The recent case of AM (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1123, provided the Court of Appeal with the opportunity to set out guidance on the general approach to be adopted in law and practice by the First-tier Tribunal (immigration and asylum Chamber) where asylum claims are made by children, young people, and other incapacitated or vulnerable persons whose ability to participate effectively in proceedings may be limited.
The case was brought via judicial review on the grounds of procedural unfairness. judicial review is a process by which the courts exercise a supervisory authority over the exercise of public functions by public bodies.
The facts of AM (Afghanistan) v Secretary of State for the Home Department
The appellant was an Afghan citizen. His father was a Taliban member who was killed by British forces when the appellant was 13 years old.
A few days after the death of his father, the appellant was assaulted by the Afghan police and he was hospitalised. After returning home, Taliban men came and took him away to a training camp with the intention of training him to be a suicide bomber. Eight to ten days later he managed to escape. His maternal uncle handed him over to agents who facilitated his removal from Afghanistan and his journey into Europe.
The appellant confessed to a well-founded fear of persecution in Afghanistan, both from the Afghan police who considered him to be a member of a Taliban family and from the Taliban who would either want to punish him or use him as a fighter. An expert medical report stated the appellant had mental health and psychological difficulties and moderate learning disabilities.
The appellant claimed asylum as a refugee under the 1951 Geneva Convention Relating to the Status of Refugees as applied by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which are incorporated into the immigration rules by rule 334:
"334. An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;
(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and
(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group. "
"…account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of their situation. … Close attention should be given to the welfare of the child at all times."
The Court of Appeal’s criticism of the First-tier Tribunal and the Upper Tribunal
The Court of Appeal held that the judge in the First-tier Tribunal erred because it had not:
- taken proper account of the asylum seeker's age, vulnerability, and learning difficulties by rejecting his account of events because of alleged inconsistency and implausibility.
- considered whether oral evidence was necessary to enable a fair hearing
- considered any prejudicial consequences of oral evidence in accordance with the Tribunal Procedure (First-tier Tribunal) (immigration and asylum Chamber) Rules 2014 r.14 and the relevant Practice Direction and Guidance Note
- considered the country conditions in Afghanistan
The Court of Appeal also noted that the First-tier Tribunal had proceeded on the erroneous basis that the appellant would not face removal from the UK until he was 18 years old, which is contrary to previously decided case law.
It was held that on appeal, the Upper Tribunal also ignored the medical report, stating that the First-tier Tribunal had taken into account the appellants learning disabilities and was entitled to its view.
Core principles set out in the judgment on asylum claims for children and other vulnerable persons
The court was at pains to say there was no definitive checklist when it came to the principles which should be applied when considering an asylum application which involved a child or vulnerable person, but stated the following factors should be considered:
- there should be a lower standard of proof
- while an assessment of personal credibility may be a critical aspect of some claims, particularly in the absence of independent supporting evidence, it is not an end in itself or a substitute for the application of the criteria for refugee status which must be holistically assessed
- medical assessments should be treated as part of the holistic assessment and not as a mere “add-on”
- expert medical evidence can be crucial in determining why an asylum seeker’s oral account may be incoherent or inconsistent.
- an appellant's account of their fears and the assessment of an appellant's credibility must also be judged in the context of the known objective circumstances and practices of the country in question and a failure to do so can constitute an error of law; and
- in making asylum decisions, the highest standards of procedural fairness are required
The Court of Appeal acknowledged the First-tier Tribunal had the power to admit evidence that would not be admissible in an ordinary civil court. In particular, the civil rules about admission of hearsay, including from a party without capacity, do not apply in the First-tier Tribunal.
During a hearing, the Court of Appeal stated parties are required, as far as is practicable, to ensure that an appellant is able to participate fully in the proceedings and that there is a flexibility and a wide range of specialist expertise which the tribunal can draw on to ensure the case is managed fairly and justly. Within the First-tier Tribunal Rules themselves this flexibility and lack of formality is made clear.
The court also stated both the “"First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses" Practice Direction and the Presidential Guidance Note No.2 of 2010 should be followed. Failure to do so would be a material error of law. They identified five key features of the guidance publications:
(a) early identification of vulnerability was encouraged. Responsibility rested with the appellant's representatives;
(b) an incapacitated or vulnerable person should only need to give oral evidence in limited circumstances;
(c) in such circumstances, the person's welfare had to be protected before and during the hearing;
(d) in assessing the evidence, special consideration had to be given to the person's personal circumstances;
(e) there were additional sources of guidance, some from international bodies that should be examined
This judgment sets out clear grounds for the procedures which should be followed in the First Tier Tribunal and Upper Tribunal when dealing with an asylum seeker who is vulnerable or a minor. Failure of the courts or Home Office to adhere to these guidelines could open up a ground for the decision to be challenged on appeal or via judicial review.
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Posted on: Wednesday, 13 September, 2017