Tribunal decisions

The decision

ASYLUM AND IMMIGRATION TRIBUNAL

AA (unaccompanied minors – reception on return) Afghanistan [2005] UKAIT 00143

THE IMMIGRATION ACTS

Heard at: Field House
On 13 September 2005
Determination Promulgated
12th October 2005
………………………………………

Before

Dr H H Storey (Senior Immigration Judge)
His Honour D Holden
Rt. Hon. Countess of Mar

Between

Appellant
and
Secretary of State for the Home Department

Respondent

Representation
For the appellant: Ms R Akther of Counsel, instructed by Malik & Malik
For the respondent : Ms K Pal, Home Office Presenting Officer

The Home Office policy is not to remove unaccompanied minors unless there are adequate reception arrangements in place. Where it is reasonably likely that members of the child’s immediate or extended family will make appropriate arrangements for his or her reception on return the removal of the child does not breach the policy and does not infringe his human rights.

DETERMINATION AND REASONS

1. The appellant is a national of Afghanistan. He seeks reconsideration of a determination by Adjudicator Mr A.J. Martin notified on 6 January 2004 dismissing his appeal against a decision refusing to grant asylum and refusing him leave to enter.

2. The appellant claimed that he would be targeted by the authorities because his father was a military officer working for the intelligence department of the communist government. He also expressed fears of serious harm at the hands of the Taliban and fears arising from his tribal identify as a Tajik. He believed too that as a national of Afghanistan under the age of eighteen he should have been granted Exceptional Leave to Remain in the UK. In this regard he relied on:

‘Unaccompanied asylum seeking children who have no claim to stay in the UK and who would, had they been adults have been refused outright, should continue to be dealt with under UASC policy and given ELR to age 18 or for four years for those under 14, unless there are adequate reception arrangements in place’ [Home Office Operational Guidance Note Afghanistan – February 2003]

In July 2003 UNHCR advised that persons in particularly vulnerable circumstances should not be required to return to Afghanistan. These include – unaccompanied minors’ [Page 7, para 6.224 – CIPU – October 2003].

3. The Adjudicator accepted that the appellant was a national of Afghanistan, and that his father was a colonel working for the Communist Party who had been killed in 1995. Although not prepared to accept much else the Adjudicator did proceed to consider whether, even taking the appellant's evidence as to other matters at its highest, he would be at risk currently. He concluded that the Northern Alliance regime would not have an adverse interest in him on account of his father’s past activities. He did not consider that the appellant would be at risk from remnants of the Taliban or that he would be at risk because he was a Tajik. At paragraph 98 he stated:

‘My understanding is that, if the appellant is returned, it will be to Kabul. Security there has considerably improved and life there is slowly returning to some kind of normality. I am satisfied that the authorities would be able and willing to give him effective protection. I from [sic] e.g. the Northern Alliance or any other group who might wish to attack him on political or ethnic grounds. No protection can of course be absolute or guaranteed.’

4. At paragraph 100 he stated:

‘Regarding human rights and again having regard to my above comments and findings I am satisfied that there would not be substantial grounds for believing he would be at real risk of a breach of any of his human rights under the ECHR. I am aware that Article 3 is absolute, has a high threshold and that a minimum level of severity must be shown. With regard to Article 8 he has family in Afghanistan and I do not consider that leaving his claimed relatives here would constitute a breach of that Article. In any event, in the circumstances, his return would not be disproportionate. The standard of proof in these matters is on the lower standard i.e. the same as in asylum cases, the onus being on him.

However, he did accept at paragraph 97 that he was the age he claimed (i.e. d.o.b. 25 October 1986).

5. The grounds of appeal contended firstly that in assessing the appellant's claims under Articles 3 and 8 the Adjudicator had failed to take into account real risk arising from the fact that he was a minor. Secondly they submitted that the Adjudicator had failed to make findings of fact on whether the appellant had established a family life in the UK and had failed to approach the question of the proportionality of the interference with his Article 8 rights correctly. It was wrong to consider the appellant's removal proportionate when under the Secretary of State's own policy minors were not to be removed.

6. Dealing first with the grounds raising Article 8, we do not consider that the Adjudicator materially erred in law. We would agree with Ms Akhtar that the Adjudicator's reasoning on the issue of family or private life as set out in paragraph 100 was cursory and inadequate. Nevertheless, since he did address proportionality, he must clearly have been prepared to proceed on the basis that the appellant's ties with relatives in the UK constituted a protected right under Article 8(1). Furthermore, whilst he failed to set out relevant considerations he took into account when assessing proportionality, it is not seriously arguable in our view that the appellant's circumstances brought him into the category of a truly exceptional case. He had only arrived in the UK on January 2003, he has known since arrival that this immigration status was precarious, his only family in the UK was with a cousin and the preponderance of his close family ties were in Afghanistan. His father may have been killed, but he had a mother and siblings, as well as a maternal uncle with a house in Kabul. The appellant confirmed before the Adjudicator that his mother wrote to him every so often and that she had sent her last letter (containing his father’s ID papers) one-and-a-half months ago.

7. Ms Akhtar pointed out that in evidence the appellant had also said he did not know the whereabouts of his family in Afghanistan and that he had not had a reply to his latest letter. However, it was reasonably open the Adjudicator to infer from the fact of correspondence that the appellant would be able to maintain or resume contact with his family on return to Afghanistan.

8. Ms Akhtar pointed out that the appellant's family home was in Logar, not in Kabul and on the appellant's own evidence his immediate family were still having difficulties. She reminded us that in paragraph 101 the Adjudicator had found that he could not relocate outside Kabul ‘in the current circumstances’. However, the Adjudicator's primary findings on the appellant's risk on return arising out of his past experiences were that he would not be of adverse interest to the Northern Alliance or be at real risk from Taliban remnants or anti-Tajik elements. In the light of those findings there was no proper basis for assuming that a return of the appellant to Kabul would prevent him from enjoying some sort of family life. Even if it were considered unsafe for the appellant to rejoin his family in his home area, his uncle had a house in Kabul as well as a friend there and the appellant had spent seven months in Kabul in their care. It was not reasonably likely therefore that the appellant would face having to arrive in Kabul without adequate reception arrangements being made by his extended family. They had taken active steps to ensure his care in Kabul in the past and there was no reason to ensure that would not take similar steps in the future.

9. These conclusions have a direct impact on the appellant's argument that the Adjudicator, like the Secretary of State, wrongly treated Article 8(2) considerations regarding effective immigration control as weighing heavily in this case in view of his own policy not to remove minors. As can be seen from the wording to that policy as recorded by the Adjudicator at paragraph 72, the policy does not apply where there are adequate reception arrangements in place. The policy is plainly confined to ‘unaccompanied’ minors, not to minors who can reasonably be expected to be met and received by family members on return. (We note that this is made even clearer by the wording of at least some other Home Office policy statements on UASCs (Unaccompanied Asylum Seeking Children): which, as we understand it, more expressly confine their scope to minors who have no family to return to and where adequate reception arrangements cannot be established).

10. The same general point applies to the UNHCR advice. It is unfortunate that the latter does not spell out that by ‘unaccompanied minor’ here they do not simply mean anyone still a minor in the receiving country who arrived unaccompanied, but rather mean a minor who would be returning to a situation in which he or she would not have adequate reception or family support. But this advice would not make sense if taken to apply to anyone who arrived in a receiving state as an unaccompanied minor, irrespective of the reception or family support arrangements likely on return.

11. This same point is fatal to the appellant’s Article 3 arguments. On the unchallenged findings of fact made by the Adjudicator in this case the appellant had family in Afghanistan. Although the Adjudicator can be criticised for not specifically addressing the unaccompanied minor points which were clearly put to him by the appellant's representatives (see paragraph 72), there was no material error of law involved here, since on return it was reasonably likely that his family members in Afghanistan would be in communication and would ensure that the appellant would be looked after by members of his extended family.

12. For the above reasons, the determination of the Adjudicator, although flawed in limited respects, does not disclose a material error of law.

13. Accordingly, the decision of the Adjudicator to dismiss the appeal on human rights as well as asylum grounds must stand.

DR H H STOREY
SENIOR IMMIGRATION JUDGE