UK Court of Appeal: guidance on general approach to the fair determination of claims for asylum from children and other vulnerable groups

Thursday, July 27, 2017

In its judgment in AM (Afghanistan) v SSHD & Lord Chancellor, published on 27 July 2017, the UK Court of Appeal provided guidance on the general approach to be adopted by the First-tier Tribunal and the Upper Tribunal to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited.
The case concerned a 15-year-old Afghan who fled persecution from the Taliban who had sought to recruit and train him. He suffered from moderate to severe learning difficulties. His asylum application was rejected by the Secretary of State due to lack of credibility, but he was given discretionary leave to remain in the UK until he is 17 ½ years old. The applicant appealed that decision before the First-tier Tribunal, without success. On a subsequent appeal, the Upper Tribunal concurred with the lower tribunal.
The Court of Appeal reached an opposite conclusion and found the First-tier Tribunal to have failed inter alia to have taken proper account of the applicant’s age, vulnerability and learning difficulties when looking at alleged inconsistencies. That tribunal had also failed to properly consider the psychologists report and the information on Afghanistan. For this reason, the Court allowed the appeal and sent the case to be reconsidered by the First-tier Tribunal. In addition, the Court of Appeal offered further guidance for the fair determination of asylum claims from children and other vulnerable groups.
The Court of Appeal recognised the principle that “a child is foremost a child before he or she is a refugee” and that “a decision taken without regard to the need to safeguard and promote the welfare of any children involved will not be ‘in accordance with the law’ for the purposes of Article 8 ECHR”. Other safeguards include, inter alia, the obligation to take into account medical evidence when considering overall credibility, required flexibility in relation to wide range of specialist expertise, and the power to appoint a litigation friend where required for the sake of fairness and effective access to justice.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Best interest of the child
Child Specific Considerations
Effective access to procedures
Vulnerable person