Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 77
P1326/12	OPINION OF LORD MATTHEWS in the cause AAA Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of the First‑tier Tribunal (Asylum and Immigration Chamber) ________________

Petitioner: Winter; Drummond Miller LLP

Respondent: MacGregor; Solicitor to the Office of the Advocate General

23 May 2013

Introduction

[1] The petitioner claims to be Iranian although in circumstances which I will hereafter narrate that claim has been disbelieved. He claims to have been born on 7 November 1993 and I am prepared to accept that this is the case. That date of birth appears to have been accepted by Immigration Judge Montgomery, whose determination promulgated on 22 May 2012 will be referred to later. He entered the UK illegally in or around September 2008 and claimed asylum on 16 September 2008. His asylum application was refused by the UK Borders Agency on 11 November 2008 but he was awarded discretionary leave to remain until 7 May 2011 on the basis that he was an unaccompanied minor for whom no suitable reception arrangements were in place in the country of return, in accordance with the respondent's policy relating to unaccompanied minors. He appealed against the refusal of asylum, which appeal was heard by Immigration Judge Wood on 2 February 2009 and was dismissed. On 28 April 2011 he made an application for extension of leave to remain but this was refused on 19 February 2012. He appealed to the First‑tier Tribunal (Immigration and Asylum Chamber) but his appeal was refused by Immigration Judge Montgomery in the determination to which I have referred. He applied for permission to appeal to the Upper Tribunal (Asylum and Immigration Chamber). The application was broadly on the basis that Immigration Judge Montgomery had failed to give appropriate weight to certain evidence produced by the petitioner, particularly an expert report of a Dr R Fatah and a psychology report by a Rachel Morley. The purpose of Dr Fatah's report was to assess the petitioner's nationality/ethnicity. The report by Rachel Morley, a consultant clinical psychologist, narrated that the petitioner was showing symptoms consistent with a diagnosis of post-traumatic stress disorder. The application was refused in a decision dated 13 June 2012. The petitioner, relying on substantially the same grounds, applied thereafter to the Upper Tribunal for permission to appeal. That application was refused in a decision dated 1 August 2012.

[2] He now seeks reduction of that decision together with expenses and such other orders as may seem to be just and reasonable in all the circumstances of the case. The grounds upon which the petitioner relies are not those in the previous applications for permissions to appeal. His argument is based on a completely different premise. The background to it is as follows. In support of his appeal against the decision of 19 February 2012, refusing his application for extension of leave of remain, he submitted a number of documents. I have already referred to the reports by Dr Fatah and Ms Morley. There was also a statement from the petitioner, no 6/10 of process, a selection of letters in support of his application (no 6/12 and 6/13 of process) and a letter from the Red Cross dated 21 March 2012 (no 7/1 of process).

[3] In paragraph 2 of his statement he said the following:

"I was 14 years old when I first arrived in the UK. I was unaccompanied. I had an asylum on human rights appeal on 2^nd February 2009. I was 15 years old at the hearing. The hearing took place when I had been in the UK only for a matter of months. I only spoke a little English. The experience was alien to me. When I heard that I had to go to court I was worried I could not understand the procedure. My asylum appeal was refused. The Immigration Judge said that he did not believe that I was Iranian. I was shocked by that decision. I have only ever lived in Iran until I was 14 years old and then my mother sent me to the UK for my own safety. I have not had contact with my family since I came to the UK and I am scared for them about what may have happened to them. I have tried to trace my family but this has not helped."

The reference to trying to trace his family could only be to certain contact he had had with the Red Cross, which is in turn set out in the letter from that organisation to which I have referred. The relevant parts of that letter read as follows:

"I am writing to confirm that AAA has been in contact with our Tracing and Message Service in regard to obtaining news about the welfare and wellbeing of his father, AA.

A initially contacted the British Red Cross at the end of February 2012 and attended an appointment at our Glasgow office on 05/Mar/2012 in order to initiate a Tracing Enquiry. Due to A's fear of placing his family in danger, he was unwilling to initiate a full Tracing Enquiry within Iran, but requested that we check the records of the International Committee of the Red Cross (ICRC) in order to ascertain whether his father's location and wellbeing has been recorded by them at any time since he last had contact in May 2008."

In dealing with the letter from the Red Cross, Immigration Judge Montgomery made the following comments at paragraph 14 of her determination:

"14. The letter from the British Red Cross does not assist the appellant's claim. He did not make contact with the British Red Cross until the end of February 2012, very soon after the decision was issued refusing him further leave to remain in the UK. He argues that he was fearful of placing his family in danger, but, if that were so, it begs the question of why he was willing to make contact in February 2012. The approach to the British Red Cross has to date produced no further information regarding his father's location or wellbeing. The British Red Cross letter takes matters no further. The timing of his first contact with that organisation gives rise to the suspicion that I was made with these proceedings in mind."

Article 19.3 of Council Directive 2003/9/EC of 27 January 2003 (the Reception Directive) provides as follows:

"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

In order to implement that directive the Asylum Seekers (Reception Conditions) Regulations 2005 were promulgated. Regulation 6 provides as follows:

"(1) So as to protect an unaccompanied minors best interests, the Secretary of State shall endeavour to trace the members of a minor's family as soon as possible after the minor makes his claim for asylum.

(2) In cases where there may be a threat to the life or integrity of the minor or the minor's close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety.

(3) For the purposes of this regulation -

(a) an unaccompanied minor means a person below the age of eighteen who arrives in the United Kingdom unaccompanied by an adult responsible for him whether by law or custom and makes a claim for asylum;

(b) a person shall be an unaccompanied minor until he is taken into the care of such an adult or until he reaches the age of 18 whichever is the earlier;

(c) an unaccompanied minor also includes a minor who is left unaccompanied after he arrives and or enters the United Kingdom but before he makes his claim for asylum."

[4] It is conceded on behalf of the Secretary of State that the duty set out in the regulation, which could be characterised as "a duty to endeavour to trace" was not carried out in this case. It is not a matter which has hitherto been canvassed before any of the tribunals or in any of the applications made by the petitioner.

[5] The issue is, however, now raised in paragraph 8 of the Petition. It is averred that the immigration judge erred in paragraph 14 of the determination, which I have already quoted. The onus is not on the petitioner to trace his family but it is on the respondent. The issue had not been raised on the grounds for permission to appeal but had now been raised and was an obvious point. The First‑tier Tribunal and the Upper Tribunal were under a duty to act fairly and to exercise anxious scrutiny. There was no evidence that the respondent endeavoured to trace the petitioner's family and the respondent had failed to discharge the duty to endeavour to trace them. Such a failure was relevant to consideration of an asylum or humanitarian protection claim and might also be relevant to a consideration of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The immigration judge ought to have found that the respondent had failed to discharge that duty because she adopted the policy of granted him leave to remain until he reached the age of 17 and a half. By that time the duty was close to expiration because of the imminence of his reaching the age of majority. That amounted to a systematic breach of the duty. The duty to trace did not endure beyond the age of 18 but the assessment of risk on return was not subject to such a bright‑line rule. He ought to have had a successful appear by availing himself of the Rashid (RS) principle and/or section 55. He was a member of the social group identified by the tribunal in LQ Afghanistan [2008] UKAIT 00005 and was at risk in the absence of adequate reception facilities on return. He ought to have had the benefit of a further grant of discretionary leave. Even if he was not a member of that social group the need for humanitarian/human rights protection for an unaccompanied minor on return would need to be considered. The point was one that ought to have been considered by the Upper Tribunal and had it done so it would have found an arguable error of law in the First‑tier Tribunal's decision. There was a compelling reason for the court to reduce the refusal of the Upper Tribunal to grant permission to appeal.

The test

[6] I did not understand there to be any dispute between counsel as to the general approach which I should take. Following the cases of R (on the application of Cart) v Upper Tribunal [2012] 1 AC 633 and Eba v Advocate General for Scotland [2011] UKSC 29, 2012 SC (UKSC) 1, it was clear that unappealable decisions of the Upper Tribunal, such as the one under question is, were susceptible to judicial review only if they raised an important point of principle or practice or if there was some other compelling reason for the court to hear the case. Counsel for the

petitioner did not argue that any important point of principle or practice was involved but contended that there was a compelling reason for me to hear the case. Counsel for the respondent submitted that the present case did not satisfy that test.

Submissions for the petitioner

[7] In opening his submissions Mr Winter contrasted the approaches of Lord Brodie in the case of AKA v The Secretary of State for the Home Department [2012] CSOH 86 and Lady Clark of Calton in the case of BM v The Secretary of State for the Home Department [2012] CSOH 142. I do not think, however, that it is necessary for me to examine these cases in any detail and I say no more about them.

[8] Mr Winter, with the aid of the productions, went through the petitioner's history. In his screening interview, an extract of which is 6/8 of process, he gave certain personal details. It contains an obvious error in describing him as female but nothing turns on that. He provided a date of birth and indicated a place in Iran where he was born. He gave his last permanent address as a named area in a named town in Iran. There was no house number or street given. He provided the name and age of his mother and said that she lived in the family home in Iran. He provided his father's name and age and said that he was imprisoned in Iran. He also provided the name and age of a brother, whom he said lived with his mother, and said that he had a maternal uncle, whose name he gave and who lived in the same named town. He said he had no family in the UK. Mr Winter submitted that there was sufficient information given to enable the respondent to conduct a tracing enquiry. The only reference to his family in the statement of evidence form, no 7/3 of process, was in answer to questions 118 and 119. He was asked if he had spoken to his family since he had left Iran and if there was any reason why he had not tried to contact them. In response he said he was not aware of them and did not know what had happened. He had a telephone number but he had lost it. As he was illiterate he did not know it by heart. He was very fearful for his mother because she might be accused of helping him to escape. I have already narrated the history of his various applications and the results of them. Mr Winter made reference to the witness statement which was prepared for the hearing before Immigration Judge Montgomery. In the course of that statement he said that he was born in a particular place in Iran and later said he was from a particular village outside that place. He mentioned attempting to trace his family, which could only be a reference to the contact he had with the Red Cross. He mentioned certain mental health issues and gave an account of his integration into the community. 6/11 of process is an extract from the expert report. That narrates that he said that was from a village outside the named town and there was a map showing where that is. I have already mentioned that there was a selection of letters from persons attached to the social work department generally supportive of his application. 6/14 is the psychological report. That narrates that he has had a number of mental health issues but what the cause of them was is based to a large extent on what he told the psychologist. Immigration Judge Montgomery effectively agreed with Immigration Judge Wood. She applied Devaseelan and took his determination as the starting point for her consideration. However Mr Winter said that the obvious point he wished to take was to the criticism which Immigration Judge Montgomery had for the petitioner's interaction with the Red Cross. That interaction, or rather the timing of it, undermined his credibility in the judge's mind. The letter should have alerted the immigration judge to the fact that there was no tracing by the respondent. The topic of tracing had been raised and the judge ought to have been alive to the onus being on the respondent. The disadvantage suffered by the appellant because of a lack of tracing was that he had built up a private life in the UK, had mental health issues and would have no family support if returned. If the duty had been carried out that would have told the authorities if family renunciation was possible. He had lost contact with his family and did not know where they were. Because of that he had been granted discretionary leave to remain and had since then been educated and supported. If he were sent back he would be going from a supported environment to one where there was no support. Reference was made to the case of EU (Afghanistan) v The Secretary of State for the Home Department [2013] EWCA CIV 32 at paragraph 7. I asked Mr Winter whether this was not more in the territory of a fresh claim. In response he said that the petitioner in a fresh claim would be stuck with the adverse credibility findings made by Immigration Judges Wood and Montgomery. The tracing enquiry would assist in showing that he came from the named town even if his family was not traced. If so that would undermine the findings in the previous decisions that he was not from Iran.

[9] In relation to the question of whether a point was obvious or not Mr Winter referred me to the cases of R v The Secretary of State for the Home Department ex p Robinson [1998] QB 929 in which the Court of Appeal identified the circumstances in which it might be appropriate for a tribunal to grant leave to appeal on the basis of an argument not advanced before a special adjudicator or for a High Court judge to grant leave to apply for judicial review of a refusal of leave by a tribunal in relation to a point not taken in the notice of appeal to the tribunal. From page 945H till page 946D the judgment of the court, given by Lord Woolf, MR runs as follows:

"Because the rules place an onus on the asylum-seeker to state his grounds of appeal, we consider that it would be wrong to say that mere arguability should be the criterion to be applied for the grant of leave in such circumstances. A higher hurdle is required. The appellate authorities should of course focus primarily on the arguments adduced before them, whether these are to be found in the oral argument before the special adjudicator or, so far as the tribunal is concerned, in the written grounds of appeal on which leave to appeal is sought. They are not required to engage in a search for new points. If there is readily discernible an obvious point of Convention law which favours the applicant although he has not taken it, then the special adjudicator should apply it in his favour, but he should feel under no obligation to prolong the hearing by asking the parties for submissions on points which they have not taken but which could be properly categorised as merely 'arguable' as opposed to 'obvious'. Similarly, if when the tribunal reads the special adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this county will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it argued. Nothing less will do. It follows that leave to apply for judicial review of a refusal by the tribunal to grant leave to appeal should be granted if the judge is of the opinion that that it is properly arguable that a point not raised in the grounds of appeal to the tribunal had a strong prospect of success if leave to appeal were to be granted."

[10] Mr Winter referred also to the case of Bulale v Secretary of State for the Home Department [2009] QB 536, [2008] EWCA Civ 806. At paragraph 24 of his judgment Buxton LJ, having indicated that the point under consideration was not "Robinson- obvious" in the sense that a court could be criticised for not taking it of its motion said that it was a point which was engaged and was of some general importance. He went on as follows:

"The basis of the Robinson doctrine in as Lord Woolf MR said...that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state's compliance which its international obligations. That observation was in the Robinson case itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point is 'obvious', once it has in fact occurred to the court it must be open to the court to pursue it. I stress that that gives no general licence to the parties to reformulate their case once it arrives in this court."

[11] In that case the Home Secretary had decided that because of the offender's propensity to commit robbery his removal from the United Kingdom was justified under regulation 21 of the Immigration (European Economic Area) Regulations 2006 on serious grounds of public policy. The Asylum and Immigration Tribunal dismissed the offender's appeal. That was upheld on reconsideration. Neither in the original decision nor on reconsideration did the tribunal address the issue of whether a propensity to commit robbery constituted, in terms of article 28 of Parliament Council Directive 2004/38/EC, a sufficiently serious threat to society to justify expulsion. The Court of Appeal raised that issue of its own motion.

[12] Reference was also made by Mr Winter to the case of AHC v The Secretary of State for the Home Department [2012] CSOH 147.

[13] He referred me to four cases dealing with the obligation to endeavour to trace.

[14] In DS (Afghanistan) v The Secretary of State for the Home Department [2011] EWCH Civ 305 the appellant was a citizen of Afghanistan who arrived in the United Kingdom at the age of 15 and claimed asylum. He was granted leave to remain until 15 March 2011 in terms of the policy to which I have already referred. He was still a minor at the date of decision. His claim that he was in fear of the Taliban had been rejected. He gave evidence that his father was dead and his mother and uncle lived in a particular place and that he had had no contact with either of them since he left Afghanistan. The tribunal could find no evidence that his mother and uncle had disappeared. It was found that he had a mother and uncle to return to and live with without fear of exploitation or ill-treatment. It was submitted on his behalf that the Secretary of State for the Home Department should have made enquiries about facilities on return. No such enquiries were made and the need for them was not brought to the attention of the tribunal.

[15] Lord Justice Pill, giving the leading judgment, could not accept a submission that the Secretary of State was entitled to do nothing by way of tracing enquires. Regulation 6(1) of the 2005 regulations, following the directive, imposed a plain duty on the Secretary of State to endeavour to trace the members of the minor's family as soon as possible after the minor made his claim for asylum. He rejected the submission that because the regulations dealt with reception of asylum‑seekers the duty did not arise. He failed to see how the Secretary of State could ignore her regulation 6 duty when considering the asylum application. The possibility and desirability of a safe return were factors which should be considered from the start, as stated in the policy document. The need to "safeguard and promote the welfare of children who are in the United Kingdom" specified in section 55 of the 2009 Act required a proactive attitude to the possibility of return to a family. In paragraphs 46 to 48 of his judgment he went on as follows:

"I readily acknowledge the difficulties which may arise on the making of enquires and these two are considered in the policy document. In the present case, however, the Secretary of State did nothing at all to assist with tracing family members or to enquire about reception arrangements on return and the court has been invited to uphold that inactivity. It is neither necessary nor appropriate to specify precisely what should have been done; this can be worked out once the principle is established. What should be done will vary from case to case. Inactivity combined with the failure to bring to the attention of the Tribunal the instruments cited in this judgment, was not, in my view, a permissible option.

47. The Secretary of State seeks to defeat the claim be reason of the appellant's alleged failure to cooperate with the Red Cross. Tracing work by the ICRC would almost certainly have been assisted by a contribution from the Secretary of State based on information available to her. The lack of cooperation does not relieve the Secretary of State of her duties. It would be relevant to a decision as what the Secretary of State was required to do in a particular case and also to the eventual decision as to whether the right to asylum had been established in that case. But the duty cannot be ignored.

48. I would allow the appeal and remit the case to the Tribunal for further consideration, including the hearing of evidence. It would not in my view be appropriate to allow the appeal outright. Written submissions on the basis for remittal are invited. This may a pyrrhic victory for an appellant who is likely to have reached the age of eighteen before a decision is made but Mr Gill understandably seeks to establish that more is required of the Secretary of State for the Home Department in the circumstances."

[16] In the instant case the failure had a bearing, said Counsel, because it could not be said with certainty that the petitioner would not be at risk on return. There had been no best interests consideration undertaken in relation to section 55. See the opinion of Lloyd LJ at paragraph 80 in DS. Had tracing been undertaken it would have gone some way to confirming or refuting his nationality. In the second place the fact that he had lost contact with his family was relevant to his article 8 claim. The petitioner arrived in this country at the age of 14, attended secondary school, had been in a supported environment throughout his time here and had no family support to which to return. Mr Winter accepted that the Upper Tribunal would have to consider what the practical effect of the failure was. DS certainly might indicate that. The tribunal could say that there was no tracing enquiry but the petitioner still had to show that there was some disadvantage to him.

[17] Mr Winter then turned to the case of HK (Afghanistan) and others v the Secretary of State for the Home Department [2012] EWCA Civ 315.

[18] That involved three Afghan children who had all arrived unaccompanied in the UK and were given discretionary leave to remain in accordance with the respondent's policy on unaccompanied child asylum-seekers. Each appealed to the Asylum and Immigration Tribunal and in each case the appeal was dismissed. A reconsideration order was granted in each case by a senior immigration judge. The Upper Tribunal dealt with the case. They concluded that the lower tribunals had erred in law and proceeded to remake the decisions. Having reconsidered the matter they refused the claims for asylum and humanitarian protection and in each case the matter was appealed.

[19] In giving the leading judgment Lord Justice Elias said the following at paragraphs 34 and 35:

"34. The crucial premise for the submission that the Upper Tribunal should have upheld the claim to asylum is that it was not entitled to draw any adverse inferences against these children from their failure to seek to contact family members in Afghanistan. I do not accept that premise; the onus is on the asylum seeker to make good the asylum claim, and that applies to children as it does to adults. It is true that the particular vulnerability of unaccompanied minors has led to special rules relating to the handling of their cases, such as in the way interviews are conducted, and there is a greater tendency to give them the benefit of the doubt where is evidence is disputed...but this does not involve any formal shift in the onus of proof.

35. I do not suggest that it would in all cases be appropriate to draw an adverse inference that the child would be safely received merely from the failure of the child to try to make contact with his or her family. It will depend on a range of factor which would include the circumstances in which the child came to the UK, the age of the child, and whether he or she has been encouraged to make contact. But in my judgment is it in principle an inference which it is legitimate for a court to draw where the evidence justifies it, and it was not an improper inference for the Upper Tribunal to make on the evidence before it."

[20] In the following paragraphs he made it plain that the matter depended on the circumstances of each individual case. Paragraphs 38, 39 and 40 run as follows:

"38. So I do not accept that it would necessarily follow that the absence of someone to receive the child would compel the conclusion that asylum should be granted. Accordingly, even if Mr Bedford (counsel for the appellant), were right in his submission that the Upper Tribunal should have found that the appellants would not be subject to adequate reception facilities on return to Afghanistan, that would be sufficient to establish the right to asylum status. The case would still have had to be remitted to the Upper Tribunal on that issue.

39. I do not, however, accept the submission of Mr Blundell (counsel for the respondent) that the regulation 6 duty is quite distinct from the asylum application. The logic of that submission is that on remission, if for some reason the Secretary of State still failed in her duty to try to trace family members of these appellant's, then on the current evidence at least, the Upper Tribunal would be obliged to refuse asylum provided it considered that sending the children back to their families was in their best interests. That would be so even though, if the Secretary of State had carried out her regulation 6 duty, she might have established that in fact there was no one able to receive the child on return to Afghanistan. I find that an unattractive submission.

40. In my judgment it is a necessary part of the section 55 duty to give primary consideration to the interests of the children that the Secretary of State should obtain as much information as is reasonably possible to assist her in determining where those best interests lie. If she feels unjustifiably to do that, I do not see how it can properly be said that she has complied with the section 55 duty. Moreover, the regulation 6 duty is in terms said to arise as soon as an asylum application is lodged and it is plainly intimately connected with the determination of that application. This suggests that it should be treated as a necessary element in the determination of an asylum application."

[21] At paragraph 41 his Lordship indicated that he did not accept that analysing the duty in that way was inconsistent with the Court of Appeal decision in DS. He quoted from the judgment of Pill LJ at paragraphs 44 and 45.

[22] He then went on as follows:

"42. At paragraph 47 he made it plain that the lack of cooperation by the applicant did not relieve the Secretary of State of her regulation 6 duty:

'The lack of cooperation does not relieve the Secretary of State of her duties. It would be relevant to a decision as to what the Secretary of State was required to do in a particular case and also to the eventual decision as to whether the right to asylum had been established in that case. But the duty cannot be ignored.'

43. Rimer LJ in his judgment, also stated quite unambiguously that the regulation 6 duty was part of the 'best interests' consideration (para 88);

'I would [allow the appeal] for the reasons explained by Lloyd LJ. In arriving at its determination, the AIT gave no consideration to the obligation upon the Secretary of State, under section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that her functions in relation to the appellant's asylum application were discharged "having regard to the need to safeguard and promote the welfare" of the appellant whilst in the United Kingdom. It was conceded on behalf of the Secretary of State in ZH (Tanzania) that the section 55 duty extends to the disposition of an asylum application by a child such as the appellant (paragraph 24 of Lady Hale's judgment). In this case, however, there is a real question as to whether that duty has been discharged. For example, no steps have been taken by the Secretary of State towards enquiring as to the availability of adequate reception facilities for the appellant in Afghanistan; nor has a "best interests consideration" of the nature referred to in chapter 16 of the Secretary of State's policy document "Processing an Asylum Application from a Child" being carried out. The result was that the AIT disposed of the appeal without the material necessary to enable it to enable it to decide it in accordance with the law.'

44. In my view, neither of these judgments supports the Secretary of State's submissions on this point. The strongest support comes from the judgment of the Lloyd LJ and in particular the following observations at para 68:

'The obligation to endeavour to trace under regulation 6 applies when a child has made an asylum application, but the application is to be determined on its merits, whether or not any steps have been taken pursuant to the obligation. To that extent, I would accept the submission of Mr Waite for the respondent that the obligation to endeavour to trace is distinct from the issues that arise on an application for asylum. If steps have been taken pursuant to the obligation under regulation 6, the result, if any, may be relevant to the determination of the asylum application, depending on what the issues are on that application. In fact, no attempt to trace was made by UKBA in the present case. All that was done was to draw to the attention of the appellant of his foster-carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. There is a question as to whether the use made of these facilities by or on behalf of the appellant was appropriate, but nothing was done pursuant to regulation 6. It seems to me that that failure is not, by itself, relevant to the determination of the appellant's asylum application. However, the Secretary of State is still subject to the obligation, and steps ought now to be taken to comply with that obligation.'

45. But Lloyd LJ accepted that the question of whether family protection was available in Afghanistan was a critical issue underlying the asylum determination, and he noted that compliance with the regulation 6 obligation might cast light on that issue. For this reason he took the view that the case should be remitted on the basis that the renewed hearing should have regard to any further evidence relating to the issue of family protection, and that the tracing duty under regulation 6 should be carried out before the matter was reconsidered by the Upper Tribunal.

46. I do not read Lloyd LJ's judgment as endorsing a principle that the regulation 6 duty is always irrelevant to any asylum application. In my judgment he was merely saying that breach is not, of itself, relevant. In my view he was thereby recognising that there may be cases where the Secretary of State or a tribunal could make a determination on an asylum application in circumstances where regulation 6 had not been complied with, but that would not necessarily compel the conclusion that asylum should be granted. I would decent from that proposition, as I indicate below. The significance of an unjustified failure to trace is not that regulation 6 had not been complied with but rather that the decision-maker is not in a position to assess the best interests of the child. In any event, if Lloyd LJ did mean to lay down the principle relied on by the Secretary of State, that was not endorsed by the other two judges and is not in my view binding.

47. It follows, in my judgment, that even if the Upper Tribunal had had regard to the section 55 duty, it would have been entitled to conclude that it was not in a position properly to give effect to the duty without the information (or lack of it) resulting from the Secretary of State's Tracing Enquiries.

48. I do, however, recognise that where the position of children is concerned, tardy enquiries by the Secretary of State, or delayed responses, can sometimes effectively defeat the claim because the child might have gained maturity before the case is finally determined. There is a tension in these situations between the obligation to determine the application speedily and the duty to obtain information about the child so as to secure its best interests. Moreover, it is not necessarily desirable to resolve that conflict by granting asylum where there is unreasonable or unexplained delay by the Secretary of State, or because the process is proving to be difficult or slow. That might not be in the best interests of the child.

49. I do, however, recognise that there may be cases where the resolution of this tension, having regard to the child's best interests, would justify a tribunal granting asylum even absent any evidence from the Secretary of State. An obvious, and one hopes unlikely, example would be where the Secretary of State had deliberately failed to carry out the regulation 6 duty so as to ensure that the applicant achieved maturity before the decision was taken. But there may be other cases falling short of deliberate delay where the Secretary of State is finding difficulties in obtaining information and the

Tribunal feels it must in fairness to the applicant simply get on and determine the claim and fix his or her status. The Secretary of State's own internal documents raised this as a possibility. Chapter 16 of the Secretary of State's own policy document entitled 'Processing an asylum application from a child' contains the following passage:

'Family tracing can be a lengthy process, and contact with the family is only one aspect of the overall consideration. Any information obtained from a child at interview about the relationship ties with their family and their contact details as well as information gathered from the family should be considered in the round with the other evidence available. Case owners should not defer making an initial decision pending the outcome of a tracing request, particularly if a decision is to afford international protection to the child. All tracing efforts should be minuted on CID and on the HO File and updated as necessary. Results of the tracing process can be forwarded as additional information within the appeal bundle in the event of a refusal and can be used at appeal even though it was not included in the decision letter.'

50. This is focusing on the initial asylum decision but in principle a tribunal hearing an appeal may properly adopt a similar approach, particularly where the decision, absent further evidence, would be to grant international protection. This would be on the basis that asylum could be revoked at a later date if and when further evidence of the child's circumstances emerged.

51. However, I do not accept that it would be appropriate here for this court to require the Secretary of State to grant asylum. Potentially relevant factors have never been considered by the Upper Tribunal and it is necessary that they should be. This was the approach in DS, and I believe the same relief should be granted here. I do not accept Mr Bedford's submission that there is a material difference between this case, where the appellant's were found to have been unwilling to try to trace their families, and DS, where they gave false or misleading information to the Red Cross. In each case there was a lack of cooperation and in each an adverse inference was in principle open to the Tribunal. "

[23] The matter was remitted to the Upper Tribunal to consider the applications afresh in the light of the evidence put before it. This would include information, if any, which the Secretary of State was obliged to try to obtain pursuant to her regulation 6 obligations.

[24] Mr Winter then drew my attention to the case of KA (Afghanistan) and others v The Secretary of State for the Home Department [2012] EWCA Civ 1014. The claimants in this case were young men from Afghanistan who had arrived in the UK while still minors and applying for asylum. Their applications had been refused but discretionary leave to remain until the age of 17 and a half had been granted, pursuant to the policy which I have already mentioned. At the age of 17 each claimant applied for asylum or humanitarian protection but the applications were refused. The First‑tier Tribunal dismissed their appeals before they had reached the age of 18. The Upper Tribunal dismissed their appeals after they had attained that age. In each case the Upper Tribunal approached the assessment of risk on return on the basis of the facts as they were at the time of the hearing before it, including the fact of the claimant's recently attained majority. Before the Court of Appeal the claimants submitted that the Secretary of State had failed to discharge her duty to endeavour to trace their family members in accordance with regulation 6 of the 2005 Regulations. They submitted that if the duty had been discharged it would have confirmed their assertions of a lack of family support in Afghanistan, which could be a powerful indicator that an asylum claim was well-founded. They also submitted that the Secretary of State and the First‑tier Tribunal had failed to have regard to the best interests of the claimants as children pursuant to section 55 of the 2009 Act. The issue before the court was whether the claimants should have retained the advantages, in immigration terms, of their minority when their appeals were heard. It was held that the general rule was that a specialist tribunal dealing with asylum appeals considered them on the basis of the facts and circumstances prevailing at the time of the hearing. The duty to endeavour to trace a minor's family members was not discharged by merely informing a child of the facilities of the Red Cross. A failure to discharge the duty might be relevant to a judicial consideration of an asylum or humanitarian protection claim. It might also be relevant to a consideration of the duty under section 55. The court drew the inference that the Secretary of State had failed to discharge the duty in relation to unaccompanied minors because she had adopted the policy of granting them leave to remain until the reach the age of 17 and a half, by which time the duty to endeavour to trace family member would be close to expiration. Having accepted that there was a systematic breach of the duty, it was necessary to consider whether that might trigger the principles set out in Secretary of State for the Home Department v R (on the application of Rashid) [2005] EWCA Civ 744 and Secretary of State for the Home Department v R (on the application of S) [2007] EWCA Civ 546. Those principles were that when serious administrative error had resulted in conspicuous unfairness amounting to abuse and illegality, the courts would give such relief as it properly could. The court had no power to grant indefinite leave to remain or to direct the Secretary of State to do so. It was, however, open to the court to determine that a legally material factor in the exercise of the Secretary of State's discretion was the correction of injustice. Although the duty to endeavour to trace did not endure beyond the age of majority it could not be the case that the assessment of risk on return was subject to such a bright line rule. Apparent or assumed age was more important than chronological age. When these principles came to be applied to individual cases much would turn on these specific facts. At one end of the spectrum was an applicant who gave a credible and co-operative account of having no surviving family in Afghanistan or of having lost touch with surviving family members. Even if he had reached the age of 18 by the time his appeal was considered by the tribunal he might have the basis of a successful appeal by availing himself of the principles set out in Rashid and R (S) and/or section 55. At the other end of the spectrum was an applicant whose claim to have no surviving family in Afghanistan was disbelieved and he was found to be uncooperative so as to frustrate any attempt to trace his family. In such a case, he might have put himself beyond the bite of the so-called protective and corrective principle, not because the law sought to punish him for he mendacity but because he had failed to prove the risk on return and because there was no causative link between the Secretary of State's breach of duty and his claim to protection. There was a burden of proof on an applicant not just to establish the failure to discharge the duty to endeavour to trace family members but also that he was entitled to what he was seeking. A past lack of cooperation might not always defeat a claim but it might lead to the drawing of an adverse inference.

[25] In some ways KA was similar to the instant case in that the petitioner had now reached the age of majority.

[26] In giving the leading judgment, Lord Justice Maurice Kay considered the Rashid line of authority. In that case the Secretary of State, in considering an asylum application, had omitted to have regard to a policy which would or might have benefited the applicant. Over a year later the applicant's solicitors drew the omission to the attention of the Secretary of State but by the time the application was reconsidered the policy had ceased to exist because of a change of circumstances. On the applicant's claim for judicial review of the repeated refusal on reconsideration that Court of Appeal held that the applicant had been a victim of unfairness such as to amount to an abuse of power. The Court of Appeal concluded that while it should not declare an entitlement to refugee status it was appropriate to grant a declaration, the effect of which would be expected to be a grant of indefinite leave to remain.

[27] At paragraph 13 of his judgment his Lordship quoted Jackson LJ in SL (Vietnam) v Secretary of State for the Home Department [2010] 1WLR 651 at paragraph 33 to the effect that a decision may be unlawful if it is reached in disregard of a relevant policy and past prejudice suffered in consequence of such a decision may be a relevant factor to take into account, even when that policy has ceased to be applicable.

[28] At paragraph 14 his Lordship held that the Secretary of State's duty to endeavour to trace was not discharged by informing the minor of the tracing facilities of the Red Cross. At paragraph 16 he held that the Secretary of State had failed to discharge the duty in relation to unaccompanied minors from Afghanistan because she adopted the policy of granting them leave to remain until they reached the age of 17 and a half, whereafter any further application would be considered on its merits. By that time the duty to endeavour to trace would be close to expiration because of the immanence of majority. Paragraph 17and 18 go on as follows:

"17. Having accepted that there was a systemic breach of the duty to endeavour to trace, I now have to consider whether that may trigger the Rashid/S principle. It is a complicated question and not simply a matter of the systemic breach entitling these appellants, without more ado, to the allowing of their appeals with remittal to the Secretary of State to consider grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the appellant's were over 18 when their cases came before the FTT or the UT and, as a consequence and in accordance with the Ravichandran principle, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid/S principle applies, it modifies the strict application of Ravichanaran.

18. At this point, it is appropriate to refer to what I may call 'the eighteenth birthday point'. Although the duty to endeavour to trace does not endure beyond the date when an applicant reaches that age, it cannot be the case that the assessment of risk on return is subject to such a bright line rule...Given that the kinds of risk in issue include the forced recruitment or the sexual exploitation of vulnerable young males, persecution is not respectful of birthdays - apparent or assumed age is more important than chronological age..."

Paragraphs 19 to 25 run as follows:

"19. When considering the return of an unaccompanied minor or vulnerable young person to Afghanistan, a decision-maker (whether the Secretary of State or the FTT or UT) will be concerned with assessing the extent to which the reception arrangements and family support and involvement will reduce or eliminate the risk. In HK(Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 315, Elias LJ said (at paragraph 10);

'The central issue which the Upper Tribunal had to determine...was whether on the evidence it could properly conclude that these children had family in Afghanistan who were willing and able to receive and protect them.'

20. Two of the three appellants in HK were still minors when the case came before the Court of Appeal. The UT had held, as per its headnote:

'Where a child has close relatives in Afghanistan who have assisted him in leaving the country, any assertion that such family members are uncontactable or unable to meet the child in Kabul and care for him on return, should be supported by credible evidence of efforts to contact those family members and their inability to meet and care for the child in the event of return.'

21. That formulation hints at the polarized suppositions which underlie cases such as this. On the one hand, it is submitted on behalf of applicants that the failure of the Secretary of State to discharge her duty to endeavour to trace had or may have deprived them of access to the best evidence with which to prove their case, namely that the Secretary of State has used her best endeavours and considerable resources in trying to find close relatives in Afghanistan but has failed. On the other hand, the Secretary of State is concerned that children whose close relatives have had the resources and the ability to facilitate their travel to this country will or may be deliberately obstructive by withholding information which, if communicated, would enable the Secretary of State to locate a potentially protective family in Afghanistan which would or might justify refusal of the child's application.

22. In HK it was submitted on behalf of the Secretary of State that the duty to endeavour to trace is quite distinct from the processing of an asylum application. Elias LJ (with whom Pill and Rymer LJJ agreed said (at paragraph 40):

'...the regulation 6 duty is in terms said to arise as soon as an asylum application is lodged and it is plainly intimately connected with the determination of that application. This suggests that it should be treated as a necessary element in the determination of an asylum application.'

However, he went on to conclude that failure to discharge to the duty to endeavour to trace does not lead axiomatically to a successful outcome for the child's application on appeal. It is necessary for there to be a careful consideration of the facts of each individual case.

23. HK also illustrates the relationship between the failure to discharge the duty to endeavour to trace and section 55 of the Borders, Citizenship and Immigration Act 2009 which provides that the Secretary of State must make arrangements for ensuring that her functions in relation to immigration, asylum or nationality

'are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom' (section 55(1)(a)).'

In HK, the UT had not addressed section 55 and, for that reason, the Secretary of State conceded that the cases should be remitted. (The issue in this Court was whether the appellants should receive a favourable outcome without the need for remittal.) Elias LJ said (at paragraph 47):

'...even if the Upper Tribunal had had regard to the section 55 duty, it would have been entitled to conclude that it was not in a position properly to give effect to that duty without the information (or lack of it) resulting from the Secretary of State's tracing enquiries.'

In HK, as previously in DS, the disposal took the form of remittal. One of the remitted cases in HK concerned an appellant who had turned 18.

The emerging principles
24. Certain principles emerged 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.

The factual matrix
25. Although we are not yet in a position to deal with the cases of these individual appellants (save for SA), it is important to emphasise that, when the principles to which I have referred come to be applied to individual cases, much will turn on their specific facts. There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempts to trace his family. Such a case, again depending on the totality of established facts, he may have but himself beyond the bite of the protective and correct principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk of return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage. At this stage, when we have not heard oral submissions of the facts of their cases, it is inappropriate to say where on the spectrum each of these appellants lies."

[29] Mr Winter then referred to the case of EU (Afghanistan) and others v Secretary of State for the Home Department [2013] EWCA Civ 32. That case followed on from KA and dealt with the circumstances of the individual claimants. Giving the leading judgment Sir Stanley Burton said the following at paragraphs 6 - 10:

"6. I have to say that, like the Court of Appeal in S, I have great difficulties with the judgments in Rashid. In cases that are concerned with claims for asylum, the purpose of the grant of leave to remain is to grant protection someone who would be at risk, or whose Convention rights would be infringed, if he or she were returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such is a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as 'the protective principle', but this is a misnomer: the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the Court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the Court's displeasure at her conduct, or as a sanction for her misconduct. I agree with the short judgment of Lightman J in S. He said:

'...I have the gravest difficulty seeing how the fact that the challenged administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power giving rise to conspicuous unfairness, can extent to the remedies available to the courts.'

7. Nonetheless, the Secretary of State's breach of duty may be relevant to her or the Tribunal's decisions. Her failure may be relevant to the assessment of risk on return. The lack of evidence from the Secretary of State as to the availability or otherwise of familial support should be taken into account. In addition, there are cases in which the consequences of her breach of duty are relevant. SL (Vietnam) [2010] EWCA Civ 225 [2010] INLR 651 was such a case. The appellant should have been granted leave to remain under the then minors policy. If he had been, he would have been able to work lawfully. Because of his precarious immigration status, he could not work lawfully, and he resorted to the large-scale cultivation of cannabis. The circumstances in which he had done so were relevant to the assessment of the gravity of his drug offending, and should have been taken into account when deciding whether his deportation should have been upheld. Similarly, the failure to endeavour to trace may result in a failed asylum seeker, who may in consequence lose contact with his family, putting down roots here and establishing a valid article 8 claim. The necessity for such a causative link was stated in paragraph 25 of the judgment where Morris Kay LJ gave as the reason for a claimant failing to avail himself of 'the protective and corrective principle' that there was 'no causative link between the Secretary of State's breach of duty and [the appellant's] claim to protection'.

8. I would also add a comment to what was said by this court in KA about the line between minority and adulthood. One should, in addition, take into account what I conceive to be the reason for the Secretary of State's policy to grant limited leave to remain to children, irrespective of his or her asylum claim. It would simply be inhumane to return an unaccompanied young child, specifically in cases such as the present, to Afghanistan, at least where there will be no family to take care of him or her on arrival in Kabul. But that rationale applies with less and less force with increasing age.

9. In this connection, it is necessary to bear in mind that the birthday that has been ascribed to a claimant is often arbitrary. For example, a claimant contending to have been aged 16 in June 2012, but who is unable to give his date of birth, may as a formality have been given the date of the birth of 1 January 1996. If his age is disputed, and he is assessed as aged 18, he may be recorded as having been born on 1 January 1994...

10. Lastly, I should mention a point made by the Secretary of State which I consider to have substance. Unaccompanied children who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their fare and/or for a so-called agent to arrange their journey to this country. The costs incurred by the family will have been considerable, relative to the wealth of the average Afghan family. The motivation for their incurring that cost may be that their child faces risk if he or she remains within Afghanistan, or it may simply be that they believe that their child will have a better life in this country. Either way, they are unlikely to be happy to cooperate with an agent of the Secretary of State for the return of their child to Afghanistan, which would mean the waste of their investment in his or her journey here."

[30] His Lordship then went on to consider the individual cases. AK claimed, for various reasons, that he was at risk from the government authorities or from the family of a high ranking member of the Afghanistan government if he were returned to Afghanistan. The immigration judge found that he was incredible and that his account was not genuine and had simply been put forward in order to remain in the United Kingdom. Although he was still a minor, he had a family to whom he could return. He was not at real risk of persecution or ill treatment and his article 8 claim was also rejected. He appealed on the basis that the First‑tier Tribunal had failed to consider the Secretary of State's breach of the duty to endeavour to trace but there was no challenge to the credibility finding. In the Upper Tribunal it was noted that when he was asked for the address of his father he had replied "whereabouts unknown". He had given the same information in relation to the whereabouts of his brother. In relation to the addresses of his mother and another brother he had simply said "Afghanistan". The judge concluded, as he was entitled to, that he had been unable or unwilling to provide the information sought and commented "one wonders what more the Secretary of State was required to do." AK had been provided with details of organisations in the United Kingdom to whom he could have turned to seek assistance in locating his parents but he was apparently not interested in taking up that line of enquiry for himself and did nothing. His appeal was dismissed in the Upper Tribunal. In dealing with his case Sir Stanley Burnton said the following at paragraph 15:

"15. On the basis of the findings of fact made by the First‑tier Tribunal and the Upper Tribunal, I see no basis on which it could be concluded, as Mr Bedford invites us to do, that although he was 18 when his appeal was determined by the Upper Tribunal it should have benefited from the protective principle. In any event, on the Tribunal's findings of fact, AK has a family to return to in Afghanistan, and it is indeed difficult to see what could have been done by the Secretary of State if she had endeavoured to trace his family on the basis of the information he had given. His failure to give any sensible information as to the addresses of his family is entirely explicable by his unwillingness to return to Afghanistan. He would not be at risk on return and was therefore not entitled to asylum. I see no basis on which it could be said that if the Secretary of State did fail to perform her duty to endeavour to trace, her decision, or those of the First‑tier Tribunal or the Upper Tribunal, were materially in legal error."

His appeal was dismissed.

[31] EU made a claim for asylum in February 2009, having arrived in the United Kingdom in August or September 2008. He claimed to have been born in 1995 but his age was disputed and was assessed as 16. His claim for asylum was refused but he was granted discretionary leave to remain until 1 June 2010. He applied for further leave to remain but this was refused on 5 October 2010 and he appealed to the First‑tier Tribunal. That tribunal found that his account on which he based his claim for asylum was "a fabrication designed to gain him access to the United Kingdom". The immigration judge said the following:

"...given his attempt to mislead the authorities here by making a fabricated claim, initially denying having been fingerprinted and saying that he had never travelled by boat even though was detained on an island in Greece, I find that I can place no reliance on his claim that he is not in touch with his family. I have been shown correspondence with the Red Cross who say that they are unable to trace the Appellant's brother. This is not perhaps surprising given that the only information provided by the Appellant is his brother's name and the name of the village where he used to live. And note that he has not apparently provided them with the names of his mother and sister and I do not accept that the letters from the Red Cross demonstrate that is unable to contact his family. ..."

[32] The Upper Tribunal refused his appeal and in dealing with the matter, at paragraph 22, Sir Stanley Burton said the following:

"22. The only basis for an appeal is that the Upper Tribunal treated the Secretary of State's breach of duty as irrelevant. In my judgment, it was right to do so. The findings of fact made by the Immigration Judge included her rejection of EU's assertion that he was not in touch with his family. It follows that there was no link between the Secretary of State's breach of duty and EU's claim to remain in this country. His case is at the extreme and wholly unmeritorious end of the spectrum to which Maurice Kay LJ referred. I would dismiss his appeal."

[33] SU arrived in the UK aged 15 and claimed asylum on the basis that he was at risk because of a family feud that began when he was aged eight when he accidentally killed a neighbour. His claim was rejected but discretionary leave to remain until he reached the age of the 17 and a half was granted. He sought further leave to remain on the expiry of that leave. That was refused. The First‑tier Tribunal, on appeal, accepted much of his case, including the fact that he had probably killed a neighbour. However, he had remained in the same house for three years and nearby for another three years and there was no real likelihood of retaliation by the time he left Afghanistan in August 2007. It was found that the core of his original account was probably true but there was good reason to doubt much of the new evidence presented. It was inherently implausible that what he did when he was eight years old would so many years later have set off a blood feud. If it remained relatively safe for him to remain in the same locality for years it was not credible that he could not now return to that area. He maintained that he had no family to whom he could return but the First‑tier Tribunal found that it was incredible that he had lost contact with his family. Before the Upper Tribunal he did not rely on the Secretary of State's breach of her duty to endeavour to trace. It was accepted by the tribunal that he should have been given leave to remain for a few months until he reached 18 but since he had reached 18 by the time his appeal came before the Upper Tribunal the error of law was regarded as immaterial. Sir Stanley Burnton said the following at paragraph 26:

"26. Before us, it was submitted that SU was entitled to the application of the corrective principle on the basis that if the Secretary of State had endeavoured to trace his family, there might have been evidence to support his claim to have lost contact with his family. However, this submission fails to take into account the finding that his claim to have lost contact was incredible. I see no basis for the application of the corrective principle, and I would dismiss his appeal."

[34] Mr Winter submitted that in the present case the petitioner had not been disbelieved about losing contact with his family. The difficulty I have with that submission is that he was disbelieved when he said he came from Iran. However, Mr Winter said that if the Secretary of State had tried to trace his family that might have shown he was in fact from Iran. In the exercise of anxious scrutiny the Secretary of State ought to have endeavoured to trace his family. The respondent claimed that the petitioner did not want his family traced because it might put them in danger but it could have been done on a confidential basis so that the family were protected. In any event if an asylum seeker lost contact with his family and put down roots that could establish an article 8 claim.

[35] It was clear from Eba that the test facing the petitioner was a high one. It had to be something akin to a perverse decision or a wholesale collapse of procedure. Mr Winter, however, mentioned the case of AHC to which I have already referred, at paragraphs 55 - 60. He submitted that this showed that at least in relation to the question of prospects of success there was some flexibility in the compelling reasons test. The instant case had the potential to be a case of extreme risk. The petitioner had been disbelieved but the failure to trace had disadvantaged him. It undermined the findings that he was not from Iran and thus all the other findings. The fact that there was no family support was relevant to the question of whether or not it was important to return him.

Submissions for the respondent

[36] Mr MacGregor invited me to sustain the respondent's pleas in law, repel those for the petitioner and refuse to grant the remedies sought.

[37] He submitted that there was no Robinson-obvious point. There was no error of law in the immigration judge's determination. In any event the issue did not leap of the page. That being so, the respondent's position was that that was an end of the case. The failure to undertake the duty to endeavour to trace should result in a fresh claim under rule 353. Mr MacGregor said that he now knew that in fact the Secretary of State did not fulfil the duty but he submitted that there was no disadvantage. There was no causative link between the failure to trace and the outcome of the case. The petitioner had made some efforts to trace his family as did the Red Cross, as could be seen from 6/10 of process but those efforts drew a blank. If the Secretary of State had made endeavours there would have been no difference. There was no address given and no telephone number. All that was given was the name of a town in Iran against a background where the respondent did not believe he was from that country and was upheld in that. It might be that in a particular case tracing efforts might have supported the credibility of an applicant if a family were found but the matter was always fact-specific.

[38] Mr MacGregor reminded me that the point had been raised for the first time in the Petition. If a point was missed and there was fault in not raising it that was relevant as to whether or not reduction should be granted. There was no evidence about tracing before the immigration judge or the Upper Tribunal. There was no error of law in the determination. Immigration Judge Wood had said that the petitioners account was fabricated, including his claimed nationality. It was held in the individual cases in EU where there was a breach of the duty that the individual claimants were incredible and had provided little information. In these circumstances the breaches of duty had no causative impact. The petitioner was not over 18 and there was no need for tracing endeavours, so this case was dealing with historical failings. Where was the prejudice in the intervening period? If there were family members in Afghanistan he could go back to them and if not then he was in no different situation because tracing efforts would have had no result. His article 8 claim had been fully considered. All that could be said on his behalf was that his claim might somehow have been bolstered but if he had a family in Afghanistan that would weaken his article 8 claim and if he had no family he would be in the same position as he currently was. Immigration Judge Montgomery had said in the determination that the petitioner "may well have family members in his country of origin, and so arguably his family life may be enhanced by his return there" but that was a throwaway line.

[39] The petitioner had provided very little information in relation to his family. Standing the vague information provided, while the respondent acknowledged that she had failed to endeavour to trace the petitioner's family members, it was difficult to see what steps could have been taken. The petitioner's efforts to trace, as well as those of the Red Cross, did not bear fruit and indeed the petitioner had stopped the Red Cross from making any further efforts.

[40] In relation to the question of judicial review of unappealable decisions of the Upper Tribunal, Mr MacGregor referred me to Eba and Cart. The threshold was high. The First‑tier Tribunal was an expert tribunal administering a complex area of law. It decisions should not be analysed in an unduly critical way and applications for review should be treated with an appropriate degree of caution. The English "second appeals test" should be applied in relation to petitions for judicial review of unappealable decisions of the Upper Tribunal and an application should only be allowed to proceed if it raised an important point of principle or practice or there were other compelling reasons for the application to be heard. An important point of principle or practice must be one of general importance not confined to the petitioner's own facts and circumstances and there was a distinction between establishing a point of principle or practice and applying it correctly. Improper application of an established principle did not meet the first criterion. A compelling reason would only arise if the decision was perverse of plainly wrong or where the petitioner had not had a fair hearing at all. In this regard Mr MacGregor referred to paragraph 48 of Eba where Lord Hope of Craighead, discussing the phrases "some important point of principle or practice" and "some other compelling reason" said:

"...Underlying the first of these concepts is the idea that the issue would require to be one of general importance, not one confined to the petitioner's own facts and circumstances. The second would include circumstances where it was clear that the decision was perverse or plainly wrong or where, due to some procedural irregularity, the petitioner had not had a fair hearing at all."

[41] It was, submitted Mr MacGregor, difficult to characterise the decision in the current case as perverse or plainly wrong given that the issue was never raised. Procedural irregularity was pitched at a very high level. What was a compelling reason? That was addressed in Uphill v BRB (Residuary) (Ltd) [2005] 1 WLR 2070. At paragraph 24 of the judgment in Uphill the Court of Appeal said the following:

"24(1). A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied before it is clear that the judge on the first appeal made a decision which was perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below anything less and very good prospects of success on an appeal will rarely suffice...

(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to a fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."

[42] That passage was referred to with approval by Lord Hope of Craighead in Eba.

[43] Mr MacGregor drew my attention to PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 at paragraph 36 where the Court of Appeal held that "compelling" means

"..legally compelling, rather than compelling, perhaps, from a political or emotional point of view, although such considerations may exceptionally add weight to the legal arguments."

[44] Mr MacGregor also mentioned the cases of AH (Sudan) v Secretary of State for the Home Department [2008] 1AC 678, KP v Secretary of State for the Home Department [2012] CSIH 38, DB, petitioner [2012] CSOH 82 and AKA, petitioner to which I have already referred.

[45] He submitted that the authorities showed the high level at which the test for judicial review of unappealable decisions of the Upper Tribunal was pitched. Applying that test he submitted that there was no merit in the grounds of challenge contained in the petition. There had not been a wholly exceptional collapse of fair procedure. The petitioner was responsible for not having raised the issue at an earlier stage and the point was not one which had strong prospects of success. If the petitioner wished to raise this new issue he should submit fresh representations to the respondent in terms of Immigration Rule 353.

[46] Mr MacGregor then turned to look at the authorities dealing with failures in the duty to endeavour to trace.

[47] In DS (Afghanistan) the appellant was still a minor. It was pointed out at paragraph 48 that the allowance of his appeal might be a pyrrhic victory. If the instant petitioner was successful his victory would be pyrrhic also. He had been given discretionary leave to remain and had not been removed. Where was the prejudice? What disadvantage had been suffered? The onus was still on him to make good his asylum claim and the failure of the Secretary of State did not self‑evidently lead anywhere. As was stated by Lloyd LJ at paragraph 68 in DS, failure was not, by itself, relevant to the determination of the appellant's asylum application. Mr MacGregor went on to look at paragraph 69 of DS where Lloyd LJ said the following:

"69. I would also observe that, although the grant of discretionary leave to remain to the appellant was on the basis that the respondent was not satisfied as to the reception arrangements in place if he were returned, this does not show that the respondent was satisfied that no suitable reception arrangements were or could be put in place. I accept that the discretionary leave policy is applied in a precautionary way. The fact that, at a given moment, the Secretary of State is not satisfied as to the suitability of reception arrangements does not show that no suitable arrangements do or can exist. That will depend on what enquiries have been made, and with what result. Unless the respondent has enquired thoroughly, and has come the conclusion that no such reception arrangements can be made, a failure to be satisfied at a given time does not give rise to any wider inference as to the position. The appellant's submissions wrongly equated the proposition that the Secretary of State was not satisfied in the relevant respect with the different proposition that she had found that she could not be so satisfied."

[48] Mr MacGregor submitted that it did not follow just because there were no investigations that the petitioner was entitled to asylum. The onus was still on him to make good his claim.

[49] It was clear from paragraph 31 of HK that each case depended on its own facts. Reference was made to paragraph 34 and to paragraph 36, which indicated also that even if the Upper Tribunal found that there were no family members who could receive the children in Afghanistan it would not necessarily follow that they could not safely be returned. Paragraph 39 showed that the regulation 6 duty was not distinct from the asylum application and paragraph 46 showed that a breach was not, of itself, relevant. It did not follow that a failure automatically led to a grant of asylum.

[50] Under reference to KA Mr MacGregor submitted that it was not clear that the "corrective principle" would bite in the instant case. Everything was fact sensitive. The breach was not a magic ingredient for the petitioner. Mr MacGregor accepted that past prejudice could be relevant but there was no such prejudice. It was not good enough for the Respondent just to say that the Red Cross had tried to make contact with the petitioner's family but that was relevant to a consideration of the effects of the breach of duty. Was there any causative link? Mr MacGregor referred to paragraphs 17, 22 and 25 of HK as well as paragraph 26 which is in the following terms:

"26. It is important to emphasise that the preceding paragraph uses the language of established facts and the need to establish disadvantage. Whether one is considering asylum, humanitarian protection or corrective relief, there is a burden of proof on an applicant not just to establish the failure to discharge the duty to endeavour to trace but also that he is entitled to what he is seeking. A past lack of cooperation on the part of the applicant may not always defeat his claim - it did not in DS or HK - but it may lead to the drawing of an adverse inference..."

[51] Mr MacGregor submitted that there had been a failure of duty but the petitioner had been grant discretionary leave to remain and the failure to undertake the duty to endeavour to trace had not caused any prejudice.

[52] Mr MacGregor then referred to EU. That case highlighted the need for a causative link between the breach of duty and the claim for protection. It showed that it must be demonstrated that if the respondent had sought to fulfil the relevant duties there was scope for the investigations to have made a difference. In relation to the case of AK it was said at paragraph 15 that it was difficult to see what could have been done by the Secretary of State if she had endeavoured to trace his family on the basis of the information he had given. I have already referred to that information. There had been a failure in duty but it had had no effect.

[53] EU's own account was found to be a fabrication. In those circumstances again there was no link between the Secretary of State's breach of duty and his claim to remain in this country.

[54] The duty required an endeavour to trace but the intensity of that endeavour depended on the individual case and there must be a causative link between any breach of the duty and any disadvantage suffered. It was difficult to see what more the Secretary of State could do in the instant case. The petitioner's claim to be from Iran was not believed by the Secretary of State and she had been upheld in that by two immigration judges. His efforts to trace per the Red Cross were a failure as were their own. There was no indication how, had the duty been fulfilled, his claims would have been bolstered.

[55] The issue raised in the petition was not raised before the First‑tier Tribunal or the Upper Tribunal and was not an obvious point of Convention law. The petition should be dismissed. Furthermore it did not satisfy the high threshold for judicial review of an unappealable decision of the Upper Tribunal. Paragraph 8 averred that there was an "...arguable error of law". That was not sufficient. The petitioner was at fault for not having raised the issue before the previous tribunals. No disadvantage was identified by the petitioner which flowed from the failure to endeavour to trace. It was difficult to see what tracing exercise could have been conducted in relation to the petitioner's family given the information available to the respondent and despite the failure to endeavour to trace the petitioner would still need to demonstrate a need for international protection. The starting point would be the decisions of the two previous immigration judges who both held that he was not in need of such protection. No explanation was provided in the petition as to what difference the issue of tracing would make to the underlying claim for international protection. The petitioner had no legitimate claim to any further grant of leave or to any other form of international protection in the United Kingdom. There was no compelling reason for reduction.

Reply for the petitioner

[56] Mr Winter submitted that if the Upper Tribunal were not persuaded there was an error of law on the part of the immigration judge but there was an admitted breach of duty there was power for them to remit to UKBA to consider. He referred to paragraphs 19.4 and 19.5 of Macdonald's Immigration Law and Practice 8^th Edition (Volume 1) and in particular to section 86(3) of the Nationality, Immigration and Asylum Act 2002. He also referred to the cases of Basnet [2012] UKUT 00113 at paragraph 33 and Naved [2012] UKUT 00014 at paragraphs 15 - 19. If I were persuaded that the duty had not been undertaken and that there was detriment to the petitioner I could remit it to the Upper Tribunal and they could entertain the matter.

[57] While he had used the phrase "arguable error of law" in the petition, that was only in the context of the test for permission to appeal from the First‑tier Tribunal to the Upper Tribunal. I am persuaded that this is correct and I need say no more about it.

Discussion

[58] It is noteworthy that the grounds of appeal which were submitted to the First‑tier and Upper Tribunals no longer feature. In a nutshell they attacked the immigration judge's treatment of the evidence and the weight which she attached to particular features of it. It was not suggested before me that there was any merit in those criticisms or that the refusal to grant permission to appeal on those grounds was in some way flawed. Perhaps it suffices for me to say that the decisions to refuse permission to appeal on those grounds were unsurprising.

[59] It is not necessary for me to set out again the test which the petitioner has to pass in terms of Eba. The petitioner seeks to persuade me that there was an obvious error of law in the immigration judge's treatment of the petitioner's dealings with the Red Cross, as set out in the paragraph of the determination which I have quoted, that that obvious error of law was not picked up by the First‑tier or Upper Tribunals in considering the issue of permission to appeal and that there is a compelling reason why I should reduce the latter's refusal of permission. I think that the appropriate starting point is to consider whether the Petition discloses any error of law at all in the approach of the immigration judge. In my opinion the answer to that is clearly in the negative. At no stage in paragraph 14 of her determination does the immigration judge give any indication that the onus for tracing his family lies on the petitioner rather than on the respondent. That matter simply never arose. The petitioner produced a letter from the British Red Cross which indicated that he did not make contact with them until the end of February 2012. In the view of the immigration judge that letter did not assist his claim. He had argued that he was fearful of placing his family in danger but the judge questioned why, if that were the case, he was willing to make contact in February 2012. The first and fifth sentences of paragraph 14 are in the following terms, as I have indicated: "The letter from the British Red Cross does not assist the appellant's claim" and "the British Red Cross letter takes matters no further." I cannot see what on earth this has to do with the duty in terms of regulation 6. The judge has simply considered the production submitted by the petitioner and indicated that it does not assist. The last sentence is in the following terms:

"The timing of his first contact with that organisation gives rise to the suspicion that it was made with these proceedings in mind. "

That is an observation which, it respectfully seems to me, the judge was entitled to make. It will certainly not be sufficient compliance with her duty for the respondent simply to refer an asylum seeker to the Red Cross (KA at paragraph 24) but that issue does not arise in the determination. The criticism by the immigration judge was muted and has parallels with that made of the individual AK in the case of EU and others at paragraph 13. AK had been provided with details of organisations in the United Kingdom to whom he could have turned to seek assistance in locating his parents but was apparently not interested in taking up that line of enquiry for himself and did nothing. While it cannot be said that the petitioner did nothing, in view of his contact with the Red Cross, the immigration judge was entitled to have regard to the timing of that contact. See also DS at paragraph 47. Lack of cooperation with the Red Cross does not relieve the Secretary of State of her duties but would be relevant to a decision as to what the Secretary of State was required to do in a particular case and also to the eventual decision as to whether the right to asylum has been established.

[60] It cannot seriously be argued that the immigration judge should have been on notice that the respondent had failed to carry out her duty to endeavour to trace. Neither can the First‑tier nor the Upper Tribunal be said to have missed an obvious point when considering permission to appeal.

[61] On one view that might be thought be an end of the matter. That indeed was the submission on behalf of the respondent.

[62] However I think I have to consider matters a little further. If a genuine Robinson-obvious point arises on appeal or at the stage of consideration of a judicial review it seems to me that the court will have to have regard to it in deciding whether or not to grant the remedies sought. It is, however, only a starting point. As was stated in Robinson, an obvious point is one which has a strong prospect of success. It is not one which is merely "arguable" (Robinson at page 946). Of course one would have to go further in a case such as the one under consideration. The fact that a point has strong prospects of success is only one of the criteria to be applied in deciding whether to reduce an unappealable decision of the sort under consideration.

[63] Before going any further I should say a word or two about the case of Bulale. In my opinion that case is of no assistance to the petitioner. As I read it the court had before it all the facts necessary for it make a decision on the merits and is was conscious of a duty to act in compliance with the United Kingdom's international obligations. The situation was an on-going one and the decision of the court ensured that in fact the obligation was complied with. In the instant case I am in no position to make any decision on the merits of the petitioner's claims for protection, whether as an asylum seeker or on the basis of article 8 or on any other basis for that matter. Furthermore the failure in duty is an historical one which cannot be undone. The obligation in respect of the petitioner cannot now be complied with. As was said in EU at paragraph 6, the court should not require or encourage the Secretary of State to grant leave in such circumstance either in order to mark the court's displeasure at her conduct or as a sanction for her misconduct. There is still a burden on the petitioner to make good his claim for protection.

[64] I do not think it necessary for me to discuss whether an obvious point is one which can be seen on a consideration of the papers or whether it still counts as obvious if it arises after argument, since I have heard argument in this case. There is a question, though, whether the point raised by the petitioner is an obvious one in the Robinson sense, in so far as it has now been raised before me. I say this because although I have decided that it was not an obvious point so far as the First‑tier and Upper Tribunals were concerned it has now been conceded before me on behalf of the respondent that no steps were taken to fulfil the duty to endeavour to trace. Before I consider that I should say that the petition refers to there having been a systematic breach of the duty because the respondent adopted the policy of granting people such as the petitioner leave to remain until he reached the age of 17 and a half. That was the conclusion reached in KA on basis of the materials submitted to the court in that case but I am not in a position to hold that there was such a systematic breach of duty as far as the petitioner was concerned. Insufficient information has been provided for me to reach a conclusion on that.

[65] In this case it is obvious as a matter of fact that the duty has not been complied with. However, on the basis of the information in the petition, the productions and the argument presented to me I am quite unable to say that the petitioner has presented to me an obvious point of law which provides him with strong prospects of success in ultimately vindicating his claims for protection.

[66] I am not impressed by the argument presented on behalf of the respondent that the failure to comply with the duty makes no difference. If that were to be correct it would deprive the duty of any substance. In this connection I have regard, for example, to what was said in paragraph 21 of KA. I shall refer to that again shortly.

[67] On the other hand, I agree that the consequences of any breach of the duty will depend on the circumstances of each case, as was demonstrated in EU.

[68] In my opinion the information provided by the petitioner to the respondent is so similar to that provided by EU has to be virtually undistinguishable. The information given was lacking in any detail and I am not satisfied that the petitioner has demonstrated any causative link between the admitted failure to comply with duty and his asylum or article 8 claims. While there was no obligation on him to contact the Red Cross, the result of his contact with them lends support to that conclusion. Section 55 of the 2009 Act takes him no further.

[69] I am not satisfied that the petitioner has shown that he has strong prospects of success and it is my opinion that the petition does not get off the ground.

[70] In this regard I take account of paragraph 26 of EU. As I have indicated that is in the following terms:

"Before us, it was submitted that SU was entitled to the application of the corrective principle on the basis that if the Secretary of State had endeavoured to trace his family, there might have been evidence to support his claim to have lost contact with his family. However, this submission fails to take into account the finding that his claim to have lost contact was incredible. I see no basis for the application of the corrective principle, and I would dismiss his appeal."

[71] That submission made on behalf of SU is similar to what was said on behalf of the current petitioner. I agree with the submission in as much as it undermines in general terms the submission on behalf of the respondent that a failure to comply with the duty makes no difference. It is plain that prejudice suffered in consequence of the failure may be a relevant factor to take into account even when the policy has ceased to be applicable (paragraph 13 of KA). I think there is something in the submission set out at paragraph 21 of KA that a failure of the respondent to discharge her duty may have deprived the petitioner of access to the best evidence with which to prove his case, namely that she had used her best endeavours and considerable resources in trying to find close relatives of his but had failed. However, while that may be true in general terms it seems to me that the circumstances of this particular case deprive that submission of any effect. While a failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim or indeed a consideration of the section 55 duty it seems to me that nothing in the circumstances disclosed to me show that the failure in duty made any difference at all. At least I do not think that an argument that it did make a difference has strong prospects of success.

[72] As with SU two immigration judges have, on the basis of reasoning which respectfully appears to me to be cogent, found the petitioner's claims to be incredible. In the circumstances the breach of duty is effectively irrelevant.

[73] It follows that there is no compelling reason to reduce the decision complained of.

[74] There are two further reasons why I take that view.

[75] In the first place, while the petitioner did not know that as a matter of fact the duty had not been complied with, he and his legal advisors had the determination of Immigration Judge Montgomery before them. If paragraph 14 gave rise to the difficulty set out in the Petition it was open to them to take that point at an earlier stage. It does not seem to me that the court should be compelled to make up for their failure to do so. I accept that it was not known to them, until the matter was conceded by the respondent, that the duty had not in fact been complied with but they were able in the Petition to narrate that there was no evidence that it had been. That could have been brought to the attention of the First‑tier and Upper Tribunals when seeking permission to appeal.

[76] In the second place, the petitioner is not without a remedy. As was submitted on behalf of the respondent, it is open to him to endeavour to present a fresh claim. It was not submitted to me that this rendered the petition incompetent in terms of the rules of court but nonetheless it does go to the question of whether there is a compellable reason to grant the remedies sought.

[77] Mr Winter submitted that in a fresh claim the petitioner would be stuck with the adverse credibility findings made by the previous immigration judges.

[78] That will be so but he would be faced with that difficulty on appeal anyway as is demonstrated in the case of EU.

[79] For the sake of completeness I should say that I do not think that anything turns, for present purposes, on the case of AHC.

Decision

[80] I shall repel the petitioner's plea in law, uphold the pleas in law for the respondent and dismiss the petition.