The Court of Appeal has ruled that the First-tier Tribunal must revisit a case in which it denied asylum to a young Afghan boy, in a judgment gives strongly worded guidance on ensuring vulnerable children are not denied justice.
Sir Ernest Ryder, Senior President of Tribunals, found that the tribunal failed to take account of the boy’s age, vulnerability and learning difficulties.
The case centres on a boy referred to as ‘AM’ who was fleeing from Taliban persecution.
AM claimed asylum in July 2012, but his application was rejected by then home secretary Theresa May in 2013. He was 15 at the time, but was granted leave to remain in the UK until he was 17 years and six months old.
According to the reasons for refusal, AM’s evidence was inconsistent; he had not demonstrated that he fled Afghanistan in fear of his life because he failed to claim asylum in other EU member states; and he had not demonstrated a risk to his life and could get assistance from the Afghan authorities.
AM appealed the decision to the tribunal.
During that hearing, a witness statement by the appellant, an expert country report [the Marsden report] and a psychological report called the Sellwood report were all taken into account.
Despite this, the tribunal noted that there were ‘several inconsistencies’ in AM’s evidence.
However, in a 27 July judgment the Court of Appeal said the tribunal’s response to the Sellwood report was ‘wholly inadequate’ and made only ‘scant references’ to its content - including to a relevant paragraph describing how AM’s learning difficulty may cause problems when answering questions.
On appeal, the upper tribunal upheld the tribunal ruling. But according to Ryder ‘its conclusions were not reasoned by reference to the psychological report, which was again ignored’.
Ruling that the case should be sent back, Ryder said tribunals should ‘closely consider whether oral evidence is necessary at all’ and whether a requirement may militate against a fair hearing.
It added that even if there are discrepancies in the evidence, tribunals must consider the extent to which age, vulnerability and or sensitivity of the witness were an element.
The judgment also stressed that tribunals have the power to appoint a litigation friend where access to justice requires it.
The court said common law was capable of filling the gap found in the tribunal’s procedure rules concerning use of a friend if a child or incapacitated adult cannot obtain effective access to justice without one.
Law Society president Joe Egan said: ‘AM’s’ story exposes the immigration tribunal’s systemic failure to safeguard vulnerable people seeking justice.
‘We need clear rules, guidance and a publicly funded panel to support the provision of proper representatives for vulnerable people and those who lack mental capacity in the tribunal, to ensure that every person has a real voice in it.
‘In an area where legal aid has been withdrawn or stripped bare, conscientious solicitors face a real struggle to provide – with little or no funding - the extra levels of service incapacitated litigants in the tribunal require.’
