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“All the business of war, and indeed all the business of life, is to endeavour to find out what you don’t know from what you do.” – Sir Arthur Wellesley, Duke of Wellington

"My dear. A lack of compassion can be as vulgar as an excess of tears. "
- Violet in Downton Abbey

"By perseverance the snail reached the ark. "
- Charles Spurgeon

"Not all those who wander are lost."

31 januari 2013

UK uitspraak over (AMA's) AMV-ers uit Afghanistan / plicht van staat om onderzoek te doen naar familie. Maar leidt het tot iets?


Rechter verwijst naar artikel 19.3 van de Reception Directive. Dat is RICHTLIJN 2003/9/EG VAN DE RAAD van 27 januari 2003 tot vaststelling van minimumnormen voor de opvang van asielzoekers in de lidstaten.

3. In het belang van de niet-begeleide minderjarige trachten
de lidstaten de gezinsleden van niet-begeleide minderjarigen zo
spoedig mogelijkop te sporen. In gevallen waarin gevaar
bestaat voor het leven of de lichamelijke integriteit van de
minderjarige of zijn naaste familieleden, met name indien zij in
het land van herkomst zijn achtergebleven, moet bij het verzamelen,
verwerken en verspreiden van gegevens over deze
personen vertrouwelijkheid worden gewaarborgd, zodat hun
veiligheid niet in gevaar wordt gebracht.

Hij is niet echt een fan van verblijf geven aan mensen die geen bescherming nodig hebben. Een kinderpardon zou niet aan hem besteed zijn.

Wellicht ter inspiratie. Hij verwijst ook naar de zaak Rashid.

Doe Nederland actief onderzoek naar familie in het land van herkomst zoals in Engeland duidelijk wel wordt gedaan (lees alle individuele zaken die in deze uitspraak worden meegenomen en allen worden afgewezen.. Wat ik citeer is het algemene stuk)

"At paragraph 25 of the judgment, Maurice Kay LJ stated:

There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage.

I have to say that, like the Court of Appeal in S, I have great difficulties with the judgments in Rashid. In cases that are concerned with claims for asylum, the purpose of the grant of leave to remain is to grant protection to someone who would be at risk, or whose Convention rights would be infringed, if he or she was returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the Article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such as a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as "the protective principle", but this is a misnomer: the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the Court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the Court's displeasure at her conduct, or as a sanction for her misconduct. I agree with the short judgment of Lightman J in S. He said:

… I have the gravest difficulty seeing how the fact that the challenged administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power giving rise to conspicuous unfairness, can extend to the remedies available to the courts.

Nonetheless, the Secretary of State's breach of duty may be relevant to her or the Tribunal's decisions. Her failure may be relevant to the assessment of risk on return. The lack of evidence from the Secretary of State as to the availability or otherwise of familial support should be taken into account. In addition, there are cases in which the consequences of her breach of duty are relevant. SL (Vietnam) [2010] EWCA Civ 225 [2010] INLR 651 was such a case. The appellant should have been granted leave to remain under the then minors policy. If he had been, he would have been able to work lawfully. Because of his precarious immigration status, he could not work lawfully, and he resorted to the large-scale cultivation of cannabis. The circumstances in which he had done so were relevant to the assessment of the gravity of his drug offending, and should have been taken into account when deciding whether his deportation should have been upheld. Similarly, the failure to endeavour to trace may result in a failed asylum seeker, who may in consequence lose contact with his family, putting down roots here and establishing a valid Article 8 claim. The necessity for such a causative link was stated in paragraph 25 of the Judgment where Maurice Kay LJ gave as the reason for a claimant failing to avail himself of "the protective and corrective principle" that there was "no causative link between the Secretary of State's breach of duty and [the appellant's] claim to protection".

I would also add a comment to what was said by this Court in KA about the line between minority and adulthood. One should, in addition, take into account what I conceive to be the reason for the Secretary of State's policy to grant limited leave to remain to children, irrespective of his or her asylum claim. It would simply be inhumane to return an unaccompanied young child, specifically in cases such as the present to Afghanistan, at least where there will be no family to take care of him or her on arrival in Kabul. But that rationale applies with less and less force with increasing age.

In this connection, it is necessary to bear in mind that the birthday that has been ascribed to a claimant is often arbitrary. For example, a claimant contending to have been aged 16 in June 2012, but who is unable to give his date of birth, may as a formality have been given the date of birth of 1 January 1996. If his age is disputed, and he is assessed as aged 18, he may be recorded as having been born on 1 January 1994. Thus, the Secretary of State's decision letter dated 28 January 2010 in relation to EU records his date of birth as "01 January 1995 (disputed) 01 January 1993 (assessed)". I do not think that anyone believed that he was born on 1 January of either year. That date was given as a formality to reflect his age as asserted and assessed. In such a case, the origin of the precise date of birth is a further reason why the achievement of adulthood cannot of itself necessarily change the assessment of risk on return.

Lastly, I should mention a point made by the Secretary of State which I consider to have substance. Unaccompanied children who arrive in this country from Afghanistan have done so as a result of someone, presumably their families, paying for their fare and/or for a so-called agent to arrange their journey to this country. The costs incurred by the family will have been considerable, relative to the wealth of the average Afghan family. The motivation for their incurring that cost may be that their child faces risk if he or she remains with them in Afghanistan, or it may simply be that they believe that their child will have a better life in this country. Either way, they are unlikely to be happy to cooperate with an agent of the Secretary of State for the return of their child to Afghanistan, which would mean the waste of their investment in his or her journey here.

I turn to consider the facts of the individual cases before the Court. " 

 Dit is de zaak Rashid waarnaar verwezen wordt

Voor Nederlandse uitspraken: Met dank aan: Mariette Timmer ‏@mariettetimmer
 ABRS 6/6/12 201104976/1/V2; ABRS 18/7/12 201109932/1 /V2

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