Upper Tribunal (Immigration and Asylum Chamber) >> AA (unattended children) Afghanistan CG  UKUT 16 (IAC) (01 February 2012)
Cite as:  UKUT 16 (IAC)
This Country Guidance case finds that:
(1) The evidence before the Tribunal does not alter the position as described in HK and Others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG  UKUT 378 (IAC), namely that when considering the question of whether children are disproportionately affected by the consequences of the armed conflict in Afghanistan, a distinction has to be drawn between children who were living with a family and those who are not. That distinction has been reinforced by the additional material before this Tribunal. Whilst it is recognised that there are some risks to which children who will have the protection of the family are nevertheless subject, in particular the risk of landmines and the risks of being trafficked, they are not of such a level as to lead to the conclusion that all children would qualify for international protection. In arriving at this conclusion, account has been taken of the necessity to have regard to the best interests of children.
(2) However, the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.
Introduction and History of the Case
1. The appellant is a citizen of Afghanistan from Kabul Province, whose date of birth is accepted as being 1 January 1994 and who is therefore now 17 years of age. He arrived in the United Kingdom as an unaccompanied child on 7 May 2009 and sought asylum on the basis that he would be at real risk of being persecuted on return to Kabul as a separated child, and/or by reason of political opinion imputed to him by virtue of his being a son of a man who was an informer for the government, and the brother of a man who was an army commander who had been killed by the Taliban, and that he himself had been among a group who sang an anti-Taliban song at a public gathering on Teacher’s Day, at which the deaths of foreign military personnel were mourned. He attended a screening interview on 13 May 2009 and underwent a substantive interview with regard to his application on 5 October 2009.
2. On 21 October 2009 the respondent refused the application for recognition as a refugee and grant of status, but granted the appellant discretionary leave to remain in the United Kingdom outside the rules until 1 July 2011 in accordance with her policy relating to unaccompanied children, the Home Office Asylum Policy Instruction on Discretionary Leave.
3. The appellant appealed against the decision, and on 29 January 2010 his appeal under section 83 of the Nationality Immigration and Asylum Act 2002 (an ‘up-grade appeal’) came before Immigration Judge Napthine, who dismissed the appeal rejecting the appellant’s claim as lacking credibility.
4. The appellant’s application for permission to appeal against the determination by the immigration judge came before Upper Tribunal Judge Jarvis on 10 March 2010 when she reached the provisional decision that the determination disclosed an error of law; that it should be set aside, and the appeal be referred to the Upper Tribunal for re-decision. On 7 May 2010 Upper Tribunal Judge Jarvis ruled, under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, without a hearing, that the decision of the immigration judge contained an error of law, namely that that judge failed to take into account evidence relating to unaccompanied or separated children, and failed to assess the evidence on the basis that the appellant was a child, and that it should be set aside and re-made by the Upper Tribunal.