Sheona York, Kent Law Clinic, University of Kent

1 HOW CHILDREN BECOME FAILED ASYLUM-SEEKERS for European Children s Rights Unit Seminar 5 Legal and policy responses to child migration in Europe 12/1/15 Sheona York, Kent Law Clinic, University of Kent

2 Aims of this research and of our postresearch work in this legal area: To ensure that young people, and those working with them, are better informed about the pitfalls and difficulties they face in the asylum process To contribute towards improved practice in those institutions involved in the asylum process Since the launch of our report we have spoken to Children s Services officials and law officers in Kent and East Anglia, and held 2 further Round Tables of local legal aid solicitors and NGOs working with young asylumseekers. Home Office officials have also received our report

Background to our research: a new legal argument the case of KA (Afghanistan) [2012] 3 The Court of Appeal s 2012 decision in KA (Afghanistan) raised the possibility of a corrective remedy for young asylum seekers in cases where the Home Office failed to make attempts to trace their family members, in breach of European law. [Rashid, R(S)] Local refugee support organisations knew of around 100 appeals rights exhausted young asylum seekers living in Kent. They approached Kent Law Clinic s new Immigration and Asylum project to see if we can make fresh claims to the Home Office on the basis that their claims had been handled unlawfully.

4 4 binding legal decisions about the specific factual situation in Afghanistan LQ (Age: immutable characteristic) Afghanistan (2008): an orphan under the age of 18 may belong to a particular social group and therefore entitled to refugee status. AA (unattended children) Afghanistan (2012)... unattached children returned to Afghanistan... [face] indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. The Court of Appeal in HK (Afghanistan) [2012] said that, where a family had assisted a child to travel to the UK, any assertion that family members are unable to meet them on return must be supported by credible evidence of efforts to contact those family members => Importance of age and proving lack of contact with family. Also AK (art 15c) Afghanistan CG [2012] says that return to Kabul is not generally unsafe or unreasonable

Research aims and methodology 5 As well as aiming to assist appeals rights exhausted former unaccompanied asylum seeking children with fresh claims if possible: We analysed the complete asylum process for these clients, considering the roles of the various institutional actors: social services, the Home Office, First Tier Tribunal and legal representatives. We examined the parallel development of corrective remedy caselaw in children s cases, especially cases dealing with family tracing.

6 Casework, first report and round table meeting The case files of over 30 young people have now been seen. The research project considered in detail 20 cases from Afghanistan. We assisted 10 clients with further representations, based on Article 8, out-of-time appeals or arguments based on past unlawful Home Office procedures. We circulated a preliminary report to local legal aid providers and NGOs specialising in children s asylum claims, who were invited to a round table discussion. Points and comments from that discussion are included in the final report.

7 How did these young people become failed asylum-seekers? Our main conclusions are: Most young people had not appealed their first refusal of asylum. All of them were later refused further leave, and became appeal rights exhausted or failed asylum-seekers. Most Home Office refusals and Tribunal dismissals were because the young people were not believed; Most of these young people were assessed by Social Services as older than their claimed age; Some refusals relied on evidence unlawfully obtained, or on discrepancies not put to the young person; The issue of family tracing was often used to discredit the young person s claim.

8 The asylum process: initial and screening interviews Case 11 was interviewed on arrival, before any food or sleep, via a telephone interpreter. His answers were recorded in barely-legible notes which were not provided until his appeal against refusal of further leave, several years after the event. The fact that he had not mentioned the death of his mother in that first interview was relied on both in the initial refusal letter and by the tribunal to find him not credible. He was refused leave to appeal to the Upper Tribunal. Reliance on that interview unlawful: AN & FN 2012, VS [2014]

Social services age assessments 9 16 of 20 cases were age-disputed. Some by 1-3 years, others by only a few months. Any dispute casts doubt on a claim. The Home Office often relied on a 1-page Social Services summary assessment. Young people were not always provided with the full report, even at appeal. Reliance on information in age assessments to dispute credibility without giving the child an opportunity to respond is contrary to Home Office guidance, and unlawful - see FZ v LB Croydon [2011] EWCA Civ 59

10 Tribunals inconsistent handling of age assessments On appeal, the Tribunal dealt with the lack of Merton- compliant age assessment in different ways in each case the 1-page summary was available: Case W young person s account accepted in absence of age assessment Case A the 1 page summary accepted as the most reliable evidence Case C case remitted for fresh decision (which took over 12 months)

11 Home Office Reasons for Refusal letters (RFRLs) A 2009 UNHCR report on Home Office decision-making noted failures to apply the Refugee Convention in a childspecific way. In almost 50% of decisions there was no explicit consideration of age in the credibility assessment, and a failure properly to understand and apply the benefit of the doubt. Our sample included refusals from 2006-2012. In almost all cases the main reason for refusal was lack of credibility, implausibility or a failure to adduce evidence, despite UNHCR and Home Office guidance warning against applying the wrong standards to child asylum-seekers claims

12 Refusal Letters Examples of failure to follow UNHCR and Home Office guidance You have adduced no evidence to support the view that your father was taken by the Taliban (Case 7).It is considered that if your mother had not wanted you to be associated with the Taliban she would have arranged your education at another location (Case 10) [implausibility] Your claim is based on information provided to you by your mother and is therefore considered to be subjective. You have adduced no evidence. (Case 14)

Refusal Letters other issues 13 Reliance on screening interviews which were not carried out with appropriate protections for children, despite caselaw warning against this (See AN & FA (A Child) v SSHD [2012] EWCA Civ 1636) Lack of consideration of child-specific forms of persecution (e.g. is the child an orphan and therefore a member of a particular social group as in LQ (Afghanistan); failure to consider Humanitarian Protection with regard to specific features of the case Failure to consider the s55 BICA 2009 best interests of the child when dealing with Internal Relocation ( it is considered safe for you to be returned to Kabul ) Failure to consider the best interests of the child even though the applicant is still under 18: You will soon turn 18 and then you will no longer meet the definition of a child.

Poor quality legal representation 14 Of 12 cases with an initial right of appeal, 10 did not appeal. All were later refused, and lost their subsequent appeals. Many were denied legal aid for an appeal - merits failed judged to have a less than 50% chance of succeeding, despite more generous legal aid criteria for children. Refusals by legal representatives failed to identify Convention grounds (e.g: 13 year old child with medical problems and no contact with his family is arguably a member of a particular social group (LQ). Statements of evidence were often short and did not address key issues relevant to the claim, despite legal aid being fully available to cover all work needed on a child s case. Many young people were not advised to appeal to the Upper Tribunal even where there were arguable errors of law in their first tier tribunal determination.

Family Tracing - Duty on Home Office 15 EU Reception Directive art 24(3) implemented in regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 imposes a duty on the Home Office: 6. (1) So as to protect an unaccompanied minor s best interests, the Secretary of State shall endeavour to trace the members of the minor s family as soon as possible after the minor makes his claim for asylum. (2) In cases where there may be a threat to the life or integrity of the minor or the minor s close family, the Secretary of State shall take care not to jeopardise his or their safety.

Family Tracing Reversing the Duty 16 In no case was family tracing carried out. Some RFRLs stated it was not possible. Others advised the young person to contact the Red Cross. BUT It is noted that you claim to not know the whereabouts of your family in Afghanistan and it is noted that you have attempted to contact your family via the Red Cross It is therefore considered that you are trying to locate your family and that you can be reunited with them upon your return to Afghanistan (Case 6) It is considered that you have failed to provide complete and accurate information with sufficient detail with which UKBA could endeavour to trace your family after you lost contact with them. It is considered that you have failed to discharge the duty placed on you in KA. (Case 13) You have failed to adduce evidence that your family are illegally resident in [country X] (Case 12) who declined assistance with tracing because he knew where his family were.

17 Can legal action help these damaged cases? Recap on KA (Afghanistan) Our research shows that many applicants suffer because of unlawful Home Office procedures, or refusal decisions which fail to follow published guidance or binding caselaw. KA (Afghanistan) said: Some applicants may merit a remedy for such a past illegality, even if now they are over 18 and not entitled to asylum on current caselaw about Afghanistan; A failure to try to trace family members may have deprived a young person of evidence supporting their asylum claim

18 But KA (Afghanistan) placed appellants on a hypothetical spectrum Lord Justice Kay held (KA (Afghanistan) para 25): There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family.

19 EU (Afghanistan): the culture of disbelief reaches the Court of Appeal EU decided that all bar one of the KA appellants fell at the wrong end of the hypothetical spectrum, having been found by different tribunals to have given untrue accounts, or otherwise been uncooperative in relation to tracing their families. More significantly the Court decided (para 10):... Unaccompanied children who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their journey to this country The motivation may be that their child faces risk if he or she remains with them in Afghanistan, or it may simply be that they believe that their child will have a better life in this country. Either way, [the families] are unlikely to be happy to cooperate with an agent of the Secretary of State for the return of their child to Afghanistan, which would mean the waste of their investment in his or her journey here. In refusal letters and Tribunal determinations this judge s opinion quickly becomes all Afghan families are liars.

20 Key positive principles from the Afghanistan cases: An unaccompanied child can constitute a particular social group for the purposes of the Refugee Convention (LQ) and may be subject to serious harm on return depending on their individual circumstances (AA (unattended children)). There is no bright line at which the risk of persecution ceases at the 18 th birthday. Apparent or assumed age is more important. (KA) The SSHD s duty to trace is an active duty which goes beyond informing the child of the existence of the Red Cross tracing service (DS) The tracing duty may be relevant to the judicial consideration of the asylum claim. Failing to make efforts to trace the child s family could deprive the child of an avenue for corroborating their case (DS/HK/KA)

21 Key principles which have been used negatively - A breach of the tracing duty does not without more betoken an error of law by the SSHD giving rise to a corrective remedy or vitiate any ensuing determination of the first tier tribunal. (SHL para 28) Neither European nor domestic law prescribes any sanction, remedy or consequence for such a failure. (SHL para 28) Where a family assisted a child to travel to the UK, any assertion that family members are unable to meet them on return must be supported by credible evidence of efforts to contact those family members. In principle an adverse finding can be made from a failure by a child to try to trace their family. (HK) The child must show the causative link between the SSHD s failure to trace and his claim to protection (KA/EU) The onus is on the child to make out their asylum claim to the required standard of proof. (No mention of the shared duty to ascertain the facts UNHCR Handbook para 196)

22 Family tracing and the fate of the corrective remedy principle Our research confirms what others have reported about the problems of poor procedures, poor advice, and disbelief facing young asylum-seekers. What is troubling is: How Kay LJ s hypothetical spectrum and its application in EU and subsequently - takes no account of that wellresearched background to why young people end up at the bad end of the spectrum; Sir Stanley Burnton LJ s view that the Courts should not order the granting of leave as a sanction for the SSHD s unlawfulness (EU para 6) How quickly a judge s opinion gets treated as fact

The circular reasoning in tracing cases 23 an appeal is dismissed on credibility grounds; it is inferred that the appellant has not given true information about his family; which leads to an unchallengeable finding of fact about his family; tracing may have produced evidence to challenge the judge s overall credibility assessment; but because of the finding regarding his family it is decided that family tracing would have been unsuccessful, or unreliable, so no loss can have arisen from the failure to trace.

24 Can we rely on previous poor legal advice? No. Hashemi v UT concerned a child without parents who arguably had a claim for refugee status as an orphan. He had not appealed his first refusal, and was over 18 when his appeal against his second refusal was heard. The court held that he had suffered no disadvantage by SSHD s failure to trace, as he could give little information about his family. Crucially the judge noted that there is a presumption the claimant was properly advised and took an informed and advised decision in respect of any appeal. There is no evidence at all that the solicitors here made any mistake of professional judgment or otherwise (para 57).

25 The current legal position permission to appeal to the Supreme Court While the Court of Appeal appears to have retreated from the corrective remedy principle and made damaging findings in Afghanistan cases, permission has been granted to appeal to the Supreme Court in several of the cases discussed above.* There are 6 separate grounds of appeal including whether the SSHD can rely on her own wrongdoing. This is an extremely important development for all cases relying on KA (Afghanistan).

26 So is there hope for this Kent Law Clinic client yes! Arrived in 2007 age 15. Assessed as over 18, interviewed and detained for 12 months and removal directions set for Greece. No initial legal advice. Solicitors applied for judicial review and young person released. Finally interviewed 3 years after arrival as an adult. No attempt to trace family. On appeal in 2012, it was accepted that he was a child on arrival, but found not to now be at risk on return as an adult. Determination relied on screening interview to find him not credible. Further representations submitted by Kent Law Clinic. On appeal again to FTT client found completely credible and court held that his case had been incorrectly handled by Home Office and the previous FTT. Granted leave to remain on Article 8 grounds.

27 So is there hope for a Kent Law Clinic client maybe This client was wrongly assessed as 17 years old but later accepted to have been 15 on arrival He was found credible his father was a significant military figure who was murdered by the Taliban who forced his widowed mother to marry one of them He was found to have been a child and still at risk in his home area He was accepted to be in touch with his uncle- (=> what is the tracing duty then?) -who had provided him with the above information, which was believed (so EU para 10 surely can t apply to him?) BUT he is now over 18 and therefore not at risk in Kabul We have asked for the Court of Appeal to stay his case behind those on appeal to the Supreme Court, as the only thing that can help him now would be a positive corrective remedy decision

28 References: research reports and academic articles - 1 Home Office culture of disbelief referred to most recently in the House of Commons Home Affairs Committee s report on asylum HC 71, 11 October 2013 An Inspection into the Handling of Asylum Applications Made by Unaccompanied Children, Independent Chief Inspector of Borders and Immigration, October 2013 Landing in Dover: The immigration process undergone by unaccompanied children arriving in Kent Children s Commissioner, January 2012 Final Report of the Asylum Appellate Project, Devon Law Centre March 2010 An interim external evaluation of Refugee Action s Access to Justice Project Ceri Hutton and Sue Lukes, External Evaluators October 2013

29 References: research reports and academic articles - 2 Working with refugee children: Current issues in best practice, ILPA May 2011 Lives in the Balance: the quality of immigration legal advice given to separated children seeking asylum Refugee Council February 2011 Broken futures: report from the Youth on the Move segment of the Refugee Support Network; Complexities and Challenges in Afghan Migration: Policy and Research Event: Maastricht University Policy brief no 14, 2013 Expert roundtable discussions on the UNCRC and its application to child refugee status determination and asylum process Journal of Immigration Asylum and Nationality Law (2012) Seeking Asylum under the Convention under the Rights of the Child: a case for complementary protection Jane McAdam, International journal of Children s Rights 14 2006 :269 Judicial Review and compliance with administrative law Simon Halliday, Hart Publishing 2004

Legal references 1 30 R (Rashid) v Secretary of State for the Home Department [2005] INLR 550 Ravichandran v Secretary of State [1996] Imm AR 97 R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 AA (Afghanistan) [2007] EWCA Civ 12 Home Office Guidance to senior caseworkers & SAT (sic) when dealing with further representations in the light of the case of AA(Afghanistan) (Kent Law Clinic FOI request 23/4/2013, replied to 4/7/13) SL (Vietnam) v SSHD [2010] EWCA Civ 225 AN (A child) & FA (A child) v SSHD [2012] EWCA Civ 1636. DS (Afghanistan v SSHD [2011 EWCA Civ 305

Legal references 2 31 R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin) LQ (Age: immutable characteristic) Afghanistan [2008] UKIAT 00005 AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) HK (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 315 para 34 HK (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 315 para 34 KA (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1014 EU (Afghanistan) & Ors v Secretary of State for the Home Department [2013] EWCA Civ 32 *stayed behind appeal to SC SHL (Tracing obligation/trafficking) Afghanistan [2013] UKUT 00312 (IAC)

Legal references 3 32 AA (Iran), R (On the Application of) v Upper Tribunal (IAC) & Anor [2013] EWCA Civ 1523 AA v SSHD [2013] EWCA Civ 1625 *on appeal to SC R(AA (Afghanistan)) [2012] EWCA Civ 1643 Jabarkhail, R (on the application of) v SSHD [2013] EWHC 1798 Mamour, R (on the application of) v Secretary of State for the Home Department (FCJR) [2013] UKUT 86 (IAC) TN & MA v SSHD [2013] EWCA Civ 1609 Hashemi v Upper Tribunal (IAC) [2013] EWHC 2316 JS (Former unaccompanied child durable solution) Afghanistan [2013] UKUT 568 [TN & MA [20-13] EWCA Civ *on appeal to SC

33 Kent Law Clinic and immigration and asylum work Kent Law Clinic is a pro bono legal office attached to the University of Kent Law School, carrying out casework through law students supervised by experienced solicitors. Richard Warren, research and casework assistant, is an experienced legal aid immigration caseworker who has recently completed a postgraduate degree in migration studies and social research methods. Sheona York is an immigration and asylum solicitor with over 30 years experience in legal aid. Our posts are jointly funded by the University of Kent and Unbound Philanthropy, Metropolitan Migration Foundation and Samuel Sebba Trust