Firstly, I should apologise for getting behind with my updates. I have nominally been on holiday this last week and my internet connection, perhaps fortuitously for my holiday, died unexpectedly half way through. Briefly, we have seen a major judgment from the Supreme Court on detention issues and a major announcement on foreign students, representing the final end to Tony Blair’s drive to recruit foreign students, started in 1999. I’m going to begin my catch up with a pair of interesting judicial decisions on children, though, and return to these other subjects next week. As I’m delivering three training sessions on this subject next week, the children cases take personal priority (one of the courses is public, click here for details).
In DS (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 305 the Court of Appeal held as follows:
- LQ (Afghanistan) is correct regarding age as a particular social group in Afghanistan, for child orphans at least
- The Secretary of State is under an obligation to attempt proactively to ‘trace’ the family members of an unaccompanied child asylum seeker. This obligation is imposed by Article 19.3 of the Reception Directive (European Community Directive 2003/9/EC)
- This contrasts markedly with the approach of the Upper Tribunal in the recent widely criticised HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG  UKUT 378 (IAC) case, where the tribunal held that the obligation is on the child, not the Secretary of State. This new case effectively disapproves HK in this key respect as well as others.
- The Secretary of State must consider the best interests of a child affected by an immigration decision. The obligation is imposed by section 55 of the Borders. Citizenship and Immigration Act 2009 and for the reasons set out in ZH (Tanzania). The failure to consider the best interests renders a decision unlawful and the immigration tribunal must allow such an appeal, with the effect of the matter being remitted to the Home Office for further consideration
- Importantly, section 55 BCIA 2009 is justiciable before the immigration tribunal: see paragraphs 82 and 83
The majority judgment is that of Lord Justice Lloyd, with whose reasons Rimer LJ agrees. This case is an important one and will affect basically all children cases in the tribunal by effectively adding a new ground of appeal.
The second case adds insult to injury for those who decided HK (Afghanistan). It is an unreported determination by Senior Immigration Judge Jarvis, reference AA/01079/2010 and promulgated on 27 February 2011. It has not yet appeared on the IAC website as far as I can see. In it, that panel of the tribunal find that:
- There is an obligation on the Secretary of State to trace families, as in DS above
- Therefore the failure of a child to take the initiative and do the tracing themselves should not be held against them (even just writing this underlines how absurd the original suggestion was)
- HK (Afghanistan) is not reliable as a Country Guideline case because it was not designated as such prior to the hearing (meaning that the representatives were not notified or prepared to deal with it as a CG case) and because of various failings on the part of the tribunal in failing to take account of country information
Both of these cases, taken alone or together, very strongly suggest that HK (Afghanstan) should not be followed and is not good law. However, anyone citing the Jarvis case will need to comply with the practice direction on unreported determinations.
As referenced above, I’ll be discussing these and other recent cases at a training course for HJT Training next week.