29.01.2014 – Luqmani Thompson & Partners recently acted for the appellant in AA (Afghanistan) v The Secretary of State for the Home Department [2013] EWCA Civ 1625 (11 December 2013), a recent case in the Court of Appeal.

The issue in this case was whether the failure on the part of the Home Office to comply with its duty to trace the family members of an Unaccompanied Asylum Seeking Child should lead to a grant of residence for that child where it was clear that the duty had been breached.

Although the Court of Appeal has given judgement in a number of similar cases, one issue of difference in the present appeal was the argument that the appellant was put at a disadvantage precisely because of the failure to have carried out the duty: AA claimed that his father had been killed and that, had enquiries been made to attempt to trace the family, his account would have been corroborated.

Although the court accepted that the duty arises as soon as an individual submits an application for asylum and that there had been a breach of that duty initially, the court was not prepared to accept that the consequences of that breach should lead to recognition as a refugee or that the breach should mean that the claim should be accepted as credible by default.

The court did recognise that there were errors in the way in which the matter was approached by the First Tier Tribunal and the Upper Tribunal but dismissed the appeal.

An application for permission to appeal is yet to be decided by the Court of Appeal and is expected at some point in February 2014. In the event that permission is not granted, however, funding has been approved by the Legal Aid Agency to pursue an application for permission to appeal to the Supreme Court on the tracing issue.