account the conduct of the claimant in having his fingerprints taken in Greece but failing to claim asylum there (para 18). He found the following, in paragraph 28 of his decision:
“(e) Clearly, as the appellant was fingerprinted in Greece on 8 December 2007 he cannot have been present in Afghanistan when he claims both his father and brother were shot and his house was blown up, although he managed to escape. (f) Accordingly, I find this fatal to the appellant’s claim to be at risk because of his imputed political opinion. I believe nothing the appellant says in relation to his asylum claim. He is not a credible witness. … (i) The appellant will be nearly 18 years old on his return. In view of my disbelief as to his claims, I am not satisfied he is an orphan. Whilst he claims to be unaware of the whereabouts of his family, he has not shown they are no longer alive. (j) Whilst I fully accept there is an onus on the Respondent both under Council Directive (2003/9/EC) at Article 19(3) and under the Asylum Seekers (Reception Conditions) Regulations 2005 s6 to endeavour to trace the members of the minor’s family as soon as possible, after a minor makes a claim for asylum, I cannot accept that those provisions negate the burden which is on the appellant to show that adequate reception facilities cannot be made for him in Afghanistan. In this regard I bear in mind what is said by Sullivan LJ at paragraph 10 of ZH (Afghanistan) [2009] EWCA Civ 470. (k) It has been established in the decision in ZH (Afghanistan) that merely because the appellant was a minor who had been granted discretionary leave to remain under the respondent’s broad policy relating to Afghan minors who are unaccompanied and whose parents cannot be traced and for whom no adequate reception facilities can be made, this does not mean the appellant necessarily qualifies for asylum. He may be one of a particular social group as identified in LQ (Age: Immutable Characteristics) Afghanistan [2008] UK AIT 00005, but it is still necessary for the appellant to show that he will be at real risk of persecution on return. On the evidence before me the appellant has been unable to do this. (l) It is the appellant’s age, which will be nearly 18 on return, which satisfies me that he is not at risk on return to Kabul, particularly as he is in good health. The objective evidence to which I have been referred by the appellant’s representative deals with children. The appellant is very nearly an adult. I am not satisfied that the appellant will be subjected to the risks referred to in the COIS. For the same reasons I do not consider it would be unreasonable for the appellant to remain in Kabul following his arrival there.”
[16]The claimant did not appeal that decision on the part of the First tier Tribunal. From the decision of the First tier Tribunal it is apparent that the immigration judge gave express consideration to the duty on the defendant to trace members of the claimant’s family and the relationship between that duty and the burden on the claimant to show that adequate reception facilities could not be made available to him in Afghanistan. As Sullivan LJ said in ZH:
“The mere fact that a child applicant for asylum falls within the policy of the Secretary of State is not in my judgment of itself sufficient to discharge the burden on the child applicant to demonstrate that he is at real risk or there is a serious possibility that he will be persecuted if returned.”
[17]I cannot see any basis upon which justifiable criticism can be made of the immigration judge in paragraphs 28j and indeed 28k. The claimant’s claim was that he had a fear of persecution by the Mujahedeen who had killed his father and brother. Yet the claimant’s account of the death of his father and brother had been disbelieved on each of the three occasions when he had offered it. The defendant was entitled to take into account the finding that the immigration judge made that the claimant’s account was untruthful when she came to exercise her discretionary power to remove the claimant. The telling fact relied upon by the immigration judge that the claimant had been in Greece in 2007 when he was fingerprinted which led to the conclusion that the claimant’s claim could not have happened as the claimant said and which led the immigration judge to conclude that he could not believe anything that the appellant said in relation to his asylum claim was on any view a strong and robust finding but one to which the immigration judge was entitled to come having seen and heard the claimant and considered all the evidence before him.[18]The failure to discharge the duty to endeavour to trace the claimant’s family does not, in this case, in my judgement, lead to a serious or material disadvantage on the part of the claimant. The claimant had failed to discharge the evidential burden on him to demonstrate that a real risk of persecution would arise upon his return to Afghanistan. The claimant had placed himself at the other end of the hypothetical spectrum referred to by Maurice Kay LJ in paragraph 25 of his judgment in KA. It was submitted that the claimant had not been un-cooperative but what was found to be his fabricated account does not amount to co-operation.[19]Furthermore, the claimant was found by the first tier tribunal to be able to internally relocate in Afghanistan to Kabul, as had been the finding in the two previous decision letters by the Secretary of State. Nothing in the cases of KA or EU affects the existing law on internal location. Absent any appeal, the findings of the immigration judge on internal location remain inviolable. In my judgment, that is a real obstacle to any demonstration by the claimant of a causative link between the failure on the part of the defendant to discharge a duty to endeavour to trace the claimant’s family and a real disadvantage sustained by the claimant. The claimant submitted that internal relocation was only relevant once the claimant was significantly over 18. I reject that submission. Whilst I accept entirely that there is no bright line attached to an 18th birthday, an individual who has a well-founded fear of persecution in part of his country of origin is not a refugee if there is another part of the country to which he can go where he will be safe. Whether internal relocation is possible is part of the question to whether the individual is a refugee. The immigration judge addressed that in paragraph 28 of his decision, taking into account the age, the health and the risks that the claimant would face. In other words he conducted a qualitative assessment of risk, rather than ascribing simply to the chronological age of the claimant. In my judgment that is the correct approach to adopt. The defendant was entitled to rely upon it.[20]I accept that, as a result of the defendant’s failure, the claimant lost an opportunity for investigations to be made as to the whereabouts of his family, but loss of an opportunity does not, here, equate with serious disadvantage and does not, in fact, lead to any conclusion that the Secretary of State acted unlawfully and/or perversely in setting her removal directions. Even if the opportunity had been exercised, it is hard to see how it would have affected at all the findings on credibility on the part of the claimant in which a clearly material factor was his presence in Greece at the end of 2007, for which there was documentary evidence, when his account of the killings of his father and brother in his presence took place some months later in Afghanistan. Even if the family had been traced, based on the demonstrated conduct of the claimant’s cousin/brother, there is a real possibility that adequate reception facilities would or might have been available in Afghanistan with his extended family. However the point is examined, therefore, at its highest the claimant may have lost an opportunity, but it was not one that was going to lead anywhere. It cannot be said that such a loss was a material disadvantage to the claimant particularly taking into account the other findings which were made and upon which the defendant could lawfully base her decision in respect of the removal directions.[21]Against that background, it cannot be said that the defendant acted perversely and unlawfully in failing to exercise her discretion to grant leave to remain. She acted in a way which was, in my judgment, entirely lawful, taking into account all relevant considerations on the evidence before her. S55 of the Borders Citizenship and Immigration Act 2009 raises no additional issues. It follows that there is no basis to invoke the principle of corrective justice in the factual circumstances of this case. This application is therefore dismissed.