The Court of Appeal has heavily criticised the UK Border Agency (UKBA) today, in its long-awaited judgment KA (Afghanistan) and Ors v SSHD [2012] EWCA Civ 1014, for systemic failure in the treatment of unaccompanied minors who claimed asylum between 2006 and 2010.
Put simply, the UKBA failed in its duty to try to put Afghan children, arriving here alone aged 15 or 16, back in touch with their families. Had the UKBA succeeded in doing so, these former children could have been returned to their families by now. Instead, it is claimed that, because the UKBA made no attempt to contact their families in Afghanistan, uncertainty over their ability to arrange their own family reunion if returned unlawfully deprived them as unaccompanied children of refugee status.
The Vice President of the Court of Appeal caricatured the Secretary of State’s denial that she had done nothing to discharge her duty to KA and the other Afghan children over 4 years, a period of escalating warfare in Afghanistan, as a claim to be entitled to do “next to nothing”.
Becket Bedford, a leading asylum barrister at No5 Chambers was led by Raza Husain QC, the leading public law silk at Matrix Chambers, and instructed by Birmingham law firm Sultan Lloyd solicitors. Mr Bedford acted throughout for 6 of the 8 former children, whose claims were selected by the Court last autumn, to test the important question whether they should have a remedy for the UKBA’s failures to them as children now they are adults.
In a resounding victory for unaccompanied minors, the Court agreed that there should be a remedy for historic wrongs to them if their child applications for asylum were caused substantial prejudice as a result. It was no answer to say “that was then, this is now” under the common law.
In a response to a Freedom of Information Act request dated 27 March 2012 the UKBA confirmed that some 14,000 unaccompanied children claimed asylum in the UK between 5 April 2005 too 31 January 2012.
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