AA (Afghanistan) – Home Office policy declared unlawful

Sun, 16 Jan 2011

AA (Afghanistan) CO/2761/2011 [neutral citation awaited], Admin Court - HHJ Seys Llewellyn QC (judgment 22nd December 2011, Sealed Order 10th January 2012).
 
Facts: 
 
Claimant (‘C’) arrived in the UK in 2008 and claimed to be an Unaccompanied Asylum Seeking Child (UASC). C is detained. Hampshire Social Services assessed him as 19 years-old and therefore UKBA treated him as an adult. C absconded after release from immigration detention centre. Asylum claim refused shortly after. C renews contact with UKBA in late-2009 and appeals decision to refuse his claim. Appeal rights are exhausted in 2010. Judicial review proceedings instituted to force Cardiff Social Services to carry out a new age assessment. Assessment is undertaken in August 2010, assessing him as 17 years and 6 months. UKBA accepts age assessment, but as outside UASC leave policy, grants no DL. C submits representations when C is 17 years and 6 months for fresh asylum/human rights appeal and grant of leave in line with AA (Afghanistan) [2007] EWCA Civ 12 to remedy ‘substantial loss’ of leave which would have been granted at the time his asylum claim was decided if not for the incorrect age assessment, which would then have lead to an in-country right of appeal if an extension application to that leave was refused. There is a series of exchanges between the two parties prior to C’s 18th Birthday. A week after his 18th Birthday, in February 2011, after having previously indicated that C would be re-interviewed for fresh asylum/human rights application, the SSHD as the Defendant (‘D’) states no fresh claim, and no leave, as C is now over 18 and outside UASC policy. D is silent with respect to AA (2007) leave.
 
Analysis of Legal Submissions: 
 
The UASC policy from April 2007 grants leave up to 17 years and 6 months. The published Discretionary Leave policy confirms the UASC category leave and separately provides for a grant of 3 years leave, by default, for classes outside the UASC policy. The Court of Appeal in AA (2007) directs the SSHD to consider what leave should be granted to an individual who has suffered loss of leave due to an incorrect age assessment, even where the individual is older than the UASC maximum . The unpublished policy drafted further to the judgment in 2007 (interim guidance no9 15/2/07) followed only the direction in AA(2007) that representations with respect to age should be submitted 21 days following a finding by a Tribunal of age. The published policy of D entitled ‘ Assessing Age’ [§ 13.4] indicates that where there is a finding by an Immigration Judge that at the time of making an application an individual is a child, even though they are now an adult, then specific advice should be sought from a Senior Case Worker. The only document, which currently exists with respect to policy guidance on this point, is the internal unpublished policy entitled ‘Guidance to SCW and STA when dealing with further representations in light of the case of AA (Afghanistan) [2007] EWCA Civ 12’, distributed internally on the 27th of June 2008, and provided to C’s lawyers for the first time on the 13th of December 2011. No reported case following AA (2007) has cited this internal policy. Following AA (Afghanistan) (2007) the Court of Appeal reiterated concerns regarding the ‘substantial loss’ of such leave in SL (Vietnam) [2010] EWCA Civ 225; [2010] INLR 651, but once again directed D to address this loss herself. 
 
D submitted that all the published policies were s.55 compliant and the internal policy would be read in-conjunction with these policies. D additionally submitted no bad faith/incompetence. D did concede that if it were not for the incorrect age assessment C would have been able to avail himself of refugee status before the 2010 Tribunal (permission stage concession, LQ (Age immutable characteristic) Afghanistan [2008] UKAIT 00005 and DS (Afghanistan) [2011] EWCA Civ 305 applied), but then stated, by the time of the substantive hearing in December 2011, that tracing enquiries would have occurred in 2010 if the correct age assessment had been supplied at that time. D submitted that she had been ‘misled’ by Hampshire Social Services with respect to the earlier incorrect age assessment. C submitted that between the submission and acceptance of the correct age assessment, when he was 17 years and 6 months, and his 18th Birthday, no tracing enquiries had been undertaken. S. 55 of the 2009 Act duties to determine expeditiously applied, and therefore C was a refugee up to his 18th Birthday. This was also a substantial loss suffered by C (as per AA (2007)), due to a conspicuous unfairness (R (Rashid) v SSHD [2005] EWCA Civ 744; [2005] Imm A. R. 608 applied, the Rashid point). C sought refugee status and 5 years leave to remain, as unlike Rashid where only the immigration leave was awarded as relief (ILR at that time), the delay between the availability of refugee status and decision on that point was only 8 days (from day prior to 18th Birthday to decision under challenge), rather than in the case of Rashid, 8 months.
 
Held: 
 
The fresh asylum/human rights claim consideration by D is separate from consideration of the AA (2007) loss of leave point (R (on the application of) Nzamvira v SSHD (CO/7467/2007) (unreported) (9. 12 .2008) applied). The current 2008 internal policy indicates no grant of leave solely on the basis of the loss of that leave. The Court held that this policy is therefore unlawful as it is contrary to AA (Afghanistan) [2007] EWCA Civ 12. The Court additionally held that the policy is also s.55 of the 2009 Act non-compliant as it does not safeguard the ‘welfare’ of a child who is over 17 years and 6 months, but under 18. The Court directed, pursuant to s. 87 of the Nationality, Immigration and Asylum Act 2002, that C be granted 3 years discretionary leave to remain on the basis that this is the default position as it is agreed that C does not come within a UASC grant as he is over 17 years and 6 months.
 
The Court did not grant asylum/5 years leave relief on the basis that all C lost was the ‘opportunity’ to make the asylum claim. C was not granted permission to appeal by the Admin Court on this point, and has now filed an Appellant’s Notice with the Court of Appeal.
 
Impact: 
 
Any individual who has been a victim of an age assessment, subsequently been found to have been incorrect, which would have placed them within the UASC category (under 18 years prior to April 2007 or under 17 years and 6 months since April 2007) during their stay in the United Kingdom should be granted 3 years discretionary leave.
 
Solicitors: Marie-Christine Allaire-Rousse and Derek McConnell, SouthWestLaw (Legal Services in the Community) Limited. Counsel: S. Chelvan, No5 Chambers. 

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