UK - Court of Appeal, 22 March 2011, DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305

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The Court of Appeal concluded that the Tribunal must make a best interest of the child determination in considering an asylum appeal made by an unaccompanied minor. Further, that although the Secretary of State has a duty to trace the applicant’s family under the Reception Conditions Directive, this duty exists independently of the obligation to appropriately consider an asylum claim. Therefore the Secretary of State’s failure to act on the basis of the duty is not a ground on which an asylum appeal could be allowed.  


The applicant was an Afghan national who had come to the United Kingdom and claimed asylum, aged 15. His father was dead and his mother and uncle lived in Taghab in Afghanistan. His claims for asylum and humanitarian protection were refused. He was, however, granted discretionary leave until he was 17 1/2 years old, in accordance with the Secretary of State’s policy. The policy provided that a grant should be made where there were no safe and adequate reception conditions in place in the country of return.  He appealed on the grounds that he was a refugee, fearing persecution on account of his membership of a particular social group and that he was entitled to subsidiary protection.

The Tribunal had dismissed his appeal on the basis that the applicant had not given the details of his mother to the Red Cross tracing service which the applicant had approached and, therefore, it was not prepared to accept that the applicant’s uncle had disappeared.    

Decision & Reasoning: 

Lord Justice Lloyd and Lord Justice Rimer gave the majority judgments.  They held that in order to succeed in his asylum appeal the applicant had to demonstrate that he was, in effect, an orphan from Afghanistan.  The Tribunal had failed to consider section 55 of the Borders, Citizenship and Immigration Act 2009 and the consequent duty to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom in the exercise of the function of the Secretary of State in respect of immigration, nationality or asylum.  Although the Secretary of State was not under this duty when the decision in the application was made, because the relevant legislation was not in force, the Tribunal should have taken the duty into account as a result of the nature of its decision making capacity. The majority allowed the appeal on the basis that the Tribunal had failed to undertake a “best interests” determination in the child’s case.

However, the majority did not uphold a further ground of appeal put forward by the applicant which alleged that the Secretary of State was under an obligation to endeavour to trace the members of the child’s family as a result of the Regulations that transposed Art 19 of the Reception Directive.  The applicant argued that the Secretary of State’s failure to take any steps to trace his parents and to draw this obligation to the Tribunal’s attention was an error of law in respect of the consideration of his claim for international protection.  The majority held that this duty to attempt to trace existed separately to the duty to appropriately consider the asylum application.  The asylum application should be determined on the merits, regardless of whether any action had been taken by the Secretary of State to trace the applicant.  If the Secretary of State had taken steps in accordance with the duty, this may have produced evidence of relevance to the asylum application.  However, the failure to undertake any steps is not, by itself, relevant to the determination of an unaccompanied child’s asylum application.

Lord Justice Pill, in a minority judgment, upheld the appeal on different grounds. He emphasised that, for the purposes of the appeal, the Secretary of State accepted that, having regard to the risks for minors in Afghanistan, the applicant should be treated as if he were an orphan.  Consequently, in the absence of adequate reception facilities available in Afghanistan, he would risk exploitation and ill treatment. He held that the relevant paragraph in the Regulations that transposed Art 19 of the Reception Directive “...imposes 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 makes his claim for asylum.”  He rejected the submission that because the Regulations deal with the reception of asylum seekers that the Secretary of State can ignore the duty in the assessment of the asylum application of unaccompanied children.  He further found that the failure of the applicant to fully cooperate with Red Cross tracing service was not an excuse for the Secretary of State to do nothing in respect of tracing, stating that “the duty cannot be ignored”.  The appeal should also be allowed on the basis of the failure of the Secretary of State to act on the basis of the duty to trace.

In addition, the Court of Appeal made obiter dicta comment on LQ (Afghanistan) (seperately summarised).  Lord Justice Lloyd held that the decision “[l]eaves a degree of uncertainty as to the definition of the particular social group.  Does membership cease on the day of the person’s eighteenth birthday?  It is not easy to see that risks of the relevant kind to a person who is a child would continue until the eve of that birthday, and cease at once the next day.  However, for present purposes it is sufficient that a particular social group is recognised consisting of Afghan citizens who are under 18 years old and who are orphans, whether strictly speaking or in practical terms”.


The appeal was allowed and remitted to the Tribunal for further consideration.