DS (Afghanistan) v SSHD – Case note

DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305

DS is from Afghanistan. He arrived in the United Kingdom in 2008, aged 15, and claimed asylum. In view of his age, he was granted discretionary leave to remain (DLR) until 2011 in accordance with the SSHD’s policy for minors.

DS’s claim, that he was in fear of the Taliban, had been rejected and his asylum appeal was based on the principle established in LQ (age: immutable characteristics) Afghanistan [2008] UKAIT 00005, that “…there would be no adequate reception facilities in Afghanistan and that, as an orphan …would be subject to the risks of exploitation and ill-treatment adumbrated in that evidence”. 

It also held that age is an immutable characteristic and so any harm suffered would be for a convention reason, namely being a member of a particular social group.

The main issue for the Court of Appeal was whether the SSHD is under a legal duty to enquire into whether adequate reception facilities exist for a minor if returned, and to take the results of the enquiry into account when considering an asylum claim.

Held

The Court held that the SSHD is so obliged; the majority holding ‘for the most part’ as a matter of domestic law (s55 of the Borders, Citizenship and Immigration Act [2009], and the Supreme Court decision ZH (Tanzania) v SSHD [2011] UKSC 4).

The Court reminded itself of the acceptance on behalf of the SSHD in ZH

‘…that the duty under section 55 applies not only to how children are looked after while decisions about immigration asylum deportation or removal are made, but also to those decisions themselves, and that a decision taken without having regard to the need to safeguard and promote the welfare of the child will not be in accordance with the law.’

“The obligation is imposed generally. It has to be considered in relation to a potentially wide variety of cases in which a child applies for asylum or other protection. The child may be an orphan in every sense, with no parents and no-one else in a position to provide the protection of a parent. He or she may have become separated from his or her parents altogether involuntarily, through events in the country of origin or elsewhere. On the other hand the child may have been abandoned by his or her family, or rejected or ill-treated by the family, so that protection is sought against the family. The child may have come here as a result of trafficking. The present case is not in any of these categories, unless the appellant is right to contend that he is, in practice, an orphan…The level of risk and the availability of protection against that risk are therefore at the heart of this case.”

Accordingly, the SSHD has a legal duty to investigate reception arrangements which may be relevant to the asylum claim. The lack of appellant cooperation in tracing family members via the ICRC ‘…does not relieve the SSHD of her duties.”

A grant of DLR in accordance with the SSHD’s policy for minors is not an answer to the adequacy of reception arrangements (per LQ) in regard to the asylum claim because the DLR policy is applied in a “precautionary way.”

The fact that, at a given moment, the SSHD is not satisfied as to the suitability of reception arrangements does not show that no suitable arrangements do or can exist. That will depend on what enquiries have been made, and with what result “…a failure to be satisfied at a given time does not give rise to any wider inference as to the position.”

Comment

This is another endorsement of the applicability of s55 to immigration decisions, and also another to affirm the position that a grant of DLR based upon inadequate reception arrangements does not equate to the same when deciding upon the asylum matter.

The Court recognized a definitional problem where ‘age’ is the social group; it ‘…leaves a degree of uncertainty… 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 a person who is a child would continue until the eve of that birthday, and cease at once the next day.’ However, the Court helpfully continued that it is ‘…sufficient that a particular social group is recognised consisting of Afghan citizens who are under 18 years old and who are orphans, whether strictly speaking or in practical terms.”

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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