UK - High Court, 6 December 2011, ABC (a Minor) (Afghanistan), R (on the Application of the Secretary of State for the Home Department) [2011] EWHC 2937

Facts:

The applicant an Afghan national, arrived in the UK at the age of 14. After years of abuse, both physical and moral, he had snapped and hit one of his tormentors, an elder half- brother, with a brick. The half-brother died. Some sympathetic members of the family assisted his departure from Afghanistan to Pakistan and thence to the UK, where he claimed asylum.  His mother’s whereabouts were unknown at the time of the appeal.His claim was refused and it was held that he was excluded from refugee status and humanitarian protection because of his acts in Afghanistan. In accordance with domestic law he was granted 6 months of discretionary leave.

Under UK law the applicant could not access the immigration courts to appeal against this decision, but after further representations to the Secretary of State were rejected, in what the Court held to be another decision, the applicant applied to the High Court for judicial review of the administrative decision. The matter came before the court for hearing, a third decision maintaining the original decision but giving more reasons was issued by the Secretary of State.Note: Judicial review in the UK does not address the substantive claim but only the question of whether the administrative decisions, first to refuse the asylum application and then to grant only six months renewable leave to remain were made lawfully.

Decision & reasoning:

The court found that the decision to exclude and refuse asylum was not lawful. The first two letters were inadequately reasoned and not in accordance with the law and the third letter which seemed to be a fresh approach, misrepresented the relevant English criminal law. The author failed to consider the significance of the applicant’s age and personal characteristics and so the third letter was also unlawful.

Although policy guidelines require the welfare of the child to be given weight, in this case there was "simply no coverage, let alone analysis, of the culpability of the claimant, or even reference to the guidance of the Secretary of State for the Home Department herself in paragraph 17.3 in relation to young persons and children’"§38.

On the second point, the question of the grant of six monthly periods of discretionary leave, the court again found against the state. The welfare of the applicant (minor), “now sixteen and estranged from well- disposed members of his family (including and especially his mother) had not been pivotal when the decision to grant six month reviews had been taken. The court reasoned that the strain of not knowing whether he would face removal every six months was not in his best interest as a sixteen year old. The court also found that if the applicant were to have a fair trial for any alleged crime it should be conducted within a reasonable time. Since it would breach his Art 3 rights to return him immediately, the decision to review the case every six months is “contributing to the unfairness of potential future proceedings in Afghanistan.”

Outcome:

Application successful. Secretary of State for the Home Department’s administrative decisions quashed.

Observations/comments:

Significant guidance on the importance not only for considering the best interest of the child but also on the care needed in applying the exclusion clauses.

Other sources: