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Boys to men: how to prepare asylum appeals for young Afghans

There are a considerable number of asylum claims in the UK by young Afghan boys and men. The number should not be overstated, though. The latest official immigration statistics show that Afghans are outside the top five nationalities claiming asylum in the UK and recent research shows that of 3,043 separated children who claimed asylum in the UK in 2015, 656 of them were Afghan. The overwhelming majority are thought to be boys.

This phenomenon has been the subject of academic study and there are also documentaries that offer insight. The Refugee Support Network yesterday published a new research report, After Return: documenting the experiences of young people forcibly removed to AfghanistanThe BBC’s Our World: Deported to Afghanistan follows several young men who had arrived in the UK as children but were removed to Afghanistan once they had turned 18. There is also In This World, Michael Winterbottom’s eye opening, harrowing 2002 documentary-style film following two fictional Afghan brothers making the journey to Europe.

Why do Afghan children travel to Europe?

In June 2010 UNHCR published a report called Trees Only Move In The Wind (large pdf). The thrust of the report can be discerned from the preface:

‘A tree does not move unless there is wind’ is an Afghan proverb which, roughly translated, means ‘there is no smoke without fire’, or ‘nothing happens without a reason’. The proverb provides an appropriate title for a report that tries to explain why significant numbers of Afghan children are making the difficult and dangerous journey to Europe, unaccompanied by their parents.

Essentially, the report suggests that the well documented particularly poor treatment of children in Afghanistan is a cause for the numbers of Afghan children arriving in Europe. It concludes:

Responsibility for this situation rests with a number of different actors. Afghanistan appears to have turned a blind eye to the role of smugglers in irregular migration, including children. Afghan parents, families and communities have allowed and encouraged the departure of their children on hazardous journeys, often to face greater dangers than those they might have faced at home, and all too often with the primary goal of sending back remittances.

European countries have complicated the situation by in most cases failing to establish best interest determination procedures and by waiting until Afghan children who are not in need of protection have “aged-out” (i.e. turned 18 years of age) before return is considered as an option.

Whatever the reasons, there are a significant number of Afghan asylum claims and asylum appeals. They are not easy cases to prepare and argue, at least once the client has turned 18. With thorough preparation and a good set of background facts that are properly articulated to the judge, it is possible to succeed with some such cases, though.

What happens when young Afghans are sent back?

The new After Return report by the Refugee Support Network is based on 153 interviews over an 18 month period with 25 care leavers forcibly returned from the UK to Afghanistan. It makes grim reading. The situation of the returnees was not that of other Afghans:

Young returnees struggle to imagine or create a future for themselves in Afghanistan, with happy memories of their formative years in the UK making their current reality feel even more difficult.

Seventeen of the returnees had contact with their family but only twelve, less than half, had been able to live with them. There was simply no support network available, from family or elsewhere, for most of the returnees. Mental health issues arose in 22 of the cases and physical health problems in 15.

Twelve of the returnees had first hand experience of security incidents, in particular being caught up in bomb blasts or suicide attacks. In three of the cases the returnee had been threatened as a result of issues arising from their original asylum claim and seven had been targeted simply because of their status as a returnee.

Only two of the returnees had been able to access any educational opportunities. None had found stable employment and 19 of the 25 young people monitored said that their work situation was so desperate they would have to leave Afghanistan again.

Indeed, 15 of the returnees reported that they intended to leave Afghanistan again, despite the dangers of the journey, and at the end of the research project six had done so and the whereabouts of a further eleven was unknown.

Unaccompanied Afghan children are refugees

Any unaccompanied child from Afghanistan for whom adequate reception arrangements in Afghanistan have not been made is by law a refugee. Separated children in Kabul are very clearly at real risk of treatment that would amount to persecution and which is for a Convention reason, which is their age.

In the case of LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005 the Asylum and Immigration Tribunal held that age is an immutable characteristic that cannot be changed and the basis of membership of a particular social group for children in Afghanistan:

We think that for these purposes age is immutable. It is changing all the time, but one cannot do anything to change one’s own age at any particular time.

LQ remains good law and was approved by the Court of Appeal in the cases of DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 30 and KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014.

On the issue of harm, in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) the Upper Tribunal concluded that:

…the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection.  Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.

Given these legal foundations, one might expect that a legally compliant Home Office fully au fait with its obligations towards children would recognise all separated Afghan children as refugees. Not so. Instead, these children are routinely refused asylum for spurious reasons and granted the far lesser temporary status of Discretionary Leave. This is done on the basis that… there are no adequate reception arrangements for the child concerned. Which of course actually makes the child a refugee.

If the child lodges and pursues an appeal, he or she should therefore win and eventually be granted refugee status. Many children do not; they do not know the importance of doing this (see below) and their social worker and/or lawyer do not bother on their behalf, instead allowing the child to sit back and accept the grant of Discretionary Leave.

Discretionary Leave lasts for either three years or until the child is 17 and a half. It can be renewed, but only if there is still a need for it. If Discretionary Leave (“DL”) is held for ten years then the person can apply for settlement.

If the child turns 17 and a half their application for leave will be refused. The original reasons for refusal of the asylum claim will be copied into the new decision and they will also be refused asylum again.

This time, though, the prospects of winning an appeal are much lower. Judges have less sympathy for men than boys, the arguments about danger to children are less clear cut and the former child will be trying their best to recall events that may have been several years ago and of which their understanding is child-like. Further, arguing that risk remains several years down the line is problematic; there will be no recent threats or danger, after all.

Family tracing duty

The EU’s Directive 2003/9/EC establishing minimum common standards for the reception of asylum seekers, often referred to as just “the Reception Directive”, imposes on all EU Member States certain legal duties. The idea is that this protects asylum seekers across the EU and also reduces incentives to claim asylum in one country compared to another.

One of these duties is to trace family members of separated children. Regulation 19.3 reads:

Member States, protecting the unaccompanied minor’s best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

This is a legal obligation but for many years the UK Home Office completely ignored it, eventually leading to a series of legal challenges. The Home Office was criticised for “deliberate and systematic” failure to comply with this duty in the case of KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014 (FM post: Significant step forward for young asylum seekers).

What was less clear was whether or to what extent this failure might be relied on by a child or former child to obtain some sort of redress later on. There are no financial losses involved, but the courts considered whether immigration status might belatedly be offered to such a person to put right the wrong he or she had suffered in the past.

After all, had the family tracing duty been properly carried out then this might have shown the child was telling the truth and that he or she had no family to return to and therefore that he or she was a refugee or at least that life would be very difficult indeed on return later on.

Ultimately, in the case of TN, MA and AA (Afghanistan) v Secretary of State for the Home Department [2015] UKSC 40, the Supreme Court decided that later asylum claims could not benefit from reliance on a historic failure by the Home Office to carry out family tracing. Where a child or even former child pursuing an asylum claim believes he or she has been prejudiced by the failure to carry out family tracing then an adjournment of any appeal can be sought. Where the child has attempting to assist with family tracing, that was something that might well count in the child’s favour when it comes to assessing their general truthfulness, but this was a matter for the fact finder.

For further analysis and background see the Free Movement post on the case, Family tracing: Supreme Court clarifies Rashid.

No “bright line” separates boys from men

Turning 18 is important as a matter of law but it is an entirely arbitrary line to draw between childhood and adulthood. The line has been drawn at different ages for different purposes in different contexts; 16 for sex, 18 for other purposes, 21 as a matter of tradition, 30 for women to vote between 1918 and 1928 in the UK.

In KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014 Maurice Kay LJ held as follows at paragraph 18 on the “bright line” point about whether risk magically diminishes on a person’s eighteenth birthday:

At this point, it is appropriate to refer to what I may call “the eighteenth birthday point”. Although the duty to endeavour to trace does not endure beyond the date when an applicant reaches that age, it cannot be the case that the assessment of risk on return is subject to such a bright line rule. The relevance of this relates to the definition of a “particular social group” for asylum purposes. In DS, Lloyd LJ considered LQ (Age:immutable characteristic) Afghanistan [2008] UKAIT 00005 in which the AIT held that “for these purposes age is immutable”, in the sense that, although one’s age is constantly changing, one is powerless to change it oneself. Lloyd LJ said (at paragraph 54):

“that leaves a degree of uncertainty as to the definition of a particular social group. Does membership cease on the day of the person’s eighteenth birthday? It is not easy to see that risks of the relevant kind to who as a child would continue until the eve of that birthday, and cease at once the next day.”

Given that the kinds of risk in issue include the forced recruitment or the sexual exploitation of vulnerable young males, persecution is not respectful of birthdays – apparent or assumed age is more important than chronological age. Indeed, as submissions developed there seemed to be a degree of common ground derived from the observation of Lloyd LJ.

This enables an argument that a young Afghan man who has just turned 18 is still at the same risk and for the same reasons as a child. The argument is even stronger where there is evidence that the young man is particularly vulnerable and lacks self care skills or similar.

Immigration Rules

The Immigration Rules include provision for leave to be granted on the basis of “private life” in the UK. This is distinct from a full Article 8 human rights assessment, but where the relevant test can be met then this is a useful route to success.

The key test in most young Afghan cases will be paragraph 276ADE(1)(vi), which provides for leave to be granted if there are

very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.

There is no case law on the meaning of these words, so we are left with interpreting their natural meaning for ourselves. It could be argued that the absence of family, friends or any other support network is a “very significant obstacle” to integration, or that a quality personal to the claimant qualifies, such as a particular character trait or disability or other vulnerability. The After Return report certainly suggests that reintegration is in practice impossible for all but a small minority of those being returned from care in the UK.

Article 8 private and family life

Where an Afghan boy has crossed the legal boundary into adulthood and turned 18, it will be harder — but not impossible — to make out a successful asylum claim. Whether or not an attempt is made to argue an asylum claim, many Afghans in this situation will have an arguable Article 8 private and family life human rights claim and should do their best to prepare it properly.

The key to any Article 8 case is evidence. Some lawyers, this author included, err by spending too much time on law rather than gathering and preparing good quality evidence. The “bright line” legal argument is a potentially helpful one, but it remains the case that most Afghan young men will lose their cases; it is therefore important to make a case stand out and to make it as strong as possible. A wealth of good quality evidence is the key to that.

There will be some cases where there is some sort of exceptional dimension to the case, such as particular vulnerability based on mental health issues or physical disability. By their nature these will be unusual. Expert evidence to establish the fact and extent of the vulnerability will be needed as will strong evidence about what will happen if the person is returned to Afghanistan.

In all cases based on Article 8, evidence of family-like and private life social, cultural, educational and other connections to the UK will be critical. Such evidence requires witnesses; current and former foster carers, friends from school, teachers, social workers, counsellors and anyone else who can vouch for the young man should be approached. Many young men are reluctant to do this because they do not like to ask favours, they are proud and they do not want to appear needy or vulnerable. This tendency must be resisted and overcome.

It is best if the witnesses can attend court. The more the merrier. More than 10 or 12 is probably excessive but it is helpful to convey in the strongest way possible that the young man is genuinely well regarded and integrated, to the point that many different people are willing to go out of their way and come to court to support him. Judges tend to be self important (it is virtually part of the job description) and attending court is the best, perhaps only, way anyone can show their respect to a judge. Written statements by those “unwilling” to attend in person are bound to be given less weight.

With considerable social and community support for a particular Appellant, perhaps combined with his having done very well at school or college (I have had the privilege to represent young Afghans who have qualified for university), there is a possibility that an appeal might succeed. Without that visible support, though, an appeal on private life human rights grounds is basically doomed to fail.

Credibility, current risk and country information

As ever with any asylum case, it is very important to establish that an applicant

(a) has been telling the truth (in the parlance of asylum determination that he or she is “credible”); and

(b) faces a well founded fear of being persecuted if returned.

This is just as important in Afghan cases as in other asylum cases. Country information can be very important for establishing both credibility and current risk. The background to the case can be very important, though. In some Afghan appeals there will already have been positive or negative findings by the Secretary of State in an asylum determination or by a judge in an appeal determination. Where the truth of the claim has already been accepted then this will form the basis for arguing future risk. Where credibility has been rejected, this will normally form the basis of deciding risk on return, and this will evidently make it very hard for an applicant to succeed.

It may be possible to cast doubt on the safety of past negative credibility findings. The key case to consider is Devaseelan. It will normally be necessary to show important new information or evidence.

Blood feuds

It is a cliche but Afghan society does seem to be based very much on patriarchy, loyalty and honour. From time to time this gives rise to significant disputes within or between families where revenge is sought. These blood feuds can be inter generational and often result in violence and murder. There is a useful thematic country information report by CORI on Afghan blood feuds dating to February 2014 which provides good background information on the subject.

Young Afghan men have sometimes been told that they are the potential victim of a blood feud, although they will also often have little idea how or why other than that their father has disappeared from their lives. As youngsters, particularly in a patriarchal society, they are largely dependent on what they are told, and have little or no additional information they can add.

Blood feud based asylum claims can be difficult to argue successfully but are not impossible. Where there is country information referring to the feud or to key individuals named by the claimant, this may be sufficient to show a real risk. Relocation to another part of Afghanistan will always be an issue in such cases, though, as the Home Office is likely to argue that any risk is localised.

There is apparently a Country Guidance case pending but it can be a very long time before Country Guidance cases are promulgated.

Indiscriminate violence

Refugee status is the “gold standard” of international protection but it is not available to everyone who faces a high level of threat or danger if returned to their country of origin. The EU’s Qualification Directive 2004/83/EC provides a type of protection called “subsidiary protection” or, in the UK, “humanitarian protection”to a person who faces

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict

This test originates in Article 15(c) of the Qualification Directive. The interpretation of the test has troubled the courts on a number of occasions, not least because the apparently contradictory requirement to show individual threat from indiscriminate violence. The key cases on interpretation are Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department[2009] EWCA Civ 620.

In Afghan cases, the key case on whether country conditions reach the level of indiscriimnate violence in a situation of internal armed conflict is AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC). Essentially, the tribunal concluded that while there is an internal armed conflict, the level of violence is not such that all civilans are at high enough risk to qualify for protection under Article 15(c). The tribunal accepted that there might be some people at enhanced risk because of their personal characteristics but declined to speculate on what those characteristics might be. Journalists and physicians were mentioned as possibilities because their professions woud tend to expose them to greater risk than others.

Relocation to Kabul

Asylum in the UK is not available to a person who can safely and reasonably relocate within their own country. An Afghan asylum seeker might be able to claim risk in their home area from local warlords or the Taliban but that risk might be localised; on relocation to Kabul the Home Office will argue in such cases that there would be little danger of the person being detected and in any event he or she could seek the protection of the authorities there.

Internal relocation within Afghanistan was considered by the tribunal in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC). The tribunal held that most male Afghan returnees could be expected to relocate to Kabul, but that lone women and female heads of household could not and went on (headnote):

Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and “reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city’s poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.

The use of the phrase ‘in general’ in this excerpt is clarified by [243] of the determination:

As regards Kabul city, we have already discussed the situation in that city and we cannot see that for the purposes of deciding either refugee eligibility or subsidiary protection eligibility (and we are only formally tasked with deciding the latter) that conditions in that city make relocation there in general unreasonable, whether considered under Article 15(c) or under 15(b) or 15(a).  We emphasise the words “in general” because it is plain from Article 8 (2) and our domestic case law on internal relocation (see AH (Sudan) in particular) that in every case there needs to be an inquiry into the applicant’s individual circumstances; and what those circumstances are will very often depend on the nature of specific findings made about the credibility of an appellant in respect of such matters as whether they have family ties in Kabul… [Emphasis in original]

A young man just turned 18 returned to Kabul will certainly face formidable challenges, as the After Return report makes very clear. Some such young men will be entitled to protection, particularly where they are vulnerable in some way.

Evidence of vulnerability will therefore be critical and it is important to obtain such evidence from strong witnesses such as the responsible social worker, any current or former foster carer, a medical expert or counsellor if there is one or pastoral staff at school or college. If the evidence suggest, for example, that the young man would struggle to manage on his own in the UK in familiar surroundings, there is a good argument such a person cannot safely and reasonably relocate to Kabul if he has no family available to support and assist him.

Conclusion

Asylum claims by separated Afghan children should be straightforward and refugee status should normally be achieved on appeal. The problem arises where a young Afghan was granted only Discretionary Leave and no attempt was made at the time to challenge that decision to obtain full refugee status.

Belated asylum claims once a young Afghan turns 18 can succeed even if they are difficult, though, and Article 8 human rights claims can also succeed, particularly where the claimant has only recently turned 18 and if he is particularly vulnerable in some way. Evidence is critical, though, and just turning up to court with a witness statement and general country information is not going to be enough. Witnesses, good country information and good legal arguments will all be needed if a case is to succeed.

It is important not to abandon young Afghans; After Return shows us the grim future they face if they are returned.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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