Supreme Court: 'Ravichandran is Sound'

The cases of TN and MA (Afghanistan) v Secretary of State for the Home Department v AA (Afghanistan) [2015] UKSC 40 show that most accounts of being indoctrinated, as advanced by unaccompanied asylum-seeking children (UASCs), into suicide bombing and jihad are disbelieved. AA, TN and MA were Afghan UASCs whose asylum claims were rejected. However, all of them were granted discretionary leave to enter and remain in the UK until the age of 17½ years under official policy (as reflected in the guidance document Processing an Asylum Application from a Child). In the UK Supreme Court, their cases turned on the sufficiency of the appellate process and the scope of the duty with regard to family tracing. The appeals were dismissed in a cautious judgment. Lord Toulson (with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agreed) held that, under the old regime for appeals prior to the phased cutover to the new system under the Immigration Act 2014, UASCs in the UK were not deprived of an effective remedy by the grant of leave to remain for less than a year, even though this precluded them from immediately appealing against the asylum decision under section 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA). The court also held that a failure to properly discharge the obligation to endeavour to trace the family members of UASCs did not vitiate a decision to refuse asylum. AA, TN and MA claimed asylum and said that if they returned to Afghanistan they would be in danger from the Taliban, the government and the police. All of them also argued that the Home Office's failure to discharge its tracing duty vitiated the decision to reject the asylum claims and that compliance with the tracing duty would have produced evidence to support their accounts which had been disbelieved. The Court of Appeal, however, dismissed these appeals. (In addition to the Supreme Court's decision, this paper also takes a detailed look at the Court of Appeal's copious jurisprudence on the vexing issues surrounding Afghan minors.) Because the statutory scheme under the NIAA provided an effective remedy, the court found it unnecessary to consider whether the availability of judicial review bridged the gap perceived by TN and MA. On the one hand, the court accepted that the consequences of a breach of the tracing duty are potentially relevant in evaluating present risk owing to the possible effect on the nature and quality of the available evidence. But on the other hand, that acknowledgement did not accord with exercising some form of remedial jurisdiction empowering judges to order the grant of ILR where a right to refugee status (or humanitarian protection) was not evidentially made out. Two other points of general application emerged: • The fact that the true date of birth of UASCs is unknown is an additional reason for not regarding the supposed date of majority as necessarily changing the assessment of risk. • UASCs arrive in the UK because their families/friends pay a considerable cost for their fare and for an agent to arrange the journey and they will be intransigent to cooperation with the Home Office for the return of the child to Afghanistan. The earlier EU (Afghanistan) case itself paradigmatically demonstrated the reality, that it was irrelevant to his family, and was rightly dismissed by the Upper Tribunal and the Court of Appeal. Turning to the issue thrown up by Ravichandran and Rashid, Lord Toulson preferred the former and said at para 72 that "the Ravichandran principle applies on the hearing of asylum appeals without exception, and Rashid should no longer be followed." His Lordship held that and that the doctrine espoused in Ravichandran "is sound" because "on an asylum appeal the question is one of present status", i.e. whether or not an appellant meets the criteria of the Refugee Convention or is he in need of humanitarian protection? So the role of the court was distinguishable from a situation involving a private law claim for breach of contract or tort where claimants can expect to be compensated, by being restored to the original position, as if the wrong had not been committed. The upshot was that the courts needed to desist from following the unsatisfactory principle in Rashid – which was an "unclear" exception where official procedural sloppiness and abuse of power resulted in an Iraqi Kurdish appellant being unfairly denied refugee status – because of the impossibility of stating "its scope with any degree of clarity".