UK: Duty to trace the families of unaccompanied children: Follow-up to the KA case

In the case of KA (Afghanistan) and others v Secretary of State for the Home Department [2012] EWCA Civ 1014, the England and Wales Court of Appeal established a series of principles to be applied to cases where the Secretary of State for the Home Department had breached her duty to trace the families of unaccompanied asylum-seeking children as prescribed by Article 19.3 of the Reception Directive. This judgment established that said duty was not fulfilled by merely granting children leave to remain until they were 17 and a half and directing them to the Red Cross. It also established that, when the Secretary of State had not complied with her duty, failed asylum-seeking children who appealed against a negative decision after coming of age should not be treated according to the circumstances at the time of the appeals (i.e. as adults), as the failure of the Secretary of State had deprived them of the best evidence with which to prove that their family could not be traced and therefore they would not be able to avail themselves of the protection of their family in their country of origin. Hence, when assessing the risk entailed by eventual deportation, and whether the applicants should be granted further leave to remain, courts need to consider whether the risk that applied to the person when they were under 18 continues to exist or not in order to correct the illegality committed by the Secretary of State ("corrective principle").

In the new case of EU (Afghanistan) and others v Secretary of State for the Home Department, the Court of Appeals applies this principle to the six individual cases which gave rise to the KA and others judgment. However, this new judgment narrows the scope of the application of the "corrective principle", as it establishes that the person seeking to rely on it needs to do so only because he has been found not to be in need of protection. There must be a causative link between the breach of duty of the Secretary of State and the applicant's claim for protection, either because this failure is relevant for the assessment of risk on return, or because this failure may result in the creation of private life bonds to the UK by the failed asylum seeker, which would merit protection under Article 8 ECHR. On the contrary, indefinite leave to remain should not be given to someone who has no risk on return or whose Convention rights will not be infringed by return. In the six individual cases concerned by the judgment, none of them was found to be in need of protection having regard to the circumstances of their cases and to the lack of credibility of some of their claims, and the failure of the Secretary of State to trace their families had been irrelevant to the alleged risks. Therefore, their appeals were dismissed.

Read the full text of the judgment here.

Read a comment on the judgment at the Free Movement blog.

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