New Judgment: TN and MA (Afghanistan) v Secretary of State for the Home Department; AA (Afghanistan) v same  UKSC 40
24 Wednesday Jun 2015
TN, MA and AA: (a) are Afghan nationals; (b) were smuggled into the UK as unaccompanied minors; (c) claimed asylum here; and, (d) had their accounts disbelieved and their claims rejected. They were granted discretionary leave to enter and remain in the UK until the age of 17 years and six months. TA and MA’s statutory right of appeal would only become live once a decision to remove them was made, at which point, because of the discretionary leave, they would no longer be able to argue they should be protected on the basis of the status as minors. AA (along with TN and MA) argued that the respondent’s failure to carry out her tracing duty vitiated her decision to reject the asylum claims. Held: TN’s and MA’s right of appeal to the tribunal was not immediate but was still effective. Any entitlement to refugee status on the basis of age would be time-limited in the same way to correspond with the attendant risk. The principle established in authority is that asylum appeals should be determined by reference to the situation at the time of the appellate decision rather than by reference to the situation at the time of the original decision. Given that MA’s and AA’s accounts were disbelieved by the Upper Tribunal, their appeals should not have been allowed merely by reason of the respondent’s breach of her tracing obligation.