A second chance for asylum for a former child refugee

A new decision from the Court of Appeal confirms the court is slow, even if the tribunal is not, to penalise children, who make their way across Europe and beyond, before claiming protection in the UK.  The reason is that whereas European countries, including Hungary, are designated safe countries by Act of Parliament, nevertheless, it must first be established if there was a reasonable opportunity to claim protection in the safe country before doing so in the UK: s8(4)) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

KA (Afghanistan) v SSHD [2019] EWCA Civ 914 (7 June 2019) involved a child aged 12, who, on the death of his parents, was, by his own account, trafficked and put to work in Turkey for 3 years before crossing (via the Balkan route) into Hungary and so Europe.  There, he was forcibly fingerprinted, but continued on, making his way to the UK from France and claiming asylum here as a child, aged 15, in October 2015.

In his claim for international protection the child claimed, plausibly enough, that three years before his father, a member of the Afghan national army, was sent threatening letters warning him to give up his work.  Improbably, the child confirmed in interview that there were three such letters, each sent on the day his home was attacked, the Taliban not waiting for a response.  Then, without witnessing their demise, the child claimed he was whisked away from his parents by a neighbour and transported to Turkey.

The dramatic unity of the child’s re-telling, though emphatic, did not quite resemble a forensic account of what had occurred, nevertheless, as the tribunal began by remarking, only to dismiss the claim in the next breath, in the ordinary course, an unaccompanied child is entitled to some benefit of the doubt.  Yet as often happens in such cases, the tribunal withdrew the credit due to him as a particularly vulnerable person because set against it was the fact that the child passed through Hungary, a safe European country, before reaching the UK.

Keen observers of events over succeeding years will know that in September 2018 the European Parliament initiated proceedings against Hungary for undermining Europe’s core values and the rule of law, but in August 2016 the Hungarian asylum system was already found seriously wanting, if not deliberately designed to deter international protection claims, by an English court in R (Ibrahimi) v SSHD [2016] EWHC 2049 Admin.  It followed therefore that the Immigration and Asylum Chamber of an expert tribunal ought to be alive to the possibility that there was no prospect of international protection in Hungary in this case.  

In the circumstances and without determining the claim itself, the Court of Appeal remitted the decision to the First-tier: whether to examine in truth if there was a reasonable opportunity to claim asylum elsewhere or simply to assess whether today the appellant’s account possesses the degree of truth necessary to earn a former child international protection as an adult.