Failed asylum-seekers - Garden Court Chambers

Report
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FAILED ASYLUM-SEEKERSWHAT DO THEIR CASES
SHOW US ABOUT A DURABLE
SOLUTION?
UK Connect Conference
19/9/2014
Sheona York, Kent Law Clinic, University of Kent
Kent Law Clinic’s research: ‘How
children become failed asylum-seekers’
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In 2012, the Court of Appeal in KA (Afghanistan)
suggested that young asylum-seekers for whom the
Home Office did not endeavour to trace their families,
in breach of the EU Reception Directive, may therefore
have lacked corroboration of their asylum claim, and
may merit ‘a remedy’.
Kent Law Clinic looked for young Afghan ‘failed
asylum-seekers’, of which around 100 were though to
be living in Kent, offering to make a fresh claim if
possible, while researching what had gone wrong in
their cases.
Basic requirements or elements of how to arrive at a
durable solution for a child: some suggestions
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Any migrant child or young person must be given
enough time and the right conditions to enable them
to explain their circumstances as fully as they can.
Such explanation not to be a once-and-for-all
asylum interview, which is then forensically and nitpickingly examined for tiny differences with other
information given by or on behalf of the child
Even for young people who may not
have an asylum claim...
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As a minimum, any initial decision-making process
must consider adopting a shared burden of proof,
or, at least, putting into practice the UN Handbook,
which requires a shared burden of establishing the
facts (UN Handbook para 196)
‘...Thus, while the burden of proof in principle rests on the
applicant, the duty to ascertain and evaluate all the
relevant facts is shared between the applicant and the
examiner. Indeed, in some cases, it may be for the
examiner to use all the means at his disposal to produce
the necessary evidence in support of the application...’
More basic requirements...
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Whatever it takes to confront the ‘culture of
disbelief’, particularly in the Home Office, but also
in the tribunal, must be done.
Nothing will be achieved without doing this; - but
see what Damien Green said to Kent County
Council, begging for proper funding for councils to
assist all young people covered by the leaving care
provisions:
House of Commons Education
Committee HC 149-1: evidence: q 138
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Damian Green: I do not have the costs in front of me,
but you make the point that this has to be money
that comes from somewhere. Again, I return to the
point that that would send quite a powerful signal
around the world: get to Britain before you are 18,
and you can then live off the British taxpayer until
you are 24. I do not think that would be a helpful
signal, either for the individuals themselves or
certainly for the British taxpayer.
Our research showed how a messed –up
asylum claim is not a durable solution.
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Some of the problems we found:
 Unlawful interviews, including unlawful detention, on
and shortly after arrival;
 Age assessments as older than claimed age: no
Merton-compliant assessment provided until later or
at all
 Poor legal advice, especially
 failure
to appeal a first refusal of asylum
 Further application for leave to remain at 17 ½ not
supported by any or any fresh evidence
Further problems found in our cases:
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Refusals relying on ‘evidence’ unlawfully obtained
and ‘discrepancies’ (for example from an age
assessment) not shown to or put to the young person
The issue of family tracing was often used to
discredit the young person’s claim.
Home Office and Tribunal consideration laced with
the ‘culture of disbelief’
In particular, the Tribunals and eventually even the
Court of Appeal showing clear circular reasoning in
relation to family tracing
Some quick examples: no proper
evidence record
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Case 5 was recorded as having in his jacket pocket a
notebook containing telephone numbers. The notebook
was not kept as evidence. No official attempted to
telephone any of the numbers, nor was the applicant
properly asked where the notebook came from. This
notebook was relied on that he had been untruthful
about his family.
He explained to Kent Law Clinic that he had been
smuggled to the UK in a refrigerated lorry, and given
five jackets, to keep him warm. We were the first
people in several years, to have interviewed him
properly.
Age assessments:
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16 of our 20 case examples had been age disputed,
some by only a few months, others by 1-3 years.
Always older than their claimed age.
The Home Office often relied on 1-page summaries
from Social Services. A full report was not always
available, even by the time of an appeal.
The Tribunal dealt inconsistently with this issue:
Case W- accepted his claimed age in default of any written
report
 Case A: 1-page report accepted as ‘the most reliable
evidence’
 Case C: case remitted because no Merton-compliant
assessment- then waited over a year for a new decision.
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Reasons for Refusal letters (RFRLs)
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The UNHCR Guidelines on children’s asylum claims
were rarely followed.
Almost always the main reasons for refusal were
‘lack of credibility’; ‘implausibility’; ‘failure to
adduce evidence’.
‘your claim is based on information given to you by
your mother, and therefore considered to be
subjective. You have adduced no evidence...’
‘you have adduced no evidence’ to support your view
that your father was taken by the Taliban...’
Legal issues in RFRLs:
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Reliance on unlawful interviews and on age assessments
to dispute credibility without putting the discrepancies
to the young person
Lack of consideration of child-specific persecution (such
as being an orphan and therefore a member of a
‘particular social group’ in Afghanistan)
More recent RFRLs, especially from the Kent local
immigration team, were immensely long, quoting long
passages from cases not relevant to the young person.
Hard not to believe this is not just intimidation directed
at inexperienced legal representatives.
More legal issues in RFRLs: the best
interests of the child...
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Failure to consider the best interests of the child in
discussing relocation (‘it is considered safe for you to
return to Kabul...’)
Treating the best interests of the child as a duty
which gradually fades away as the young person
approaches 18:
‘You will soon turn 18 and then ..... You will no longer meet the
definition of a child...’
(that young person had been found to be an orphan and at
risk in his home area, but...)
Problems with legal representation
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Of 12 cases with an initial right of appeal, 10 did
not appeal.
Very few were explicitly advised that they had lost
their case, simply that they had been granted ‘a
visa’ and they could apply again later.
Most of these simply sent an HPDL form, with no
further evidence, and no attempt to deal with the
issues raised in the refusal letter.
All of those applications were refused: all
appealed, and all lost.
The baleful effect of legal aid
contracting...
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At the first appeal stage, many were ‘merits failed’ by
their legal representative. Several representatives
failed to identify clear Convention grounds or valid
legal arguments, and none applied the more generous
criteria for granting legal aid to children (at that stage
children with ‘borderline’ cases should have been
granted legal aid).
One firm ‘merits failed’ the client but offered to do the
appeal privately for £1500. Another legal aid firm
took on the case, appealed out of time and the child
got refugee status.
Recommendations for legal
representatives:
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Not just training or accreditation, but a requirement that
legal representatives represent their clients, rather than
acting as quasi- judges:
‘... Your performance at your asylum interview was poor,
...and I opine that your account is vague and lacking in
detail... I advise you that an appeal would have
insufficient merit...’
 The legal aid contracting system must eradicate
perverse incentives not to appeal children’s refusals of
asylum, for example the burdensome need to apply for
an extension beyond £800/ approx 12 hours work on
a case.
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The family tracing issue: ‘reversing the
duty’
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In none of our cases was any family tracing carried out.
Some RFRLs said it was not possible, and others advised
the applicant to contact the Red Cross. Others said:
‘...you have attempted to contact your family through the
Red Cross. It is considered that you are trying to contact
your family and therefore you can be reunited with them
on your return...’
‘it is considered that you have failed to provide enough
information about your family ... It is considered that you
have failed to discharge the duty placed on you in KA’ (we
found the client’s village easily on the internet)
The asylum process itself does not best
serve a child or young person: ex. 1
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Case X arrived aged 15. Assessed as over 18,
interviewed and detained for 12 months to be sent to
Greece. No initial legal advice.
Solicitors obtained injunction against removal (all
removals to Greece stopped in 2011 – case of NS)
Case X was finally interviewed 3 years after arrival,
still treated as an adult
On appeal, it was accepted that he had been a child
on arrival, but found not to be at risk now, as an adult
on his own claimed age. The judge relied on the
screening interview, despite knowing that it had been
carried out without proper safeguards
The asylum process itself does not best
serve a child or young person: ex. 2
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Case Z arrived in 2007. Accepted as 15. Refused but
granted 2 years’ DL. Not advised to appeal.
Applied for an extension of DL 2 years later. After 7 months
it was refused.
His appeal was allowed on a technicality (s47 dual decision
point). Referred back to HO for new decision. No hearing.
After 9 months a further refusal but not received either by
client or legal representative
After 8 further months, Z hears that his case was refused.
When Kent Law Clinic met him, he was paying a private
solicitor but no idea what that solicitor was doing for him.
He has never had his case considered before a tribunal.
Circular reasoning in the Tribunal and
Courts goes like this:
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An appeal is dismissed on credibility grounds
It is inferred from this that the appellant has not
given true information about his family
Which leads to an unchallengeable finding of fact
about his family
Tracing may have produced useful evidence for the
child
But because of the finding regarding his family it is
decided that tracing would have been unsuccessful,
so no loss can have arisen from the failure to trace.
EU: the Court of Appeal’s view of
Afghan families
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Para 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 socalled 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 with them in 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.
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EU: should the courts act as a sanction
against the Secretary of State?
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Para 6:
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 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.
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Conclusion:
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Given the above difficulties, even
to achieve a just determination for
a young person, whether or not
leading to a durable solution for
them, would be a big
achievement.
Some references (full list in the research report)
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How children become failed asylum-seekers University of
Kent June 2014
http://www.kent.ac.uk/law/clinic/how_children_becom
e_failed_asylum-seekers.pdf
KA (Afghanistan) [2012] EWCA Civ 1014
UN Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
R(AN & FN v SSHD) [2012] EWCA Civ 1636;
VS v SSHD [2014] EWHC 2483 (QB)
LQ (Afghanistan) [2008] UKIAT 00005
EU (Afghanistan) [2013] EWCA Civ 32

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