R (on the application of ABC (A Minor) (Afghanistan)) v Secretary of State for The Home Department

Facts

The claimant 16-year-old asylum seeker (X) applied for judicial review of the defendant secretary of state's refusal to grant him asylum and humanitarian protection.

X was from Afghanistan and had arrived in the United Kingdom when he was 14. He claimed asylum on the basis of a fear of persecution from his family after he had unintentionally killed his half-brother during an altercation. The secretary of state refused X's asylum claim. She also excluded his humanitarian claim under the Immigration Rules para.339D on the ground that he had committed a serious crime, although she did accept that the killing had been accidental. The secretary of state later gave supplemental reasons for her decision in which she set out the law relating to self-defence and provocation. X was, however, granted discretionary leave to remain in the UK, reviewable every six months. In making her decisions, the secretary of state purported to apply the Borders, Citizenship and Immigration Act 2009 s.55 and stated that she had struck the right balance between X's welfare and the policy goal of ensuring that the UK did not provide a safe haven for serious criminals.

X argued that the secretary of state was wrong to exclude him from (1) humanitarian protection on the grounds that he had committed a serious crime; (2) discretionary leave without review having regard to s.55 of the 2009 Act and the decision in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 A.C. 166.

Held

(1) Under para.339D of the Immigration Rules, the secretary of state was permitted to exclude any individual from asylum and humanitarian protection when there were serious grounds for believing that the person had committed a serious crime abroad. She had to look at each individual case as a whole, viewing a raft of case specific factors. The starting point had to be a correct analysis of UK law and the law in the country where the crime was said to have occurred. The individual factual matrix of the alleged crime had to be examined, and had to include any points advanced as a potential defence. The age and circumstances of the alleged offender were also important. The likely punishment was also to be considered. Further, when a child or young person was placed within the frame of para.339D it was vital that s.55 was properly considered. What might be right for an adult was not always replicated for a child or young person. However, the child's welfare did not override everything else; in the context of asylum, immigration and nationality, consideration of a child's welfare had to be given a pivotal position, but it was not the paramount concern of the court. The minister had to keep a sense of proportion and balance about the case. When making her initial decision to invoke para.339D in the instant case, the secretary of state had simply ignored the broad tapestry of factors which had to be examined. As she had accepted that the killing was unintentional, it had not been open to her to conclude that there was a serious belief that a serious crime had been committed; a serious crime plainly demanded a high level of culpability. Furthermore, in her supplemental reasons, the secretary of state had fatally misrepresented the relevant provisions of English criminal law and the issue of X's welfare did not even appear to have been placed in the equation. Accordingly, the "serious crime" decision could not stand (see paras 25, 28, 32-33, 38, 41, 44, 48 of judgment). (2) The secretary of state was obliged under s.55 to place the welfare of a young person well to the fore of decision making. She had to place it into the wide tapestry she was required to consider in relation to the serious crime decision and into other aspects of her asylum and immigration decision making. When the young person's welfare was considered, it was not to be regarded as the paramount consideration of the minister, or of the court, but as a high ranking matter to be considered with other factors; it should only be displaced, or rendered of lesser importance, if there were very strong countervailing factors, ZH applied. In the instant case, the secretary of state had not demonstrably placed X's welfare in a pivotal position when deciding the rolling six-month reviews. It could not be seen how the welfare of a 16-year-old youth was best promoted by forcing him to anxiously face the prospect of removal from the UK every six months. Accordingly, the decision in relation to discretionary leave was unlawful (paras 50, 52, 56, 58, 62).

Application granted

Comment

The Secretary of State for the Home Department had erred in refusing humanitarian protection to a 16-year-old asylum seeker on the basis that there were serious reasons for believing that he had committed a serious crime abroad. She had ignored the broad tapestry of factors which had to be examined, including the welfare of the child under the Borders, Citizenship and Immigration Act 2009 s.55.