HK (Afghanistan) & Others (Appellant) v. Secretary of State for the Home Department (Respondent)

"The court considered the following arguments submitted by the appellants:
- That the Upper Tribunal had not been entitled to draw any adverse inferences against these children from their failure to seek to contact family members in Afghanistan.
- Any evidence about the adequacy of reception facilities, in this case at least, should have been supplied by the Secretary of State (she is required by regulation 6 to endeavour to obtain that evidence).
- In the absence of any proper evidence to show that the child would be received in Afghanistan, asylum had to be granted.
- The decision to grant asylum was the only proper conclusion, quite irrespective of whether the section 55 duty had been formally taken into account.
- The court ought not to allow the Secretary of State to delay the determination of the asylum claim pending the fulfilment of her statutory duties. The court ought to require her to grant asylum status now; it is in the interests of these children that their status should be speedily determined so that they are not left
in a state of uncertainty.
- This approach would not be inconsistent with the child?s best interests. The Secretary of State would still be required to fulfil her statutory duty under regulation 6 to trace family members.

The relevant paragraphs are as follows.

34. The crucial premise for the submission that the Upper Tribunal should have upheld the claim to asylum is that it was not entitled to draw any adverse inferences against these children from their failure to seek to contact family members in Afghanistan. I do not accept that premise; the onus is on the asylum seeker to make good the asylum claim, and that applies to children as it does to adults. It is true that the particular
vulnerability of unaccompanied minors has led to special rules relating to the handling of their cases, such as in the way interviews are conducted, and there is a greater tendency to give them the benefit of the doubt where evidence is disputed (see the Guidelines on International Protection issued by the UN Refugee Agency, 22 December 2009, para 73 reproduced by Pill LJ in the DS case, para 14). But this does not involve any formal shift in the onus of proof.

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 was not an improper inference for the Upper Tribunal to make on the evidence before it.

36. I would add that even had the Upper Tribunal found that there were no family members who could receive these children in Afghanistan, it would not necessarily follow that they could not safely be returned. LQ is not a country guidance decision and the fact that the evidence in that case satisfied the AIT that the applicant, an orphan, faced a real risk of serious harm if returned to Kabul does not mean that all tribunals thereafter will have to reach identical findings of fact. Indeed, it would be an error of law for a tribunal to treat LQ as having made a binding conclusion of fact, as this court recognised in ZK (Afghanistan) to which I have made reference. It will depend on the evidence adduced.

37. Indeed, in the most recent country guidance case, AA (unattended children), Afghanistan [2012] UKUT 00016, the Upper Tribunal (Mr Justice Owen and Senior Immigration Judge Jarvis) concluded, after evaluating extensive evidence about the circumstances facing children in Afghanistan, that whether unattached children would be subject to severe harm would depend upon their individual circumstances and the precise location to which they would be returned.

38. So I do not accept that it would necessarily follow that the absence of someone to receive the child would compel the conclusion that asylum should be granted. Accordingly, even if Mr Bedford were right in his submission that the Upper Tribunal should have found that the appellants would not be subject to adequate reception facilities on return to Afghanistan, that would not be sufficient to establish the right to
asylum status. The case would still have had to be remitted to the Upper Tribunal on that issue.

39. I do not, however, accept the submission of Mr Blundell that the regulation 6 duty is quite distinct from the asylum application. The logic of that submission is that on remission, if for some reason the Secretary of State still failed in her duty to try to trace family members of these appellants, then on the current evidence at least, the Upper Tribunal would be obliged to refuse asylum provided it considered that sending the children back to their families was in their best interests. That would be so even though, if the Secretary of State had carried out her regulation 6 duty, she might have established that in fact there was no-one able to receive the child on return to Afghanistan. I find that an unattractive submission.

40. In my judgment, it is a necessary part of the section 55 duty to give primary consideration to the interests of the children that the Secretary of State should obtain as much information as is reasonably possible to assist her in determining where those best interests lie. If she fails unjustifiably to do that, I do not see how it can properly be said that she has complied with the section 55 duty. Moreover, the regulation 6
duty is in terms said to arise as soon as an asylum application is lodged and it is plainly intimately connected with the determination of that application. This suggests that it should be treated as a necessary element in the determination of an asylum application.

41. I do not accept, as Mr Blundell submitted, that analysing the duty in that way is inconsistent with the Court of Appeal decision in DS. On the contrary, in my view, the judgments of Pill and Rimer LJJ are wholly consistent with this analysis. Pill LJ said this (paras 44-45):

?I do not accept the submission of Mr Waite that the Secretary of State was entitled to do nothing by way of tracing enquiries. Regulation 6(1) of the 2005 Regulations, following the Directive, imposes a plain duty on the Secretary of State to endeavour to trace the members of the minor's family as soon
as possible after the minor makes his claim for asylum. I reject the submission that, because the Regulations deal with the reception of asylum seekers, the duty does not arise and I fail to
see how the Secretary of State can ignore her regulation 6 duty when considering the asylum application. The possibility and desirability of a safe return are factors which should be considered from the start, as stated in the policy document.

In ZH, Lady Hale, at paragraph 23, cited article 3(1) of the UNCRC, section 11 of the Children Act 2004 and section 55 of the 2009 Act. The need to ""safeguard and promote the welfare of children who are in the United Kingdom"", specified in section 55, requires a proactive attitude to the possibility of return to a family. That appears to be conceded, and asserted, in chapter 15 of the Secretary of State's policy document entitled ""Processing an Asylum Application from a Child"", though the care to be exercised in making enquiries is emphasised. Although not issued until after the Tribunal's decision, the guidelines issued by UNHCR on 22 December 2009 and the aide-memoire of August 2010 confirm the need. ?

42. At paragraph 47 he made it plain that the lack of co-operation by the applicant did not relieve the Secretary of State of her regulation 6 duty:

?The lack of cooperation does not relieve the Secretary of State of her duties. It would be relevant to a decision as to what the Secretary of State was required to do in a particular case and also to the eventual decision as to whether the right to asylum had been established in that case. But the duty cannot be ignored.?

43. Rimer LJ, in his judgment, also stated quite unambiguously that the regulation 6 duty was part of the ?best interests? consideration (para 88):

?I would [allow the appeal] for the reasons explained by Lloyd LJ. In arriving at its determination, the AIT gave no consideration to the obligation upon the Secretary of State, under section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that her functions in relation to the appellant's asylum application were discharged 'having regard to the need to safeguard and promote the welfare' of the
appellant whilst in the United Kingdom. It was conceded on behalf of the Secretary of State in ZH (Tanzania) that the section 55 duty extends to the disposition of an asylum application by a child such as the appellant (paragraph 24 of Lady Hale's judgment). In this case, however, there is a real question as to whether that duty has been discharged. For example, no steps have been taken by the Secretary of State towards enquiring as to the availability of adequate reception facilities for the appellant in Afghanistan; nor has a 'best interests consideration' of the nature referred to in Chapter 16 of the Secretary of State's policy document 'Processing an Asylum Application from a Child' been carried out. The result was that the AIT disposed of the appeal without the material necessary to enable it to decide it in accordance with the law.?

44. In my view, neither of these judgments supports the Secretary of State?s submissions on this point. The strongest support comes from the judgment of Lloyd LJ and in particular the following observations at para 68:

?The obligation to endeavour to trace under regulation 6 applies when a child has made an asylum application, but the application is to be determined on its merits, whether or not any steps have been taken pursuant to the obligation. To that extent, I would accept the submission of Mr Waite for the respondent that the obligation to endeavour to trace is distinct from the issues that arise on an application for asylum. If steps have been taken pursuant to the obligation under regulation 6, the
results, if any, may be relevant to the determination of the asylum application, depending on what the issues are on that application. In fact, no attempt to trace was made by UKBA in the present case. All that was done was to draw to the attention of the appellant or his foster-carer the facilities of the Red
Cross, with a view to his attempting to trace his relatives through that agency. There is a question as to whether the use made of these facilities by or on behalf of the appellant was appropriate, but nothing was done pursuant to regulation 6. It seems to me that that failure is not, by itself, relevant to the determination of the appellant?s asylum application. However, the Secretary of State is still subject to the obligation, and steps ought now to be taken to comply with that obligation.?

45. But Lloyd LJ accepted that the question whether family protection was available in Afghanistan was the critical issue underlying the asylum determination, and he noted that compliance with the regulation 6 obligation might cast light on that issue. For this reason he took the view that the case should be remitted on the basis that the renewed hearing should have regard to any further evidence relating to the issue of
family protection, and that the tracing duty under regulation 6 should be carried out before the matter was reconsidered by the Upper Tribunal.

46. I do not read Lloyd LJ?s judgment as endorsing a principle that the regulation 6 duty is always irrelevant to any asylum application. In my judgment he was merely saying that breach is not, of itself, relevant. In my view he was thereby recognising that there may be cases where the Secretary of State or a tribunal could make a determination on an asylum application in circumstances where regulation 6 had not been complied with, but that would not necessarily compel the conclusion that asylum should be granted. I would not dissent from that proposition, as I indicate below. The significance of an unjustified failure to trace is not that regulation 6 has not been complied with but rather that the decision maker is not in a position to assess the best interests of the child. In any event, if Lloyd LJ did mean to lay down the principle relied on by the Secretary of State, that was not endorsed by the other two judges and
is not in my view binding.

47. It follows, in my judgment, that even if the Upper Tribunal had had regard to the section 55 duty, it would have been entitled to conclude that it was not in a position properly to give effect to that duty without the information (or lack of it) resulting from the Secretary of State?s tracing inquiries.

48. I do, however, recognise that where the position of children is concerned, tardy inquiries by the Secretary of State, or delayed responses, can sometimes effectively defeat the claim because the child might have gained maturity before the case is finally determined. There is a tension in these situations between the obligation to determine the application speedily and the duty to obtain information about the child so as to secure its best interests. Moreover, it is not necessarily desirable to resolve that conflict by granting asylum where there is unreasonable or unexplained delay by the Secretary of State, or because the process is proving to be difficult or slow. That might not be in the best interests of the child.

49. I do, however, recognise that there may be cases where the resolution of this tension, having regard to the child?s best interests, would justify a tribunal granting asylum even absent any evidence from the Secretary of State. An obvious, and one hopes unlikely, example would be where the Secretary of State had deliberately failed to carry out the regulation 6 duty so as to ensure that the applicant achieved maturity before the decision was taken. But there may be other cases falling short of deliberate
delay where the Secretary of State is finding difficulties in obtaining information and the Tribunal feels it must in fairness to the applicant simply get on and determine the claim and fix his or her status. The Secretary of State?s own internal documents raise this as a possibility. Chapter 16 of the Secretary of State?s own policy document entitled ?Processing an asylum application from a child? contains the following passage:

?Family tracing can be a lengthy process, and contact with the family is only one aspect of the overall consideration. Any information obtained from the child at interview about the relationship ties with their family and their contact details and as well as information gathered from the family should be considered in the round with the other evidence available. Case owners should not defer making an initial decision pending the outcome of a tracing request, particularly if the decision is to afford international protection to the child. All tracing efforts should be minuted on CID and on the HO file and updated as necessary. Results of the tracing process can be forwarded as additional information within the appeal bundle in the event of a refusal and can be used at appeal even though it was not included in the decision letter.?

50. This is focusing on the initial asylum decision but in principle a tribunal hearing an appeal may properly adopt a similar approach, particularly where the decision, absent further evidence, would be to grant international protection. This would be on the basis that asylum could be revoked at a later date if and when further evidence of the child?s circumstances emerged.

51. However, I do not accept that it would be appropriate here for this court to require the Secretary of State to grant asylum. Potentially relevant factors have never been considered by the Upper Tribunal and it is necessary that they should be. This was the approach in DS, and I believe the same relief should be granted here. I do not accept Mr Bedford?s submission that there is a material difference between this case, where the appellants were found to have been unwilling to try to trace their families, and DS, where they gave false or misleading information to the Red Cross. In each case there was a lack of co-operation and in each an adverse inference was in principle open to the Tribunal.

52. Accordingly, the appeal succeeds on the grounds conceded by the Secretary of State,
and the matter must be remitted to the Upper Tribunal to consider these applications
afresh in the light of any evidence put before the Tribunal. This will include relevant
information, if any, which the Secretary of State is obliged to try to obtain pursuant to
her regulation 6 obligations. "