SHL v Secretary of State for The Home Department (Tracing Obligation/Trafficking) Afghanistan: UTIAC 16 Jun 2013

UTIAC [1] Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 imposes on the Secretary of State a duty to endeavour to trace the members of a minor asylum applicant’s family as soon as possible following submission of the asylum claim. A failure to discharge this duty may, depending on the facts found, give rise to a breach of the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009, as it may render the decision maker unable to assess the best interests of the child claimant. Where a Tribunal finds a breach of a duty owed under Regulation 6, it is necessary to address the consequences thereof. Such a breach does not per se vitiate the ensuing asylum decision. Rather, it is incumbent on the Tribunal to evaluate its effect and consequences in the fact sensitive context under consideration. The onus remains on the Appellant to establish a proper foundation for the grant of relief.
[2] In the instant case, the Secretary of State failed to discharge its duty under Regulation 6. However the lack of evidence from the Secretary of State concerning the availability of otherwise of familial support to the Appellant in the event of returning to his country of origin neither established nor reinforced any of the grounds upon which the Appellant put forward his case for protection.
[3] There is no right of appeal to the Tribunal under the European Convention on Action Against Trafficking In Human Beings. This Convention, as an unincorporated international treaty, cannot be invoked as a freestanding source of rights, obligations and legal effects and consequences in domestic law.
[4] In any event, in so far as the Secretary of State was subject to a public duty to take the Convention into account, this was clearly done in the present case in making the separate trafficking decision.

McCloskey J, Goldstein UTJ
[2013] UKUT 312 (IAC)
Asylum Seekers (Reception Conditions) Regulations 2005 6(1), Borders, Citizenship and Immigration Act 2009 55
England and Wales


Updated: 17 November 2021; Ref: scu.513573