“A child is foremost a child before he or she is a refugee”: Court of Appeal provides new guidance to tribunals to ensure children and vulnerable persons have their voices heard in asylum proceedings

The guidance covers core issues such as the assessment of credibility from impaired or vulnerable witnesses, their participation in tribunal hearings, the need to ensure procedural fairness and the role of the common law in supplementing rules, the tribunal’s power to appoint litigation friends and the urgent need to define the role and authority given to litigation friends. 

The lead judgment was given by the Senior President of Tribunals, Sir Ernest Ryder, with the overriding objective being ensuring the right of access to the tribunal and the ability to participate effectively in proceedings and that the claims for asylum of children and other vulnerable  adults were fairly determined.

AM was a 15-year-old boy fleeing persecution in Afghanistan from the Taliban who had sought to forcibly recruit him. AM suffered from moderate to severe learning difficulties confirmed by the report of a Chartered Educational Psychologist, before the First-Tier Tribunal (FTT), setting out that AM would experience significant difficulties accurately recalling questions and answers during interviews and court hearings, which would increase his vulnerability on return to Afghanistan where his ability to assess and avoid risk would be impaired.

The FTT was found to have failed inter alia to have taken proper account of AM’s age, his vulnerability and learning difficulties by rejecting his account of past events based on alleged inconsistency and implausibility, and failing to have proper regard to the psychologists report and the objective and country expert evidence when undertaking that assessment.

Detailed submissions were made by the Appellant and Lord Chancellor, intervening in the appeal on the guidance required to avoid a repeat of the fundamental errors in the determination of AM’s appeal.

The Court of Appeal recognised the core principle that “a child is foremost a child before he or she is a refugee” [35] and has outlined the importance of establishing ground rules that should be adopted through case management at appeal hearings to ensure procedural fairness.

There was a consensus that the critical errors of approach made by the FTT and the Upper Tribunal in refusing permission to appeal arose from the focus on credibility and the failure to properly have regard to the objective evidence and to give it priority over the ability of the appellant to provide oral testimony given his vulnerability [22]. This was an important point emphasised and affirmed by the Court of Appeal. The tribunals should closely consider whether oral evidence is necessary at all and whether such a requirement may militate against a fair hearing, where objective and expert evidence is available to assist in assessments of past events and future risk [18(b), 21(d), 23, 31(b) and (c), 32]. Even where there are said to be “clear” discrepancies in the oral evidence, Tribunals must nevertheless consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity.

Important core principles in asylum determination were also restated and underlie the judgment, including:

• Assessments of personal credibility were not a substitute for application of the criteria for refugee status, which had to be holistically assessed
• The conclusions of medical experts findings had to be treated as part of the holistic assessment
• Medical evidence could be critical in explaining why an account might be incoherent or inconsistent
• Credibility had to be judged in the context of the known objective circumstances and practices of the relevant state
• The highest standards of procedural fairness were required (paras 21-22)

Those principles were reflected in the procedure rules governing the tribunals: see inter alia Rule 2 (tribunals must ensure an appellant's full participation in proceedings), Rule 4 (case management), Rule 10 (representation), and Rule 14 (evidence and submissions), all of which make clear that there is flexibility and a wide range of specialist expertise which a tribunal should utilise to deal with cases fairly and justly.

The Court of Appeal accepted the Appellant’s submission that there are at least five documents that are particularly relevant to the determination of claims made by children and young people and to which reference can be made for further guidance [35]:

1. ‘The UNHCR Guidelines’ on International Protection: Child Asylum Claims under Articles 1A(2) and 1(F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees
2. Article 4(3) of Directive 2004/83/EC [the Qualification Directive]
3. Every Child Matters – Change for Children (Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, November 2009)
4. Paragraphs 350 to 395 of the Immigration Rules and the Secretary of State’s Asylum Policy Guidance (Processing children’s asylum claims, 12 July 2016)
5. Equal Treatment Benchbook, Ch 5, Judicial College, 2015

Practice Direction and Guidance Note - The "First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses" Practice Direction and the Presidential Guidance Note No.2 of 2010 had both to be followed. Failure to do so would be likely to amount to a material error of law [30]. That is because the Guidance requires:

1. Early identification of vulnerability
2. An incapacitated or vulnerable person should only need to give oral evidence in limited circumstances
3. In such circumstances, the person's welfare had to be protected before and during the hearing
4. In assessing the evidence, special consideration had to be given to the person's personal circumstances

The Court of Appeal also ruled that tribunals have the power to appoint a litigation friend where justice requires it, upholding the judgment of Picken J in R (C) v First-tier Tribunal [2016] EWHC 707. The Court concluded that the common law was capable of filling the lacuna found in the tribunal’s express procedure rules concerning the provision and use of a litigation friend where a child or incapacitated adult could not obtain effective access to justice without one: Wiseman v Borneman [1971] AC 297, Cooper v Wandsworth Board of Works (1863) 14 CBNS 108, BPP Holdings v The Commissioners for Her Majesty’s Revenue and Customs [2016] EWCA Civ 121 applied [38-46]. The watchwords governing appointment of such litigation friend were effective access to justice and fairness. In the context of child and vulnerable asylum seekers this emphasis is significant, welcome and long overdue.

Underhill LJ emphasised the need for detailed rules given the power accorded to litigation friends and endorses the Senior President’s request for the decision to be considered by the tribunal’s Procedure Committee. It is likely that the Rules Committee will consult on this matter.

The experience of representing children and vulnerable adults in immigration and asylum appeals will be vital in identifying what is needed to ensure effective access to justice. Whilst detailed guidance is necessary, one-size-fits-all is not likely to be the best outcome and a flexibility is required to take account of the very many different ways in which children and vulnerable adults are currently disadvantaged in the system.

Stephanie Harrison QC and Raza Halim represented AM in the Court of Appeal, instructed by Kate Jessop of Brighton Housing Trust, Immigration Legal Service. Stephanie and Raza are both members of the immigration and public law teams at Garden Court Chambers.

For more information, the full judgment is available: AM (Afghanistan) v Secretary of State for the Home Department & Lord Chancellor [2017] EWCA Civ 1123.