Immigration

MWA (Afghanistan) v Secretary of State for the Home Department: Court of Appeal, Civil Division: 21 May 2014

Asylum seeker – Age assessment – Claimant Afghani national seeking asylum – First-tier Tribunal (Immigration and Asylum Chamber) (FTT) finding claimant minor – High Court in distinct judicial review proceedings finding claimant adult

In June 2009, the claimant Afghani national entered the UK and claimed asylum in July. He gave his age as 12 years, but was assessed as being over 18 years. The secretary of state refused his asylum claim and he appealed. The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT) found that the claimant was a minor, but dismissed his appeal.

In a subsequent decision of the High Court in judicial review proceedings, brought consequent upon a decision by the local authority under section 20 of the Children Act 1989 (the 1989 act), it was found that the claimant was not a minor (see [2011] EWHC 3488 (Admin)) and permission to appeal that decision was refused (see [2012] EWCA Civ 1432). On appeal against the FTT’s decision, the Upper Tribunal (Immigration and Asylum Chamber) (the UT) found that the FTT had erred in law in its assessment of the evidence and set aside its determination.

It further placed considerable weight on the unchallenged judicial finding of the High Court and found the claimant to be an adult. Accordingly, the UT found that there was no objection to removal and dismissed the claimant’s appeal. The claimant appealed.

It fell to be determined whether the UT had been entitled to place reliance on the conclusion of the High Court in the judicial review proceedings. The appeal would be dismissed.

The UT had been entitled to find an error of law in the FTT’s determination and not to preserve the finding as to age. The UT had not been bound and had not been entitled to regard itself as bound by the High Court’s decision. The two different kinds of proceedings were not to be conflated and the tribunal proceedings involved the lower standard of proof by reference to a reasonable degree of likelihood.

However, the UT had been entitled to have regard to the High Court’s decision and to attach considerable weight to that decision. It comprised new material relating to the age of the claimant such as to justify its being taken into account. In the event, the UT had not, in practice, even if not in form, regarded itself as bound by the High Court’s decision and had not fundamentally erred. Not only was that flatly contrary to what the UT had actually said, it was wholly inconsistent with its approach as set out in its determination.

Further, there was no proper basis for saying that the UT had been obliged to accept the finding of the FTT as to age once it had rejected the argument that it had been bound by the High Court’s decision (see [33], [34], [36], [38], [39], [41], [46], [47] of the judgment).

Becket Bedford (instructed by Sultan Lloyd Solicitors Ltd) for the claimant; David Blundell (instructed by the Treasury Solicitor) for the secretary of state.