The government has won a significant victory for its dealings with Afghan minors.  The Supreme Court, the highest court in the UK, has ruled that children are in no better position to win asylum than anyone else.  The court ruled that a failure to conduct family tracing in the past does not necessarily improve a person’s chance of winning asylum today.  In a further win for the government, the court ruled it had been lawful to delay a right of asylum appeal to children with limited leave of less than one year.

Attention must now shift to a concrete approach to the assessment of asylum claims contained in the Qualification and Procedures Directives.

Importantly and for the first time it is accepted at the level of the Supreme court that asylum is not a matter of discretion, but one which must be decided on the evidence before a tribunal or a court. The court has left open the question whether judicial review in the UK is an effective remedy for the purposes of Union law.

The court offered too that tracing may continue to have relevance even after a child has notionally reached adulthood. Claimant lawyers may find support in the court’s ruling for requests to adjourn proceedings so that investigations, with government help, may be completed before final determination of an asylum claim. Claimant lawyers may wish to explore the exercise of public law remedies to compel government to gather evidence in support of a child’s asylum claim.

Becket Bedford
24th June 2015

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