UK - Court of Appeal, HK (Afghanistan) & Ors v Secretary of State for the Home Department, [2012] EWCA Civ 315
| Country of Decision: | United Kingdom |
| Country of applicant: | Afghanistan |
| Court name: | Court of Appeal |
| Date of decision: | 16-03-2012 |
| Citation: | [2012] EWCA Civ 315 |
Keywords:
| Keywords |
|
Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
Headnote:
This case concerns the State’s obligation to attempt to trace the family members of unaccompanied minor asylum seekers.
Facts:
The applicants were unaccompanied minors who arrived in the UK and sought asylum. Each had family members in Afghanistan, with whom they had been living, who had arranged for their flight.
In the Upper Tribunal (“the Tribunal”) their appeals were dismissed on the basis that there was no reason not to believe that their families were located in the same places as before, and thus that they would be able to care for the child applicants were they sent back to Afghanistan. The Tribunal noted that the child applicants had not made any efforts to contact their family members via the Red Cross and held this against the applicants; the onus was on the children to attempt to trace their families to establish that they would be unaccompanied children (and thus at risk) on return.
Decision & reasoning:
The Court noted that there was an obligation on the UK government to trace the family members of a child asylum applicant, under Article 19(3) of the Reception Directive, as enshrined in domestic law. It held that this duty was “intimately connected” with the asylum application decision-making process as the question of whether a child has a family to return to or not is central to the asylum decision. Thus the duty to trace falls to the government, not the child. That said, however, the Court held that the government’s failure to trace an applicant’s family would not automatically lead to the grant of asylum – every case depends on its own facts and is a matter for the fact-finding Tribunal to determine. These cases should be remitted back to the Tribunal, as it was best placed to take all facts into account.
The Court also pointed out that if the government’s efforts to trace families in Afghanistan are slow, this should not be allowed to delay a decision on an asylum case, particularly if the decision would be to grant protection. In such cases, the best interests of the child may require asylum to be granted. Later on, if the families are successfully traced, that may justify a revocation of refugee status, if the need for asylum is no longer deemed present.
Outcome:
Appeals allowed
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UNCRC - Art 3(1) |
| UK - Borders |
| Citizenship and Immigration Act 2009 - Section 55 |
| UK - Asylum Seekers (Reception Conditions) Regulations 2005 - Reg 6 |
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 22 March 2011, DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305 |
| UK - Asylum and Immigration Tribunal, 15 March 2007, LQ, Afghanistan [2008] UKAIT 00005 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| UK - Upper Tribunal, AA (unattended children) v Secretary of State for the Home Department, [2012] UKUT 00016 |
Follower Cases:
Other sources:
Paragraphs 68, 73 of the Guidelines on International Protection, United Nations Refugee Agency (UNHCR), 22 December 2009