Case Comment: TN and MA (Afghanistan) v Secretary of State for the Home Department; AA (Afghanistan) v same  UKSC 40
07 Friday Aug 2015
The Supreme Court yesterday handed down judgment in TN, MA and AA (Afghanistan) v Secretary of State for the Home Department  UKSC 40, in which the Court held that a breach of the family tracing duty in Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 does not affect the rule in Ravichandran requiring asylum applications to be decided on the facts existing at the date of decision.
The Court firmly closed the door on attempts to enhance asylum claims by reference to notions of “historic injustice” arising from the Secretary of State’s breach of Regulation 6. The Court also held that 83 of the Nationality Immigration and Asylum Act 2002 (as in force prior to amendment by the Immigration Act 2014) had not deprived the appellants TN & MA of an effective remedy against the refusal of their asylum claims after reaching 16 ½ years old. This post focuses on the Court’s approach to the family tracing issues, with which AA’s appeal was concerned.
AA appealed against a refusal of asylum under section 83 of the Nationality, Immigration and Asylum Act 2002. AA’s account of persecution by the Taliban was rejected by the First-tier Tribunal, as was his case based on LQ (Afghanistan) and lack of family support. There was no suggestion that AA had not co-operated with attempts by the SSHD, and the Red Cross, to trace his family in Afghanistan.
There was a debate about the extent of the SSHD’s tracing duty under section 55 BCIA 2009, and the extent of her breach (which the Supreme Court did not resolve). AA argued that the SSHD’s failure to trace his family deprived him of potentially very powerful corroborative evidence in support of his credibility and that his asylum claim was therefore prejudiced.
AA argued that, in consequence of this prejudice, he ought to have been believed, either by application of well-established asylum law principles and/ or by virtue of the Rashid/S principle.
The Rashid/ R(S) principle
In essence, the Rashid/R(S) principle is that decision makers should take into account the need to remedy historic injustice. In Rashid, the claimant lost the certainty of asylum when the SSHD failed to apply the correct policy in deciding his asylum claim. In the later case of R(S), the claimant lost a very substantial chance of asylum because of the SSHD’s unlawful delay in deciding his asylum application.
In both cases, by the time the error was addressed, the claimants were no longer entitled to asylum because they were no longer at risk of persecution; the country situation had moved on. Having found illegality, the Court of Appeal agreed in both cases that justice required a grant of immigration status resembling the status that the claimants would have got but for the SSHD’s illegality: in Rashid the Court formally declared that R was entitled to ILR; and in R(S) the Court remitted the case to the SSHD, holding that the decision should be remade on the basis of “present circumstances” including “the present need to remedy injustice caused by past illegality”  (which, on the facts, gave rise to the “expected consequence” that ILR would be granted ).
Family tracing and Rashid/ R(S)
Rashid/ R(S) was applied to the family tracing context in KA (Afghanistan) and EU (Afghanistan). In KA (Afghanistan), the appellants relied on the historic injustice arising from the failure of the SSHD to discharge her tracing duty. Maurice Kay LJ in effect held that only sufficiently “co-operative” and “credible” children could benefit from the Rashid/ R(S): the now infamous “hypothetical spectrum”. He saw this as the key to working out whether the child had lost anything as a result of the failure to trace: on this reasoning, “cooperative” and “credible” applicants were likely to be telling the truth about their family, which tracing would have confirmed; whereas tracing based on information provided by an “uncooperative” or “incredible” child would have amounted to a wild goose chase. In spite of its incoherence, KA at least left Rashid/ R(S) potentially available to “credible” child asylum claimants (even if, being “credible”, they didn’t need it (see FM post here).
In EU (Afghanistan), the appeals in KA came back ostensibly for determination on their facts applying the principles set out in KA. Unfortunately, EU went far beyond merely applying the principles in KA. Sir Stanley Burnton’s judgment extinguished any scope for asylum applicants successfully to invoke Rashid/ R(S) in this context, given the following obiter dicta: (see ):
I do not think that the court should require or encourage the Secretary of State to grant leave in such circumstances [i.e. to a failed asylum seeker who is no longer in need of protection] either in order to mark the court’s displeasure at her conduct [in failing to discharge her tracing duty], or as a sanction for her misconduct.
This disapproval of Rashid had the effect that, even where a failure to trace had prejudiced an asylum claim, there was to be no “compensation” for the prejudiced applicant by way of a point in their favour when the asylum claim was re-determined. Having emptied the Rashid/ R(S) principle of its value, Sir Stanley Burnton had no difficulty dismissing each of the appeals on the basis that the young person had been disbelieved by the tribunals. Although EU did not formally overrule KA, that was its practical effect (see FM post here).
The Supreme Court’s judgment
The Court firmly closed the door on attempts to enhance asylum claims by reference to notions of “historic injustice”
The Supreme Court agreed with Sir Stanley Burnton’s criticisms of Rashid , and reaffirmed the Ravichandran principle, holding that, “the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid should no longer be followed.” The basis for this finding was the Court’s view that, while Rashid is relevant to the exercise of discretion, it is not relevant to whether the specific asylum criteria are satisfied :
The question whether the appellant qualifies for asylum status is not a question of discretion. It is one which must be decided on the evidence before the tribunal or court, and there is no legal justification for approaching that question with a presumption that the appellant is credible arising from a failure of the respondent properly to discharge her obligation in relation to family tracing…
The Court did not thereby appear to rule out the applicability of Rashid in the context of discretionary decisions by the Secretary of State, including decisions under Article 8 ECHR:
…Discretionary leave by definition involves a discretion, but it is a discretion which belongs to the respondent and not to the court. The respondent must of course exercise her discretion lawfully, with proper regard to any policy which she has established, but I agree with Sir Stanley Burnton that it is not proper for a court to require the respondent to grant unconditional leave to an appellant who would not be entitled to such relief under current policy (or have a current right to remain in the UK on other grounds, such as article 8), as a form of relief for an earlier error or breach of obligation.
Practical implications of the judgment
The Court emphasised that tracing should only take place where it is in the child’s best interests and the child has been properly consulted about his or her wishes . The Court also indicated that appellants who believe that they have been prejudiced by the SSHD’s failure to trace could ask for an adjournment from the FTT to enable the respondent to carry out tracing procedures . The Court clearly considered that this step remains available even to those who have turned 18 by the time of the FTT hearing :
There would be force in the argument that it should not make a difference whether the appellant has by then turned 18, since that would not remove an obligation which had arisen under the Reception Directive and the effects of which were intended to last beyond their minority (as the OCC has submitted).
The OCC’s submission was that the duty to trace “is still a component of the search for a durable solution, that is, one which will last beyond their 18th birthday”  (v). In many cases, family tracing has the potential to identify whether a young person’s family is alive or dead; and establish contact with family members, which could in turn lead to corroboration of the account of persecution e.g. from the Taliban and/or from the Afghan State. However, in view of the Court’s findings on Rashid, there is no scope for arguing that a failure of the Respondent to comply with the tracing duty, or to come up with any evidence in the discharge of that duty, counts in the appellant’s favour when the tribunal goes on to decide the question of asylum eligibility .
Equally, the Court did accept at  that an appellant’s conduct in approaching family tracing enquiries could influence the tribunal’s assessment of credibility:
If the appellant has identified people who might be able to confirm his account, but the respondent has not pursued that lead, the tribunal might fairly regard the appellant’s willingness to identify possible sources of corroboration as a mark of credibility, but this would be an evidential assessment for the tribunal.
The Court’s decision cuts the link between the tracing duty and the asylum decision-making process. On the one hand, this will allay concerns about tracing being used by the Secretary of State to undermine asylum applications. On the other hand, tracing is a potentially useful mechanism to obtaining evidence in support of an asylum claim, and so the loss of this corroboration opportunity can cause very real prejudice. The Court’s judgment confirms that asylum cannot be the remedy for that injustice.
This post originally featured on the Free Movement Blog and can be found here.
About Anthony Vaughan: Anthony specialises in all areas of immigration, asylum and human rights law, as well as related public and civil law fields of detention, social welfare law (including age disputes, asylum support) and discrimination.