UK - AM (Afghanistan) v Secretary of State for the Home Department, [2017] EWCA Civ 1123

Facts:

AM was born in Afghanistan , allegedly in 1998. His father was a Taliban fighter, who was killed by the British armed forces in 2011. The Taliban held AM with the intention of training him to be a suicide  bomber, but he escaped to his maternal uncle, who facilitated his escape to Europe. In May 2013 he arrived in the UK and claimed asylum on grounds of a well-founded fear of persecution both from the Taliban and from the Afghan police.

The applicant is claimed to have mental health and psychological difficulties.  The Secretary of State refused his application on a number of grounds, but granted him discretionary leave to remain until he was 17 ½ years old. He appealed the decision to the First Tier Tribunal ('FTT') and then the Upper Tribunal; both appeals were rejected, despite two reports, one psychological (‘the Marsden report’) and the other relating to objective conditions in Afghanistan (‘the Sellwood report’.)

Since it became clear that the Tribunals had not taken account of these reports, the appellant and the Secretary of State both appealed to the Court of Appeal for guidance on the grounds that the Tribunals did not properly consider the impact of the appellant’s age, vulnerability and learning disability; and jointly asked what steps should be taken to ensure a fair hearing given these facts. The Lord Chancellor was given leave to intervene.

Decision & reasoning:

The Senior President called attention to the two expert reports (the ‘Marsden report’ on country conditions and the ‘Sellwood report’ which combines a psychological assessment with recommendations on court procedure (par 12). It was found that the Tribunals  had erred in law in not taking into account the Marsden report and the objective  risk to the appellant of return to Afghanistan (par 19). They had also ignored the Sellwood report’s advice about the specific ground rules to be adopted in relation to court procedure and the appellant’s access to justice, given his learning difficulties (par. 12-13). In the President's words: 'There were a number of options open to the judge in coming to a determination in that circumstance, including hearing from the expert or reasoning a contrary or different position, but effectively ignoring the psychologist’s strong advice was not one of those options.' 

The President noted the ‘core principles of asylum law and practice’ (par 21) such as: ‘a lower standard of proof’ when establishing the facts of the claim and future risks; the holistic assessment of an asylum claim, which should not solely be based on personal credibility; the critical nature of medical evidence, which is to be treated as part of the holistic assessment and may help to substantiate difficulties in recalling events; and ‘the highest standards of procedural fairness’ which would make it more possible to achieve the justice which had been absent in the Tribunal hearings. Since none of these aspects had been provided there had been a lack of sufficient and adequate protection in the asylum process for the individual profile, needs, interests and disadvantages that the appellant has as a highly vulnerable child.

He concluded that the Tribunals displayed ‘a failure of the system to provide sufficient and adequate protection [for] a highly vulnerable child.’ (par 22); and recalled (par 27) that the FTT Rules themselves, with the 2008 Practice Direction of 2010 are framed to encourage discretion, flexibility and the early identification of vulnerability. In other words, the requirements for the Tribunals to apply appropriate standards of fairness were already in place, they were simply not applied.  

With regard to international law, the UNHCR guidelines on child asylum claims referred to in par 35(a), and the application of article 8.2 ECHR in ZH (par 36) provide additional guidance.    

Accordingly, rather than drawing up a ‘checklist of general principles’ of good practice the Court left that aspect to the Tribunal Procedures Committee to consider (par 45). The Senior President added (par 44) that the tribunal rules allow a tribunal to appoint a litigation friend for a child; and Underhill LJ added (par 49) that the friend's powers ought to be clearly defined.  

Outcome:

Appeal granted; application remitted to be reconsidered by the FtT.

Subsequent proceedings:

The judgment is now final.

Observations/comments:

This case is interesting in that the appellant and respondent agreed that the Tribunals had erred in law, and the case should be referred for a fresh decision. It was clearly from the start a case where the age and  vulnerability of the appellant required an appropriate procedure to arrive at a fair determination; and the President spelled this out at a number of points in his judgment. The psychologist's report made a number of recommendations on the procedure, which were not followed (par 12); but apart from that the Tribunals Guidance Notes of 2010 stressed the importance of  the best interests of the child (par 31 and 32).  

Accordingly, while not introducing new legal considerations, the President recalled the principles of fairness and rules for tribunals which are already in place for cases concerning vulnerable minors (as applied for example in JL); but which the tribunals failed to implement in this case.

This case summary was written by Luke Hodgkin,  LL.M. human rights law, Birkbeck University. 

Other sources:

UNHCR Guidelines’ on International Protection; Every Child Matters – Change for Children (Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, November 2009); Equal Treatment Benchbook, Judicial College, 2015