The case of KA Afghanistan was a positive piece of legal reasoning by the Judges of the Court of Appeal in England in favour of unaccompanied minors.
It brought the Secretary of State for the Home Department (SSHD) to account for a failure to apply Home Office policy to those under the age of 18 who sought asylum here. The policy was one of a duty to trace family members of those who were under the age or 18 claiming asylum in the UK as this can be a powerful indicator of the well-foundedness of a claim.
The case concerns 8 appellants from Afghanistan who arrived as unaccompanied minors. Their asylum cases were refused but they were given leave to remain in the UK until they reached the age of 17 ½.
The appellants then attempted to make applications for further leave to remain in the UK before the expiry of their visas but these were refused and then further refused at Tribunal. The appellants further appealed to the Upper Tribunal. They had reached the age of 18 by this time and the Upper Tribunal assessed their risk on return as 'adults'. Their claims failed.
The matter reached the Court of Appeal where it was discussed whether or not the case of Ravichandran was fatal to their claims. Ravichandran states that claims are to be decided on the facts at the time of the hearing.
The Judges also discussed the case of Rashid where it was held by the Court of Appeal that given there was such unfairness by the failure to implement a policy by the SSHD, the appellant should be granted indefinite leave to remain in the UK as a remedy.
In Rashid it was found thatRavichandrandid not conflict with position taken by the Judges as there might be a 'need to remedy injustice by past illegality'.
The Court of Appeal held in KA that there was a 'systematic' breach of the SSHD's duty to trace family members. The duty was not discharge by simply referring the appellants to the Red Cross and that there was no 'bright line' (reaching the age of 18) when assessing risk on return to the appellants' home country.
As a result of this case, it has created avenues for many of our clients who have been stuck in no man's land after reaching the age of 18. Their cases for further leave to remain had been refused and also now that they were over the age of 18 there was no reason why they could not return to their home countries. We have assisted many clients to submit fresh claims with a view to regularising their status.
There has been a further development in this area of law. The case of EU (Afghanistan) has limited disappointedly limited the scope of KA and you now need to demonstrate that there is a link between the SSHD's duty to trace and an appellant's need for protection in the UK. Essentially, EU can be seen as a very negative decision for appellants in situation described above.
However, as with every cloud there is a silver lining and there are ways to distinguish EU from KA and still submit an application to the UKBA on the basis of KA or argue along the same times at Tribunal with a view to securing a successful outcome.
If you are in a similar situation then contact a member of our Immigration Team to speak to a solicitor for further advice and guidance.