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AZ (Asylum-‘legacy’ cases) Afghanistan [2013] UKUT 270(IAC)

UPPER TRIBUNAL JUDGE KOPIECZEK

 

 

Between

 

AZ

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Respondent



(i) Where an appellant in an asylum appealhad previously been informed that his case is being considered as a ‘legacy case’ but no decision under the process had been made, a subsequent immigration decision following a rejection by the Secretary of Stateof his asylum claim is not rendered unlawful by reason of the failure to make a decision under the legacy process.

 

(ii) There is no obligation on a Tribunal to adjourn an asylum appeal so as to allow for a decision to be made under the legacy process.

                                               DETERMINATION AND REASONS

 

Introduction

1.           The appellant is a citizen of Afghanistan, born on 1 January 1994. He is said to have arrived in the UK in December 2006 as an unaccompanied minor aged 12. He claimed asylum on 22 January 2007. The application for asylum was refused on 29 April 2009 but he was granted discretionary leave until 1 July 2011.

2.           On 27 June 2011 he applied for further leave to remain. That application was also refused and at the same time a decision was made to remove him under section 47 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), about which more is said below. His appeal, on asylum and human rights grounds, was dismissed by First-tier Tribunal Judge Talbot after a hearing on 6 August 2012. Permission to appeal having been granted, the appeal came before me.

3.           In summary, the appellant's claim was that there was a raid on the family home by the Taliban who wanted to recruit the appellant and his brothers. During the raid his father was killed and his mother was shot. Judge Talbot rejected the appellant's account of those events and did not accept that the appellant had to escape from his home or from Afghanistan.

4.           He was similarly not satisfied that the appellant had given a credible account of having lost contact with his family, or that his mother and siblings have been killed or are missing. He concluded that it was highly likely that the appellant was still in contact with his family. He found that he has family members who would be able to provide him with support on his return and that he would not be at risk for any reason in Afghanistan.

5.           In relation to the Secretary of State’s failure to undertake the ‘tracing’ duty, he concluded that the appellant had not suffered any prejudice. He rejected the argument based on what was said to be the Secretary of State’s failure to give consideration to the appellant's claim under the ‘legacy’ exercise of 2010.

6.          Before me Ms Brown relied on the grounds of appeal, amplified in submissions. She relied on the decisions in KA (Afghanistan) [2012] EWCA Civ 1014 and EU (Afghanistan) [2013] EWCA Civ 32. On the ‘legacy’ point I was referred to the decision in Hakemi [2012] EWHC 1967 (Admin) whereas in response Mr Tarlow relied on Mohammed [2012] EWHC 3091 (Admin). I have considered the appellant's skeleton argument.





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Phone numbers: 

London: 02088677737 & 02037731311
Slough: 01753202228
Reading: 01183215055 & 01183213411 

Mob: 07873329697
Cardiff:  07727255568

Leicester: 0116 326 2777

Fax number: 01895549688

Address: 86A The High Street, Southall UB1 3DB and Cardiff (Claire Road)

E-mail address: info@asherandtomar.co.uk & asherandtomar@aol.co.uk

                
       
                   
                                                SOLICITORS OPEN ON SATURDAYS