Gafaro, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 3365 (Admin)

Case No CO/3982/2012Case No CO/9801/2012[2013] EWHC 3365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 6 November 2013
Before
MS D GILL(Sitting as a deputy judge of the High Court)
Between
The QueenClaimantThe Secretary of State for the Home DepartmentDefendant
Ms. S. Naik (instructed by Duncan Lewis) for ClaimantMr. N. Chapman (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 22 October 2013
JudgmentMs D Gill:Introduction and the issues
[1]The claimant challenges the lawfulness of directions issued for his removal to Afghanistan on 5 April 2012 (CO/3962/2012, lodged on 16 April 2012, the “first claim”) and on 14 September 2012 (CO/9801/2012, lodged on 14 September 2012, the “second claim”). The basis of the challenge to each is summarised at paras 4 and 5 below.[2]In addition, I consider a challenge to the lawfulness of a decision by the defendant of 3 January 2007 (the first refusal) to refuse the claimant’s asylum application of 3 November 2006 (the first asylum application) which was made shortly after his arrival (on 31 October 2006) as an unaccompanied 16-year old. This challenge is said to be part of the second claim, lodged more than five years after the decision in question was made. It is contended on the claimant's behalf that His Honour Judge Bidder QC, in granting permission to challenge the lawfulness of the two sets of directions for his removal, granted an extension of time. I comment on this at para 6 below.[3]The first refusal did not attract a right of appeal because the defendant granted the claimant discretionary leave to remain (DLR) until 31 December 2007. His second claim for asylum, made on 18 February 2008 (i.e. out of time) (the second asylum application), was refused on 6 April 2010 (the second refusal), the appeal against which was dismissed on 13 July 2010 by Immigration Judge Dawson. That determination was not challenged until an application was made out of time, on 11 September 2012, in response to comments made by Nicol J in refusing an application for a stay on 10 September 2012. The renewed application for an extension of time and for permission to appeal against the determination of Judge Dawson was refused by the Upper Tribunal on 11 October 2012.[4]The claimant contends that, when he made his first asylum application, the defendant failed to discharge her duty to endeavour to trace his family in Afghanistan. This duty is imposed on the defendant under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. The claimant contends that the breach of this duty materially disadvantaged him in the making of the first refusal, the second refusal and the determination by Judge Dawson of his appeal against the second refusal, such that the defendant may not now lawfully remove him. The claimant therefore relies upon what has been described as the “corrective principle”, the basis for which is explained in Rashid v. SSHD [2005] EWCA Civ 744. Rashid has been considered in several cases, including, in the context of the duty under regulation 6, KA (Afghanistan) & others v. SSHD [2012] EWCA Civ 1014, [2013] 1 WLR 615 (judgment delivered on 25 July 2012) and EU (Afghanistan) and others v. SSHD [2013] EWCA Civ 32, [2013] Imm AR 496 (judgment delivered on 31 January 2013).[5]That in a nutshell is the basis of the challenge to the removal directions. However, given that two separate claims have been lodged against two sets of directions, it is appropriate to set out how the challenge is brought in respect of each claim. This is as follows: i. the directions issued on 5 April 2012 for the claimant’s removal on 17 April 2012 (the first claim) are unlawful because they rely upon the second refusal and the determination of Judge Dawson; ii. the directions issued on 14 September 2012 for his removal on 16 September 2012 (the second claim) are unlawful because they rely upon the first refusal.[6]I record here that Mr. Chapman asked me to proceed on the basis that the decision of Judge Bidder of 13 November 2012 granting permission on the first and second claims included an extension of time to permit the claimant to challenge the lawfulness of the first refusal itself, rather than adjourn for a transcript of the judgment. I also record that there was no application to amend the grounds before Judge Bidder nor (it seems) was there any argument before him as to the reasons why time should be extended to challenge a decision made more than five years earlier. Although the order granting permission in each claim did state that time was extended, it is clear that the first claim did not mention the first refusal. There was a suggestion by Ms. Naik herself that the reference to an extension of time in the orders granting permission may have been concerned with the late filing of the renewal grounds, although she did also press the argument that the claimant had been granted permission to challenge the lawfulness of the first refusal.[7]It was not suggested on the claimant’s behalf that the breach of the defendant’s duty to endeavour to trace disadvantaged him in the sense that he has been deprived of the opportunity of obtaining evidence to corroborate the factual basis of his asylum claim, that is, that his father was shot dead by the Taliban in a targeted killing as opposed to an indiscriminate attack. The disadvantage claimed is that he lost the opportunity to corroborate his claim that, if removed in 2007, he would have been returning as a lone child with no family in Afghanistan. The defendant’s simple answer to this is that there was no disadvantage because the decision in the first refusal as to internal relocation to Kabul was made on the assumption that the claimant had no family in Afghanistan.

The facts

[8]The basis of the first asylum application was that the claimant's father was shot dead by five or six men from the Taliban dressed in military uniform who came to the claimant's home in Ghazni in the eastern part of Afghanistan in August 2006. They then began to shoot at the claimant. He was knocked unconscious when struck on the head with a rifle. After some days in hospital and at home, his mother took him and his brother to Pakistan. He then travelled to Iran and from there to the United Kingdom by lorry. He had no family members in Afghanistan. He feared persecution from the Taliban because he is a Shi’a Muslim.[9]The background material concerning the situation in Afghanistan is quoted at paras 15 to 17 of the “Reasons for refusal” letter (the refusal letter) dated 3 January 2007. Paras 20 and 21 then state as follows:
“20. In view of the details given in paragraphs 15-17 above, it is accepted that your father may have been killed and you yourself injured and that the Taliban may have been responsible. However, again in view of the details given at paras 15-17 above, it is not accepted that this was a concerted attack on you or your family, but due to the indiscriminate attacks and violence that was occurring in the eastern parts of the country, which may not necessarily have been motivated by your religion. It is therefore concluded that you have not established a fear of return to Afghanistan because of your religion. 21. Consideration has therefore been given to your return to Afghanistan.”
[10]The defendant then considered background material in relation to Kabul at para 22 and other material at paras 23 and 24, before stating, at para 25:
“25. It is therefore concluded in view of the details given at paragraphs 22 – 24 that the situation in Kabul is stable and that this is supported by the New Assembly and the ISAF and that there are authorities that you could seek redress from if you felt that you were at risk in any respect and as such it is therefore concluded that you have not established a fear of return to Afghanistan.”
[11]As stated above, the decision of 3 January 2007 did not attract a right of appeal. On 18 February 2008, the claimant applied (out of time) for leave to remain on asylum and human rights grounds. On 6 April 2010, the second refusal decision was made. At the same time, the defendant issued a decision to remove the claimant as an overstayer.[12]As stated above, the claimant’s appeal against the second refusal was dismissed by Judge Dawson. In his determination, Judge Dawson recorded that the basis of the claimant's asylum claim was that he feared he would be targeted by the Taliban who had killed his father in August 2006. He also said he feared he would be at risk as a Shi’a Muslim and in the light of his ethnic group as a Hazara as well as his father’s membership of Hizb-e-Wahdat, explaining why he had not mentioned this previously.[13]As to the whereabouts of the claimant’s family, Judge Dawson had the appellant’s evidence that he had two siblings, a sister and a brother. His sister was in Quetta City in Pakistan with her husband, who was also an Afghan national. The claimant was in touch with them by telephone every two weeks or so. A friend of the claimant’s, who was in Tehran and with whom the claimant had contact, had told him three months previously that his brother was still in prison in Iran. The claimant did not know why his brother was in prison.

Judge Dawson’s findings are set out at paras 21, 22 and 24, which read:

“21. My conclusion from assessment of the Appellant’s claim is that the difficulties he encountered and the death of his father arose out of general hostility by the Taliban. It would be too unsafe for the Appellant therefore to be returned to his home village and consequently I must examine the option of internal flight. The Appellant’s own evidence suggests that he would not have any family to turn to in any event in his home village. 22. The evidence before me does not establish that someone of Hazaras ethnicity and of the Appellant’s age would be at risk by virtue of that ethnicity in Kabul. I take account of the reference in the COI Report to a demonstration by Hazaras in the capital on 22 July 2008 ending peacefully after five hours. In order to succeed under the Refugee Convention, the Appellant would need to demonstrate that by virtue of his ethnicity or religion, he would be at risk of persecution were he to be living in Kabul. He has not established that. The appellant does have some health difficulties but none is serious. It is significant that he believes he saw a doctor in relation to his stomach in 2008. I accept that he is currently receiving medication for depression and insomnia but the evidence does not establish that his condition is not one that cannot continue to be treated in this way by medication. His health therefore does not preclude the option of internal flight to Kabul. The Appellant will know no one there but he has shown considerable resourcefulness in making his way to the United Kingdom and will be returning armed with competence in the English language which will assist him in acquiring work. The Appellant has been able to keep regular contact with his sister and her husband and the evidence does not establish they would be unable to visit or join him in Kabul. The Appellant has given evidence that his brother is in prison in Iran. On the whole I have found the Appellant truthful but I am not persuaded to the lower standard that his brother is detained as such other than perhaps for being an illegal migrant. In due course I am satisfied his brother will be released and deported and there is no reason why he would be unable to join him in Kabul and provide him with companionship there. 24. My conclusions weighing up all the evidence before me are that although there remains the possibility that the Appellant could face a risk of persecution in his home area, the option of internal flight to Kabul is neither unreasonable nor unduly harsh. He is unable therefore to succeed under the Refugee Convention.”
[15]As stated above, the claimant's challenge to Judge Dawson's determination was lodged out of time, on 11 September 2012. On 11 October 2012, the Upper Tribunal refused to extend time and did not admit the application.

The legal principles in issue

[16]The legal principles in deciding the lawfulness of the first refusal do not need to be stated.[17]As to the corrective principle, the starting point is to recognise that the general rule in relation to asylum cases, which is derived from the judgment in Ravichandran v. SSHD [1996] Imm AR 97, is that they are decided on the basis of the facts and circumstances prevailing at the time of the decision. The corrective principle, upon which the claimant relies, is a departure from the general rule and is based on the judgment of the Court of Appeal in Rashid v SSHD.[18]In KA (Afghanistan), Maurice Kay LJ said:
“9. In Rashid the Secretary of State, in considering an asylum application, had omitted to have regard to a policy which would or might have benefited the applicant. Over a year later, the applicant’s solicitors drew the omission to the attention of the Secretary of State but by the time the application was reconsidered by the Secretary of State the policy had ceased to exist because of a change of circumstances. On the applicant’s claim for judicial review of the reiterated refusal on reconsideration, Davis J and thereafter the Court of Appeal held that the applicant had been a victim of unfairness such as to amount to an abuse of power. Pill LJ said (at paragraph 36): “I agree … that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct [viz failure to have regard to the policy], and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field.” 12. R (S) v Secretary of State for the Home Department ([2007] EWCA Civ 546) contains a rigorous analysis of Rashid by Carnwath LJ. There the application for asylum was made at a time when the applicant would have benefited from a policy which would have resulted in his being granted four years’ exceptional leave to remain which ordinarily would have led eventually to a grant of indefinite leave to remain. In the event, his application was not considered for some four years because of an agreement between the Home Office and the Treasury to put a large number of claims on hold. By the time it was considered, the beneficial policy had been withdrawn. Carnwath LJ expressed reservation about the reasoning (but not the result) in Rashid on the ground that “it seeks to transform ‘abuse of power’ into a magic ingredient, able to achieve remedial results which other forms of illegality cannot match”
(at paragraph 39)…. 13. … S and other authorities were further considered by Jackson LJ in SL (Vietnam) v Secretary of State for the Home Department [2010] 1WLR 651. His synthesis of them (at paragraph 33) was:
“(i) A decision may be unlawful if it is reached in disregard of a relevant policy. (ii) Past prejudice suffered in consequence of such a decision may be a relevant factor to take into account, even when that policy has ceased to be applicable.”
SL was ultimately concerned with deportation rather than asylum although the “past prejudice” had taken the form of failure to have regard to a beneficial policy in the context of an asylum claim. The remedy was therefore directed at reconsideration of the decision to deport in the light of the need to correct injustice caused by the previous unlawful failure to apply the policy in relation to the asylum claim, albeit that asylum was no longer an issue. 16. … The inference that I draw from the history prior to DS (Afghanistan) ([2011] EWCA Civ 304) 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….” “I agree … that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct [viz failure to have regard to the policy], and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field.” “(i) A decision may be unlawful if it is reached in disregard of a relevant policy. (ii) Past prejudice suffered in consequence of such a decision may be a relevant factor to take into account, even when that policy has ceased to be applicable.” SL was ultimately concerned with deportation rather than asylum although the “past prejudice” had taken the form of failure to have regard to a beneficial policy in the context of an asylum claim. The remedy was therefore directed at reconsideration of the decision to deport in the light of the need to correct injustice caused by the previous unlawful failure to apply the policy in relation to the asylum claim, albeit that asylum was no longer an issue.[19]Mr. Chapman informed me that in the instant case the defendant has already decided (para 42 of his skeleton argument) that the corrective principle does not require the grant of DLR to the claimant, whereas Ms. Naik submitted that the defendant should be required to consider whether it does, a submission which ignores the fact that the defendant has already made that decision. That decision can only be impugned on public law grounds, as to which the following passages from the judgment of Laws LJ in R (AA) v. SSHD [2012] EWCA Civ 1643 are relevant:
“17. I consider that the essence of the matter amounts to this. Where it is said that past events would make it unfair for the case in hand to be decided on the conventional Ravichandran approach, a reasonable Secretary of State may have to consider whether she should take account of those events, and in light of them decide the case in such a way as to avoid conspicuous unfairness to the claimant. 18. This is, in my judgment, a Wednesbury issue ([1948] 1 KB 223): would it be so unfair to proceed without regard to the factors relied on that no reasonable Secretary of State would take such a course? This must be the nature of the question, since any more intrusive approach would involve the court to an extent in the direction of immigration policy, and that would be illegitimate. I conceive this approach to be in line in Rashid as it was understood in S [2007], and with Goldring LJ's conclusions in S [2009] [EWCA 142]. There is nothing in KA [2012] which tends to contradict it.”
[20]Thus, the question is whether the defendant’s failure to comply with the duty to endeavour to trace the claimant’s family in 2006/2007 before the first refusal has led to such prejudice that it would now be so unfair to remove the claimant notwithstanding that he is not at real risk of persecution in Afghanistan that no reasonable Secretary of State would do so.[21]I agree with Ms. Naik that the claimant does not need to show conspicuous unfairness for a finding of unlawfulness on the part of the defendant (para 41 of R (on the application of Hashemi) v. SSHD [2013] EWHC 2316 (Admin), Hickinbottom J). She submitted that the threshold to establish prejudice was low but I was not referred to any authority for this proposition. However, I do not need to decide the point for the reasons given below.[22]It is important to note the necessity to show a causative link between the breach of duty and the disadvantage said to have been suffered, a point emphasised by Hickinbottom J in Hashemi at paras 42 (v), (vi) and (ix). At para 42 (ix), in particular, he stated:
“ix) However, it is very clear that that error was not material. For the reasons I have given, any breach of that duty was immaterial in this case, because the steps that the Secretary of State ought to have taken would not have resulted in any information relevant to the Claimant's claims for leave, on the ground of asylum or otherwise; and, even if they had resulted in some information being forthcoming, that information would not have assisted the Claimant or possibly led to his claim for leave to remain being determined in any other way than it in fact was.”
[23]Finally, I should deal with Ms. Naik’s submission that the defendant cannot be allowed to rely on her own “misconduct” to the claimant's disadvantage. By “misconduct”, she was referring to the breach of the duty to endeavour to trace. However, it is clear from the cases above that it is not enough for the claimant simply to establish a breach of the duty to endeavour to trace. Discussion The lawfulness of the first refusal and the removal directions issued on 14 September 2012 (the second claim)

Discussion

[24]Ms. Naik drew my attention to the fact that it was originally stated on the defendant’s behalf that she had made adequate enquiries in relation to her duty to endeavour to trace the claimant’s family by conducting an interview with the claimant. She does not take that position now, no doubt on account of the judgment in KA (Afghanistan) (see paras 16 and 17). What is clear is that Mr. Chapman informed me that the defendant’s position is that, in the consideration of the claimant's option of relocating to Kabul in January 2007, the defendant proceeded on the assumption that his evidence that he did not have family in Afghanistan was true without deciding the point.[25]Ms. Naik came close to suggesting that the defendant was guilty of an abuse of power. Upon objection by Mr. Chapman, she submitted that it was very surprising for the defendant to have proceeded on the assumption that the claimant did not have family in Afghanistan without deciding the point. She submitted that there was nothing in the refusal letter of January 2007 to suggest that such an assumption had been made and that, in any event, the defendant failed to discharge her duty to make findings on the applicable standard of a reasonable likelihood. She therefore submitted that it must be the case that the defendant had accepted the claimant's evidence as a fact that he had no family in Afghanistan.[26]I make the following points. First, it is not at all unusual to find that a decision-maker or a judge in the First-tier Tribunal will proceed on an assumption that some asserted facts are true without deciding the point. Second, the mere fact that the refusal letter did not state in terms that such an assumption had been made does not mean that the defendant’s position is incorrect. To the contrary, the only negative comment on the facts asserted by the claimant was the comment at para 20, to the effect that it was not accepted that the attack on the claimant and his family was a targeted attack as opposed to an indiscriminate attack. Third, para 9 of the refusal letter said that it had been decided to exercise discretion in the claimant's favour and grant leave to remain in accordance with the Home Office Asylum Policy Instruction on Discretionary Leave because he was an unaccompanied child for whom the defendant was not satisfied that adequate reception arrangements in his country were available. This supports the defendant’s position, that she decided the internal relocation issue on the assumption that the claimant would be without family in Kabul. Fourth, there is absolutely nothing in the decision which suggests that the defendant decided the relocation issue either on an assumption that the claimant had family in Kabul or on the basis of a finding that he did.[27]Ms. Naik submitted that the word “may” in “it is accepted that your father may have been killed and you yourself injured” at para 20 of the refusal letter is not consistent with the standard of proof and that it shows, in Ms. Naik's submission, that the defendant had accepted as a fact that the claimant did not have family in Afghanistan. That does not assist the claimant in establishing prejudice as a result of the breach of the duty to endeavour to trace, given that it must be the claimant's case that, if the defendant had not failed to discharge her duty and had made proper enquiries, it would have been discovered that he had no family in Afghanistan. However, that is precisely the basis upon which the defendant did assess his internal relocation option.[28]Ms. Naik submitted that, if proper enquiries had been made, his sister might have been identified sooner. Ms. Naik did not suggest what the outcome of that might have been, which is surprising, given that the claimant has been in regular contact with his sister. In any event, I simply cannot see how identification of his sister sooner could have helped his case. She may have indicated either that she was not prepared to return to Kabul in order to look after the claimant or that she was. The first possibility could not have made any difference to the defendant’s consideration of his case, as she decided it on the assumption that he had no family in Afghanistan. The second possibility could not have improved his case from the basis upon which it was decided by the defendant.[29]Ms. Naik drew my attention to R (A): (H) and (AH) v. SSHD [2006] EWHC 526 in which Collins J drew a distinction between a poor decision and one which was unlawful and where it was said at para 33 that it will not normally be enough to show that the decision was a poor one. Ms. Naik submitted that the decision in this case was not merely poor but unlawful, for the following reasons: In her submission, the defendant had failed to take into account the fact that the claimant was a lone child with no family and that he was therefore vulnerable. The defendant had failed to take into account para 4.3.of the defendant’s own Operational Guidance Note dated 18 August 2006 (the OGN) which reads:
“4.3 Minors claiming in their own right 4.3.1 Minors claiming in their own right who have not been granted asylum or HP can only be returned where they have family to return to or there are adequate reception, care and support arrangements. At the moment we do not have sufficient information to be satisfied that there are adequate reception, care and support arrangements in place. 4.3.2 Afghanistan acceded to the Convention on the Rights of the Child in 2002 and has strengthened legal provisions to protect children. However, in the current situation, characterized by weak rule of law and governance structures reports, child trafficking as well as child labour and forced recruitment, children continue to be exploited.76 Child abuse was endemic throughout the country during 2005. Abuses reportedly ranged from general neglect, physical abuses, abandonment, and confinement to work in order to pay off families’ debts. Child trafficking was s widespread.77 4.3.3 Minors claiming in their own right without a family to return to, or where there are no adequate reception, care and support arrangements, should if they do not qualify for leave on any more favourable grounds be granted Discretionary Leave for a period of three years or until their 18th birthday, whichever is the shorter period.”
[30]The first point, that the defendant had failed to take into account the fact that the claimant was a lone child with no family, ignores the fact that it has been stated on the defendant’s behalf that the internal relocation option was considered on the assumption that the claimant's evidence that he had no family in Afghanistan was true. Furthermore, and as Ms. Naik acknowledged, there is no “bright line rule” in relation to age, in that (to borrow from the words at para 62 of Mr. Chapman’s skeleton argument) just as an 18-year old might be at risk as a member of a particular social group, so might a 17-year old not be at such risk.[31]Para 4.3 of the OGN is concerned with whether there are adequate arrangements for the reception of a minor if returned. If there are no adequate arrangements for a minor’s reception, care and support, then para 4.3.3 provides for the grant of an appropriate period of DLR. However, as the Court of Appeal held in ZH (Afghanistan) v. SSHD [2009] EWCA Civ 470 and as Ms. Naik accepted, the mere fact there are no adequate reception arrangements does not mean that the child is a refugee. It seems that there was no country guidance case in January 2007 to the effect that a lone child under 18 with no family in Kabul was at real risk of persecution, nor that it was considered unduly harsh for any child under 18 to relocate to Kabul.[32]Finally, Ms. Naik submitted that the defendant had failed to engage with the safety and reasonableness of relocation to Kabul and that the failure did not merely make the decision a poor one but an unlawful one. I do not agree. At the most, the decision in relation to internal relocation may be poor but not unlawful. Given that there is no bright line in relation to age, that the claimant did not put forward any reasons or evidence why it would be unsafe or unduly harsh for him to relocate to Kabul in 2007 and that para 4.3 of the OGN was insufficient to demonstrate that Kabul was an unsafe and unreasonable relocation option for any lone child under the “bright line age” of 18, the defendant’s conclusion that the claimant could relocate to Kabul was plainly open to her.[33]For all of these reasons, I am satisfied that the first refusal was lawful. For the same reasons, I am satisfied that the breach by the defendant of her duty to endeavour to trace the claimant's family did not disadvantage him in the consideration of his asylum claim in January 2007. There is no basis for saying that, if the defendant had complied with the duty to endeavour to trace in 2007, this would have resulted in something other than the grant of DLR or refugee status.[34]There is therefore no question of it being unfair to remove the claimant or so unfair that no reasonable Secretary of State would do so notwithstanding the fact that he is not at real risk of persecution in Afghanistan. The directions issued on 14 September 2012 are therefore lawful.[35]I should say that, even if I had concluded that the first refusal was unlawful (which is not the case), I would not have granted any relief. If indeed it is correct that Judge Bidder granted permission to challenge the lawfulness of the first refusal, the substantial delay in bringing the challenge carries considerable weight when one considers the considerable damage that this would cause to good administration if individuals are permitted to bring a challenge to a decision made more than five years earlier and even then only when removal directions had been set more than once. Whilst it is true that the claimant did not have a right to appeal against the first refusal, the fact is that he had available to him the possibility of bringing judicial review proceedings. Ms. Naik submitted that the fact that he did not do so should not be held against him as he was a minor then being looked after by social services. However, the reality is that minors can and do bring judicial review proceedings. Further, and in any event, no explanation has been given for the failure to act promptly since reaching the age of 18. Finally, Ms. Naik submitted that the appropriate relief is that the first refusal be quashed and the defendant be required to take a fresh decision. This is quite an astonishing request, given the failure of Ms. Naik to address the damage that this would cause to good administration if a decision made more than six years earlier and when the claimant has twice had specific removal directions issued against him is quashed and the defendant ordered to make a fresh decision on the hypothetical basis that he is still a minor.

The lawfulness of the removal directions issued in 5 April 2012 (the first claim)

[36]As stated above, the claimant contends that the removal directions issued on 5 April 2012 are unlawful because they rely upon the second refusal and the determination of Judge Dawson. He contends that he was materially disadvantaged in the making of the second refusal and the determination of Judge Dawson such that the defendant may not now lawfully remove him.[37]I do not accept Ms. Naik’s submission that, in reaching his finding that it would be safe and not unreasonable for the claimant to relocate to Kabul, Judge Dawson relied upon the claimant's sister either visiting the claimant or going to live in Kabul or the claimant's brother returning to Kabul. In my judgment, when para 22 of the determination is read as a whole, it is plain that Judge Dawson’s primary finding was that it would be reasonable for the claimant to relocate to Kabul as a lone adult who knows no one in that city. It is plain that he found that the claimant would be able to fend for himself as a young person with no family in that city and that he did not base his finding in relation to internal flight on the claimant’s sister either visiting him there or living with him there and/or his brother joining him there upon his eventual release.[38]Ms. Naik submitted that Judge Dawson was considering the reasonableness of relocation to Kabul for a 20-year old who had suffered the trauma of witnessing his father being shot dead and that this is how the claimant demonstrates prejudice. The suggestion that the judge was considering the situation of a person who had been traumatised sounds very much like an attempt to challenge the lawfulness of the judge's determination itself and an attempt to re-argue his reasoning. In any event, there is no reason at all to think (if this was being suggested) that Judge Dawson failed to take into account the fact that the claimant had witnessed his father being shot.[39]I am therefore satisfied that Judge Dawson considered the reasonableness of relocation on the basis of the claimant being alone in Kabul. Thus, I am satisfied that the claimant has not been disadvantaged in the making of the second refusal or the determination of his appeal as a result of the breach by the defendant of her duty to endeavour to trace his family in 2007.[40]Accordingly, there is no question of it being unfair to remove the claimant or so unfair that no reasonable Secretary of State would do so notwithstanding the fact that he is not at real risk of persecution in Afghanistan. The directions issued on 5 April 2012 are therefore lawful.[41]Finally, I should say that Ms. Naik submitted that the defendant’s consideration of the factors in the (now deleted) para 395C of the Statement of Changes in the Immigration Rules HC 395 (as amended) was deficient because it did not take into account the corrective principle. This was raised for the first time in her submissions in reply to Mr. Chapman. There has been a long history in this case, with arguments being modified or advanced new and without notice over the course of time. There have been three applications for a stay on removal and two or three applications for permission (including oral renewals). The claimant has already had every opportunity to put his case as fully as he wished without having to resort to bringing up new points at the last minute with no notice and no application to amend. Given the procedural history and given that this point was raised for the first time in closing submissions without any application to amend the grounds and that permission was needed, I refused to entertain the argument.

Conclusion

[42]The directions for the claimant's removal issued on 5 April 2012 and 14 August 2012 are lawful. The decision of the defendant of 3 January 2007 to refuse the claimant’s first asylum application is lawful. The claims are therefore dismissed.

Cited in 1 later judgment