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Integrate then Leave: The Precarious Status of Unaccompanied Afghan Asylum Seeking Children in the UK (13 April 2017)

Date: 13/04/2017
Duncan Lewis, Main Solicitors, Integrate then Leave: The Precarious Status of Unaccompanied Afghan Asylum Seeking Children in the UK

The story is familiar but that does not make it any less shocking.

I am speaking with a client who now has the threat of forced removal to Afghanistan hanging over him. He may be in a detention centre, told that he is to be removed in a couple of days. He is terrified that every time he reports, he may be detained.

He has been in the UK for many years. He’s been to school here, he has a foster family and he has friends here. He barely remembers Afghanistan and what he does remember distresses him. He has no contact with his Afghan family and does not know if they are dead or alive. He desperately wants to work and to contribute to the country that he calls home.

But he can’t. He is told that it is irrelevant that he does not remember Afghanistan, that it doesn’t matter that he has friends and family here. all that he wants is to better himself and contribute to his adopted country. He is a failed asylum seeker. He is supposed to wait around, trying to avoid street homelessness until the Home Office can take the time to remove him back to Afghanistan.

He is desperate to do anything to give him the right to stay in the United Kingdom yet for the vast majority of these young men there may be no hope. The Home Office is determined to return them to Afghanistan. No matter what this young man says, they will not change their mind. The threat of return causes widespread anxiety and depression. These young have been abandoned by the Home Office, dismissed as undesirable and incredible.

How did we get here? Let’s look back to his past:

When he was a child, it was arranged for him to leave Afghanistan. Perhaps his family had angered the Taliban in some way, perhaps he had been threatened and told that he must join a terrorist group or he might have been involved in a family feud. He does not know the full details. All he knows is that it is not safe for him to be in Afghanistan and that he should try to make it to the United Kingdom.

He travelled across the world with an agent, too scared to ask anything or he would be beaten. Months pass and eventually he makes it to Calais. In Calais he camps with hundreds like him, living in filthy conditions for an extended period of time, freezing and starving. However, he is warmed by his proximity to the United Kingdom and the belief that he is almost there.

He tries repeatedly, putting himself at extreme risk, to get to the United Kingdom. One day he is successful. He arrives in the UK. This is the place that he has dreamt of reaching for his entire journey. He has been told by his family that he will be safe here, that he will be able to live his life away from the dangers he faced in Afghanistan.

He claims asylum. He is asked a barrage of questions about his past and his reasons for leaving Afghanistan. He does not know the answer to many of these questions. He is a child. He was not privy to the complex situation that led to his departure.

When interviewing a child the Home Office are supposed to compensate for the fact that their interviewee is in fact a child. He has less knowledge of the reasons why he left his country of origin, his mind is less developed and akin to his surroundings and he is more prone to make mistakes.

The Home Office guidance confirms this:

i) It is not appropriate to draw an adverse credibility inference from omissions in the child’s knowledge or account if it is likely that their age or maturity is a factor or if their own ability to construct an account or other similar reasons lead to those omissions.

ii) In certain circumstances, the benefit of the doubt will need to be applied more generously when dealing with a child, particularly where a child is unable to provide detail on a particular element of their claim.

iii) A child may be less able to produce objective evidence to corroborate their claim, and may in fact have very limited life experience. Caseworkers must also be aware that a child may find it difficult to describe details beyond their direct experience, such as names of places, persons, or organisations. When considering the objective evidence in support of a child’s case, it is important to refer to up-to-date relevant country of origin information.

However in practice, the Home Office often pay no attention to its own guidance.

They treat him as if he was an adult; they complain he has no evidence to support his claim, they expect him to know the motivations of the Taliban when they targeted his family, or they ask him about things that he has never experienced before in Afghanistan and complain when he’s unable to answer perfectly.

His asylum claim is refused. As the child does not know the answers to these questions he is deemed to be not credible. Sometimes the Home Office doesn’t even believe that he is Afghan. In essence, the Home Office are calling him a liar. They settle happily with the conclusion that the child has travelled for thousands of miles and left his family and home behind for no reason at all.

However, whilst his asylum claim is refused, he is told that he has the right to stay. He is ecstatic. He feels as if he is if now finally safe and secure in his new home. He does not know that his leave is temporary and he does not know that the Home Office will be determined to eject him from the country as soon as he reaches 17 ½.

He spends the following years assimilating into the United Kingdom. He goes to school, he learns English, he makes friends and he bonds with his foster family. He starts thinking about his future, about work or university. He takes his GCSEs, he starts to prepare for his A Level Exams. He learns skills and attends courses. He tries to live a normal life, as he has been encouraged to do.

We treat him as if he is one of our own.

When he turns 17 ½ he applies for further leave to remain. Some months later he receives the inevitable refusal. The Home Office rely on the same refusal that they gave many years before. They call him a liar again. The skills that the boy has learnt in the UK are taken by the Home Office to be proof that he could easily return to Afghanistan. He is told that he can go back to Kabul, a city he has never been to, and where he doesn’t know a soul.

Thus the asylum process begins again but this time it is even harder. He is now asked to remember details of what caused him to leave Afghanistan years before, something he knew little about to begin with. He desperately tries to find some evidence to support his asylum claim but even the little he can gather is likely to be dismissed as fake by the Home Office.

He makes it to his immigration appeal. The Judge seems to go along with everything the Home Office said about him. They say that he has fabricated his asylum claim. He is told that he is ‘resourceful’, as he was able to make the arduous journey from Afghanistan to the UK. He is told the skills that he has worked so hard to learn have somehow meant that he would be able to fend for himself on return. He is told that he can go back and re-join his family in Afghanistan, notwithstanding the fact that he has no contact with them; it is assumed that he has. He is told that he is a healthy young man who would be fine in Kabul.

Rarely, he may be entirely believed. The Home Office and the Court may accept that he has a real fear of persecution if returned to Afghanistan. They may accept that he was attacked and targeted by an aggressive terrorist group, they may accept his family was killed but…he is told he could ‘reasonably relocate’ to Kabul.

His lawyer now tells him that there is nothing that they can do for him. Indeed, he may not even have a lawyer, as he may have been told before starting the process that his case is hopeless and that they cannot represent him.

After this his new life begins. One in which he is an outsider, an illegal immigrant who ‘should just go home’. He has to give up his work and his schooling. He loses his social services support. He is restricted to a half-life in the UK, unwanted and alone, desperate to find any way to belong again.

He tries to make further submissions, relying on new evidence from Afghanistan, objective materials or about his continued life in the UK. However, the Home Office now have the power. They say that his case has been refused once, by an independent Tribunal and no amount of new evidence will change their mind.

He may challenge the refusal by judicial review, he may win his judicial review but the Home Office are under no obligation to make a positive decision, leading to an indefinite cycle of submissions and litigation with no resolution. The Home Office is completely in control, they can wear him down for years and years until he has nothing left; no fight or will to carry on.

If he didn’t already have mental health problems, he does now; suffering from depression and anxiety caused by the constant fear of return to Afghanistan and feelings of being an outsider.

When will this end? Will he ever be told that he can stay in what they feel is now their home?

In most occasions…No.

This is the story of my client and of hundreds of others, desperately fighting removal to Afghanistan.

The Bureau of Investigative Journalism reported in 2015 that out of the thousands of child asylum seekers who had arrived in the United Kingdom from Afghanistan since 2006, only 6% had been granted asylum at first instance. This is a staggering and barely believable figure given that Afghanistan was one of the most volatile and violent countries in the world during that time period. The Bureau also confirms that the rate of asylum recognition for adult Afghan asylum seekers was significantly higher during these 9 years.

The UK already has an oppressive asylum system in which the standard reaction to all asylum claims, no matter how well evidenced is disbelief. The UK Government seem determined to refuse as many asylum claims as possible, shirking the responsibilities that they signed up for under the Refugee Convention.

Britain was described as ‘one of the worst destinations for asylum seekers’ in a recent Guardian article, which demonstrated that the UK had a rate of recognition of 28% for first instance asylum claims in the third quarter of 2016 [compared to a rate between 63-65%] for the rest of Europe.

Unaccompanied Afghan former child asylum seekers appear to be particularly prejudiced and victimised within a manifestly unfair system.
This is despite the Home Office now accepting, upon considering the wealth of material that:

i) The Taliban are present throughout Afghanistan and are so powerful that they can target whoever they want, wherever they want; and
ii) The Afghan Government, crippled after the withdrawal of international troops, can do nothing to protect their citizens if the Taliban so decide that they are to targeted; and
iii) The internal armed conflict in Afghanistan, after ‘cautious optimism’ has spiralled into violence and decay to a level not seen since the Taliban were in power.

As a trainee lawyer and a representative for many Afghan asylum seekers I have spent much time researching and pouring over the evidence and guidance to find out how I can help these people.

Attempting to fight this historic miscarriage of justice involves scouring through any article or any report released about Afghanistan and considering the Home Office guidance line by line. It means my social media accounts are full of stories of Afghanistan and materials that both reflect the shocking state of Afghanistan but may also help me reflect Afghanistan’s reality.

It involves a constant fight against the removal machinery of the Home Office, who, after our high profile fight against mass charter flights to Afghanistan now pursue a more underhand strategy, detaining and removing young Afghans individually via commercial flights, the rest of the passengers unaware that one of their number is being quietly and forcibly removed to a warzone.

It involves working long hours, to achieve temporary victories, and then continuing the fight for many years, trying not to lose hope ourselves as we come up time and again against the administrative and sceptical wall of the Home Office.

It involves trying to stop removals conveniently placed on the weekends with little notice, to give the client as little chance to respond and challenge their removal directions.

It involves looking this client in the eye and telling him we will do our best but explaining the reality of the situation, that they may be sent back to the Afghanistan.

Telling him ‘we will fight for you in an unfair system and we will do whatever it takes, however long it takes…

…but unfortunately in some cases it may not be enough.’

Jamie Bell, the author, is a Trainee Solicitor in the Public Law and Immigration Department, he has significant experience dealing with vulnerable clients including those in detention, those suffering from complex psychological issues and victims of torture and trafficking. He has been particularly successful challenging the detention of vulnerable clients, leading to grants of out of hours’ injunctions preventing their deportation.

Duncan Lewis Immigration Department

Duncan Lewis' Immigration team holds exclusive legal aid contracts to represent vulnerable clients/ victim of torture or trafficking in immigration detention related matters; detained asylum casework and unaccompanied asylum seeking children. The department holds a niche practice representing judicial review immigration claimant cases before the High Court with a significant practice in Upper Tribunal and Court of Appeal appellant cases, unlawful immigration detention cases with high net claims for damages and challenging immigration removal cases; in particular, Dublin II third country removal cases. Duncan Lewis has lodged more immigration judicial review proceedings in 2016 than any other immigration legal team in the UK.

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