Public Law Solicitors

Duncan Lewis solicitors currently represent a number of clients from Afghanistan, whom arrived in the United Kingdom. One such client arrived in 2009 as a minor from Afghanistan and claimed asylum and was placed in local authority care aged 17.

In view of his age, he was granted discretionary leave to remain (DLR) until he was 17.5 years old in accordance with the SSHD’s policy for minors.

Our client subsequently claimed further leave to remain, the same was refused. Despite, further representations made to the SSHD in relation to our clients mental health and personal circumstances being in risk of persecution if returned to Afghanistan, removal directions were set.

Further to the removal directions being imminent, further representations were made as to why our client should not be removed, in particular that the SSHD should disclose the steps she had taken to trace the Claimants family (1) and if she had not done so why none had be done and that as a result the Claimant was entitled to remedial leave. Subsequently, Burnett J stayed the Claimant’s removal by interim order as there was no evidence to suggest that tracing was carried out correctly.

The SSHD’s duty under Section 55 applies not only to how children are looked after while decisions about immigration asylum deportation or removal are made but also to those decisions taken without having regard to the need to safeguard and promote the welfare of the child will not be in accordance with the law.

Following KA (2) this case raises a fresh claim issue of where the Claimant (here aged 20) can properly maintain a current protection claim arising out of a KA breach of duty, as well as a claim for remedial leave arising from a past unlawful determination of an asylum claim.

It has been recognised at ministerial level that;

“... simple humanity demands that any immigration decision to remove an unaccompanied child involves consideration of whether safe and adequate reception arrangements for the child can be made.

The position is even more acute in the context of Afghanistan, where because of the risks of forced labour or sexual exploitation, the lack of familial support is a near-dispositive indicator that a refugee claim advanced by an unaccompanied child is made out.” (3)


We predominantly relied upon the Legal Principles from KA as there were significant similarities in the material facts of our client’s case;

The case for the appellants in KA was set out inter alia at §16:

“16. The case for the appellants is that the duty to endeavour to trace simply was not complied with between 2006 and 2010; that this was not just a haphazard coincidence in the present cases; and that the irresistible inference is that it was deliberate and systemic. Indeed, it seems that in DS (Afghanistan), the submission on behalf of the Secretary of State, which was rejected by this Court, was that she was “entitled to do nothing by way of tracing inquiries” (paragraph 44). In the present case, that has morphed into a submission which I can caricature as an entitlement to do next to nothing which I find equally unsustainable."

Maurice Kay LJ at §17 “accepted that there was a systemic breach of the duty to endeavour to trace”, and did not limit the corrective principle potentially available to those who are just over 18, but rather concluding that the on reaching the age of majority, youth or age remains relevant to the assessment of risk upon return:

The principles that emerged from this first stage of judicial consideration of the appeal before the Court were elucidated at §24:

The emerging principles

“24. Certain principles emerge from the authorities, particularly DS and HK:
1) The duty to endeavour to trace is not discharged by merely informing a child of the facilities of the Red Cross.
2) A failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim.
3) Such a failure may also be relevant to a consideration of the section 55 duty.”

Our client’s factual evidence fits that of the appellants in KA having claimed asylum upon arrival in UK as an Unaccompanied Asylum Seeking Child (“UASC”), thus there is clearly a causative link between the breach of the duty and his protection claim as identified by the Court of Appeal in KA.

Furthermore, it has also been recently noted that the SSHD had issued removal directions before a decision was made; we argue the lawfulness of the decision of the Defendant to remove the Claimant under section 47 of the Immigration, Asylum and Nationality Act 2006 which may give rise to an in-country right of appeal under section 82 of the Nationality Immigration and Asylum Act 2002.

Duncan Lewis continue to represent our client in this Judicial Review claim (full hearing to be listed this year).

Notes

(1): S55 of the Borders, Citizenship and Immigration Act [2009]- The SSHD’s legal obligation to trace the family of a child asylum seeker
(2): KA(Afghanistan) and others v SSHD [2012] EWCA Civ 1014
(3):Ministerial statement of 1997, cited at §11 of AA (Afghanistan) v SSHD [2007] EWCA Civ 12.

About the Author

Simran Kaur joined Duncan Lewis in April 2013. She currently practices from the company’s Harrow Branch as a Caseworker in the Public Law Department. Simran graduated from the University of Westminster in 2011 with a LLB Honours degree and she subsequently completed the Legal Practice Course at the College of Law, London in 2012. Simran speaks Punjabi with an understanding of Hindi.