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AA (unattended children) Afghanistan CG
Factual and Procedural Background
The appellant, a citizen of Afghanistan from Kabul Province born on 1 January 1994, arrived in the United Kingdom as an unaccompanied child on 7 May 2009. He sought asylum claiming a real risk of persecution on return to Kabul due to his status as a separated child and his family connections to individuals opposed to the Taliban, including a father who was an informer for the government and a brother who was an army commander killed by the Taliban. The appellant also claimed persecution based on his own political opinion evidenced by singing an anti-Taliban song at a public event.
The respondent refused refugee status on 21 October 2009 but granted discretionary leave until 1 July 2011. The appellant appealed, and his appeal was dismissed by an Immigration Judge on credibility grounds. The appellant sought permission to appeal, which was granted by Upper Tribunal Judge Jarvis on 7 May 2010 due to an error of law relating to the failure to consider the appellant’s status as a child and relevant evidence concerning unaccompanied children.
The appeal was heard on 28 October 2010 and 23 May 2011 before the Upper Tribunal. The issues included the appellant’s refugee and humanitarian protection claims, the application of section 55 of the Borders, Citizenship and Immigration Act 2009, and whether the appellant was a victim of trafficking or debt bondage. The AIRE Centre was joined as an interested party. The hearings involved consideration of country guidance and extensive documentary and expert evidence.
Legal Issues Presented
- The proper approach to an application for asylum and/or humanitarian protection by a child.
- The application of section 55 of the Borders, Citizenship and Immigration Act 2009 concerning the best interests of the child.
- Whether existing country guidance on children and indiscriminate violence in Afghanistan remains valid in light of updated evidence.
- Whether the appellant is entitled to recognition as a refugee.
- Whether the appellant is entitled to humanitarian protection.
- Whether the appellant is a victim of trafficking and/or debt bondage.
- Whether there has been a failure to conduct family tracing enquiries.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
ZH (Tanzania) v SSHD [2011] UKSC 4 | Obligation to safeguard and promote the welfare of children in immigration decisions; best interests of the child as a primary consideration. | Applied to require that the appellant's best interests be a primary consideration in substantive asylum and humanitarian protection decisions. |
HK and Others (minors indiscriminate violence forced recruitment by Taliban contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) | Distinction between children living with family and unaccompanied children regarding risk from armed conflict in Afghanistan. | Confirmed that children living with family face some risks but not to a level justifying international protection for all; unaccompanied children face greater risks that must be considered. |
GS (Article 15(c): Indiscriminate Violence) Afghanistan CG [2009] UKAIT 0044 | Threshold for indiscriminate violence sufficient to grant humanitarian protection under Article 15(c) Qualification Directive. | Held that the level of violence in Afghanistan did not meet the threshold for all civilians; this guidance was considered but updated evidence was reviewed. |
FA (Iraq) v SSHD [2010] EWCA Civ 696; [2011] UKSC 22 | Claims to humanitarian protection and refugee status in the context of armed conflict and political opinion. | Considered in relation to the appellant’s claim to humanitarian protection following political opinion grounds. |
DS (Afghanistan) v SSHD [2011] EWCA Civ 305 | Application of section 55 of the Borders, Citizenship and Immigration Act 2009; family tracing obligations. | Applied to confirm that section 55 applies to substantive decisions and that family tracing is a procedural obligation, with relevance to asylum determination. |
R (Razgar) v SSHD [2004] UKHL 27 | Role of the Tribunal in asylum appeals and decision-making process. | Referenced to support the Tribunal’s role in considering material beyond that before the original decision-maker. |
R (Q & Others) v SSHD [2003] EWCA Civ 364 | Effect of control by agents on asylum seekers' ability to make claims. | Used to support that control by agents may affect the claimant’s conduct and credibility in making asylum claims. |
HK v Secretary of State for the Home Department [2006] EWCA Civ 1037 | Assessment of credibility of children in asylum claims. | Guidance on giving due allowance for age and maturity in evaluating children’s evidence was applied. |
R (Mlloja) v SSHD [2005] EWHC 283 (Admin) | Special considerations in assessing evidence of children in asylum claims. | Referenced for the principle that children may have difficulty answering questions with full understanding and insight. |
Court's Reasoning and Analysis
The court undertook a detailed review of the appellant's personal evidence, country background material, and expert reports. It reaffirmed the distinction between children living with family and unaccompanied children as established in prior country guidance (HK and Others), noting that unaccompanied children face heightened risks including indiscriminate violence, forced recruitment, sexual violence, trafficking, and inadequate child protection mechanisms.
The court applied section 55 of the Borders, Citizenship and Immigration Act 2009, holding that the best interests of the child must be a primary consideration in substantive asylum decisions. It considered international and domestic legal instruments, including the UN Convention on the Rights of the Child and relevant EU Directives, to guide this assessment.
The appellant's credibility was carefully assessed with regard to his age, psychological condition (PTSD and arrested emotional development), and the control exercised by agents during his journey. The court found his account generally credible, supported by independent country evidence and expert opinion.
On the merits, the court accepted that the appellant had a well-founded fear of persecution by the Taliban due to his family’s association with the government and his own political opinion. The risk was established both in his home area and Kabul, with little prospect of safe internal relocation. The court emphasized the importance of family tracing, noting the respondent had not conducted such enquiries, but determined the claim on its merits regardless.
Given the findings, the appellant was entitled to refugee status. The claim to humanitarian protection was considered unnecessary to decide but would also have succeeded had refugee status not been granted.
Holding and Implications
The appeal is allowed on asylum and Article 3 ECHR grounds. The appellant is recognized as a refugee due to a well-founded fear of persecution by the Taliban linked to his family connections and political opinion. The appellant’s age and status as an unaccompanied child were central to the court’s consideration, with his best interests treated as a primary consideration in line with section 55 of the Borders, Citizenship and Immigration Act 2009 and relevant international obligations.
The appeal on humanitarian protection grounds is dismissed as unnecessary to decide, but it is noted that the appellant would have qualified for such protection.
This decision directly affects the appellant by granting refugee status and does not set new legal precedent beyond affirming existing principles on child asylum claims, best interests considerations, and the application of country guidance on Afghanistan.
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