MA and AA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40

Four Afghan unaccompanied minors challenged the rejection of their asylum claims, arguing that section 83 NIAA breached the right to an effective remedy and that the Home Secretary's failure to trace their families vitiated the decisions. The Supreme Court dismissed the appeals.

Facts

The four appellants (TN, MA and AA) were Afghan nationals who arrived in the UK as unaccompanied asylum seeking children (UASCs). Each claimed asylum based on alleged risks of persecution in Afghanistan (typically arising from Taliban or governmental pressures connected with family members). In each case the Secretary of State rejected the asylum claim but, in accordance with published policy, granted discretionary leave to remain until the age of 17 years six months.

TN and MA were granted leave of less than 12 months and therefore had no statutory right of appeal under section 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA). AA, being younger, received leave exceeding one year. The appellants contended that the Secretary of State had failed to discharge her obligation under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 (implementing article 19.3 of the Reception Directive 2003/9/EC) to endeavour to trace their family members.

Issues

The appeals raised two discrete sets of issues:

• Whether section 83 NIAA, by restricting appeal rights to applicants granted leave exceeding one year, was incompatible with article 39 of the Procedures Directive 2005/85/EC (right to an effective remedy) and article 47 of the EU Charter.
• Whether the Secretary of State’s breach of her family tracing duty vitiated the rejection of the asylum claims and, if so, what remedy the tribunal or court should grant — including whether the appellants were entitled to refugee status, indefinite leave to remain, or a presumption of credibility.

Arguments

Appellants

TN and MA argued they were deprived of an effective remedy because, having been granted leave of less than a year, they could not appeal under section 83 and judicial review was inadequate. All appellants argued that the tracing duty was integral to the asylum decision-making process; that its breach materially prejudiced them; that a presumption of credibility should apply where they had cooperated; and that, applying R (Rashid) v Secretary of State for the Home Department, the proper remedy was a grant of asylum or unconditional leave rather than dismissal under the Ravichandran principle.

Respondent

The Secretary of State submitted that judicial review constituted an effective remedy, and alternatively that a deferred statutory right of appeal at the end of the discretionary leave period satisfied article 39. On tracing, she argued that any breach did not entitle appellants to refugee status where the substantive criteria were not met at the date of decision, and that the Ravichandran principle required assessment on current evidence.

Intervener (Office of the Children’s Commissioner)

The OCC submitted that the child’s best interests must be assessed before any tracing, that the child’s wishes must be taken into account, that no adverse credibility findings should be made without considering the child’s capacity to assist tracing, and that the duty to trace endures beyond a child’s 18th birthday as part of the search for a durable solution.

Judgment

Effective remedy under article 39

Lord Toulson, with whom the rest of the Court agreed, held that the statutory scheme satisfied article 39. Endorsing the reasoning of Beatson LJ in the Court of Appeal, he held that the deferral of the right of appeal under section 83 (until grant of leave exceeding one year, or until a subsequent removal decision under section 82) was not so long as to render the remedy ineffective. The Procedures Directive lays down minimum standards, requiring “an effective remedy”, not the most effective remedy. There were intelligible policy reasons for the restriction, namely to avoid clogging tribunals with cases where the Secretary of State would in any event reconsider the matter shortly. Article 47 of the Charter added nothing to the article 39 argument.

Family tracing and Ravichandran/Rashid

The Court reaffirmed the Ravichandran principle: an appellate tribunal determines an asylum appeal on the basis of the position at the date of the appellate decision, on the evidence before it. Lord Toulson endorsed the criticisms of R (Rashid) made by Carnwath LJ in R (S) and Sir Stanley Burnton in EU (Afghanistan), holding that Rashid lacked a satisfactory principle and should no longer be followed. Refugee status is conferred according to international treaty criteria and cannot be granted as a form of corrective relief for past administrative breach. Discretionary leave is a matter for the Secretary of State, not the court.

The Court rejected the contention that breach of the tracing duty gives rise to a presumption of credibility in favour of the appellant. The tribunal must act on the evidence it has. However, the appellant’s willingness to identify potential sources of corroboration may, as a matter of evidential assessment, be a mark of credibility. An appellant who considers himself prejudiced by the absence of tracing may seek an adjournment for it to be undertaken, and the duty endures even past the appellant’s 18th birthday.

The Court emphasised the importance of section 55 of the Borders, Citizenship and Immigration Act 2009 and the statutory guidance “Every Child Matters”, noting that tracing must be approached with proper regard to the child’s wishes and best interests, and by those with appropriate training (article 19.4 Reception Directive).

Application to the appellants

In MA’s and AA’s cases, the Upper Tribunal had disbelieved their core accounts, and the appellants had provided no information from which their families could be traced. The tribunal’s credibility conclusions were properly open to it. TN’s case had been remitted to the Secretary of State by the Upper Tribunal, and that disposition stood.

The appeals were dismissed.

Implications

The decision settles two important points in asylum law concerning UASCs:

• The statutory appeal scheme under sections 82–83 NIAA (as then in force) provides an effective remedy compatible with article 39 of the Procedures Directive, even where appeal rights are deferred until expiry of short-term discretionary leave.
• The Ravichandran principle applies without exception to asylum appeals. The Rashid principle is disapproved and should no longer be followed. Breach of the tracing duty under regulation 6 of the 2005 Regulations does not give rise to a presumption of credibility, nor does it entitle a court or tribunal to grant refugee status or indefinite leave as corrective relief where the substantive criteria for protection are not met.

The judgment preserves an evidential role for the tracing duty: a failure to trace may be relevant to assessing risk on return and to credibility, particularly where the appellant has cooperated by identifying potential sources of corroboration. Practitioners advising UASC appellants should consider whether to request the Secretary of State to undertake tracing and seek an adjournment of the appeal for that purpose. The duty to trace continues beyond the appellant’s 18th birthday as part of the search for a durable solution.

The decision is significant for asylum practitioners, the Home Office, tribunals, and unaccompanied children themselves: it clarifies that breach of administrative duties cannot be remedied by judicial grants of protection status detached from the protection criteria, while recognising the continuing importance of the tracing obligation and the child’s best interests under section 55 of the 2009 Act.

Verdict: Appeals dismissed. The Supreme Court held that section 83 NIAA was compatible with article 39 of the Procedures Directive, and that breach of the family tracing duty did not entitle the appellants to refugee status, indefinite leave, or a presumption of credibility; R (Rashid) should no longer be followed and the Ravichandran principle applies without exception.

Source: MA and AA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40