Court Report: Asylum-seeking children

AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123

The case involved an Afghan child (AM) who was 15 at the date of the initial hearing. He had spent most of his life living in a compound, but fled Afghanistan following the death of his father, after which the Taliban tried to force him to fight for them. He feared returning to Afghanistan because of the Taliban and the possibility of reprisals from the Afghan police. The Home Office refused his asylum claim but granted him temporary permission to stay in the UK (called "Limited leave as an unaccompanied child", or "UASC leave") until he was 17-and-a-half years old.

AM appealed the refusal of his asylum claim to the First Tier Tribunal (FTT) and the evidence submitted included an expert psychological report by Mr RA Sellwood (the Sellwood report), which outlined AM's learning difficulties and the significant problems he had recalling information and answering questions accurately. The report also raised issues about AM's ability to give oral evidence and suggested special arrangements for the court. The FTT refused the appeal, and the judge made very few references to either the Sellwood report or the recommendation for special arrangements.

The judge in the FTT did not find AM to be credible because of his inconsistent answers to questions. Despite being notified of the content of the Sellwood report, the Upper Tribunal agreed with the FTT. The case then came before the Court of Appeal which found that neither the Upper tribunal nor the FTT took sufficient steps to ensure that AM had obtained effective access to justice. Early, careful consideration of the issues should have involved a focus on objective, expert evidence and the vulnerability and age of AM. The judgment outlined the different rules, guidance and practice directions that exist to ensure procedural fairness during judicial hearings but they were not applied properly. It recommended that general principles be considered and set out through good practice guidance by the Tribunal Procedure Committee.

For those working with children claiming asylum it is important to be aware of both the high levels of vulnerability for these children and also the different stages of the asylum process and how they might need to be supported.

For more information, see Seeking Support: A Guide to the Rights and Entitlements of Separated Children at http://www.childrenslegalcentre.com/seeking-support/