UK - Asylum and Immigration Tribunal, 15 March 2007, LQ, Afghanistan [2008] UKAIT 00005
| Country of Decision: | United Kingdom |
| Country of applicant: | Afghanistan |
| Court name: | Asylum and Immigration Tribunal |
| Date of decision: | 15-03-2007 |
| Citation: | [2008] UKAIT 00005 |
Keywords:
| Keywords |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Unaccompanied minor
Description
“’Unaccompanied minors’ means third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the Member States.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
Headnote:
For the purposes of assessing whether a child is a member of a particular social group, a person's age is an immutable characteristic.
Facts:
The applicant was a 15 year old boy from Afghanistan. He was a Shia Hazara originally from Nawabab in Ghazni province. His mother was presumed to have died in the armed conflict. He and his father moved to Southern Iran. His father died in 2003, and the applicant went to live with his father’s cousin who mistreated him before eventually asking him to leave the house. The applicant claimed asylum in the UK and was granted leave to remain but refused asylum. He appealed upon the basis that he should have been recognised as a refugee and granted asylum.
The Immigration Judge accepted the applicant’s account apart from the elements relating to his uncle. He found that there would be no adequate reception facilities in Afghanistan and that, as an orphan, the applicant would be subject to the risks of exploitation and ill treatment. The Immigration Judge held that if the applicant returned to Afghanistan now “he would be at risk of an Art 3 [ECHR] breach”. However, the Immigration Judge dismissed the appeal on the basis that "the 1951 Convention is not engaged" because the applicant is adequately protected by his leave to remain in the United Kingdom and that he was not a member of a particular social group on the basis that he was a child, because age was not an immutable characteristic. The applicant applied for reconsideration.
Decision & reasoning:
The Tribunal allowed the appeal for two reasons. First, it held that section 83 of the 2002 Act entitles an applicant to assert his status as a refugee independently of any risk of removal. It was the Immigration Judge's task to assess whether, at the date of the hearing before him, the applicant had the status of a refugee. The failure to make that assessment was an error of law.
Secondly, the Tribunal found that the Immigration Judge was mistaken in his approach to assessing whether the applicant feared persecution on account of his membership of a particular social group as a child. It held “...for these purposes age is immutable. It is changing all the time, but one cannot do anything to change one's own age at any particular time. At the date when the applicant's status has to be assessed he is a child and although, assuming he survives, he will in due course cease to be a child, he is immutably a child at the time of assessment”. Consequently, on the basis of the Judge’s findings, the Tribunal held that “the risk of severe harm to the applicant, as found by the Adjudicator, would be as a result of his membership of a group sharing an immutable characteristic and constituting, for the purposes of the Refugee Convention, a particular social group”.
Outcome:
Appeal allowed.
Observations/comments:
This case was considered by the Court of Appeal of England and Wales in ZK (Afghanistan) v Secretary of State for the Home Department [2010] EWCA Civ 749 and DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305 (see separate summary). This case was considered and distinguished by the Upper Tier Tribunal (Immigration and Asylum Chamber) in HK & Ors (minors, indiscriminate violence, forced recruitment by Taliban, contact with family members) Afghanistan CG [2010] UKUT 378 (IAC).