UK - High Court, Hashemi, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber) & Anor, [2013] EWHC 2316 (Admin)
| Country of Decision: | United Kingdom |
| Country of applicant: | Afghanistan |
| Court name: | High Court |
| Date of decision: | 31-07-2013 |
| Citation: | [2013] EWHC 2316 (Admin) |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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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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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 a child asylum applicant who had his appeal against refusal of asylum considered after he had turned 18, and thus had become an adult. He complained that this breached Article 39 of the Procedures Directive (effective remedy).
Facts:
The applicant entered the UK as an unaccompanied child aged 14 and sought asylum. His claim was refused, but he was granted permission to remain in the UK until he reached the age of 17 ½, in accordance with government policy. He did not appeal his initial refusal of asylum; under UK law he should have been granted a second opportunity to appeal when nearing age 17 ½, however due to administrative errors he was not permitted to do so until he had already turned 18. He was then refused asylum, as an adult.
Decision & reasoning:
The applicant contended that the UK’s failure to attempt to trace his family members in Afghanistan had caused him prejudice, as he was denied evidence that could have assisted his case (e.g. that his parents were dead, as he maintained).
He also complained that he was denied an effective remedy (under Article 39 of the Procedures Directive), because his asylum claim was not determined while he was still a child.
In respect of the failure to trace his family, the Court held that given the sparse information the applicant had provided, there were no sensible steps the government could have taken, such that, on the facts of this case, no actual prejudice was caused by the government’s (admitted) failure to comply with its duty to trace.
In respect of an effective remedy, the Court accepted that it was in the applicant’s ‘best interests’ to have his asylum application considered while a child. However, the Court was not persuaded that the government had failed to provide an effective remedy overall, noting: (i) the applicant had a right of appeal after the refusal of his first application, aged 14, which he chose not to exercise; (ii) he could have sought to bring a claim at any time thereafter (and sought judicial review if refused) – he did not; (iii) he was given a full appeal, the fact that it was a few months after his 18th birthday was not unlawful given there are no time limits for determining an asylum claim in the Procedures Directive or otherwise. And in any event, the applicant could not demonstrate material detriment had occurred, given that he was still given leeway on the Benefit of the Doubt by the Tribunal judge, and his case had not turned solely on credibility.
Outcome:
Judicial Review Claim dismissed.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Asylum Seekers (Reception Conditions) Regulations 2005 - Reg 6 |
| UK - Nationality |
| UK - Immigration Act 1971 |
| Immigration and Asylum Act 2002 |
Cited Cases:
Other sources:
Other national cases law cited:
Secretary of State for Justice v Ahmadi[2013] EWCA Civ 512
Ahmadi (s47 decision: validity: Sapkota)[2012] UKUT 147 (IAC)
Adamally and Jaferi (section 47 removal decisions: tribunal procedures) [2012] UKUT 414 (IAC)
KA (Afghanistan) and Others v Secretary of State for the Home Department[2012] EWCA Civ 1014; [2013] 1 WLR 615
EU (Afghanistan) and Others v Secretary of State for the Home Department[2013] EWCA Civ 32
R (Cart) v Upper Tribunal[2011] UKSC 28; [2012] 1 AC 663
R (PR) v Secretary of State for the Home Department[2011] EWCA Civ 988
DS (Afghanistan) v Secretary of State for the Home Department[2011] EWCA Civ 305
R (Rashid) v Secretary of State for the Home Department[2005] 2005 EWCA Civ 744; [2005] Imm AR 608
R v Secretary of State for the Home Department ex parte Ravichandran[1996] Imm AR 97
SL (Vietnam) v Secretary of State for the Home Department[2010] EWCA 225
R (S) v Secretary of State for the Home Department[2007] EWCA Civ 546
R (S, H and Q) v Secretary of State for the Home Department[2009] EWCA Civ 142
R (AA (Afghanistan)) v Secretary of State for the Home Department[2012] EWCA Civ 1643
AA (unattended children) Afghanistan CG[2012] UKUT 16 (IAC)
R (TN (Afghanistan)) v Secretary of State for the Home Department[2011] EWHC 3296 (Admin)
R (Kadri) v Birmingham City Council[2012] EWCA Civ 1432; [2013] 1 WLR 1755
AA (unattended children) Afghanistan CG[2012] UKUT 16
HK (Afghanistan) and Others v Secretary of State for the Home Department[2012] EWCA Civ 315
SHL (Tracing obligation/Trafficking) Afghanistan[2013] UKUT 312 (IAC)).