25 December 2013

Three Observations From AA (Afghanistan)

In AA (Afghanistan) v SSHD, the Secretary of State refused a child from Afghanistan's asylum application (at [2]). She omitted, however, properly to engage with the relevant legal provisions, which impose a 'tracing duty' when dealing with 'unaccompanied asylum-seeking children' to facilitate their return to their families (at [3], [6]–[15]). To appeal, AA argued the SSHD's omission effectively rendered the refusal powerless. Underhill LJ carefully analysed the appellant's arguments, held the SSHD breached her duty, but ultimately dismissed AA's appeal. The case is interesting for three main reasons, examined below.

Court of Appeal (Civil Division)

[2013] EWCA Civ 1625

11 December 2013

AA (Afghanistan) = Appellant
Secretary of State for the Home Department = Respondent

Lords Justices McFarlane, Beatson, and Underhill

1. The First Bauble

One, Underhill LJ traces through and consolidates several asylum-law principles (at [6]–[15], [30]–[45]). Decision makers will surely use this case as guidance in the future. Those decision-makers include the SSHD, the UK Border Agency, and NGOs.

2. The Second Bauble

Two, Underhill LJ shows the force of narrative techniques in legal arguments. He begins with an evocative tale about a child who seeks refuge from Taliban forces who demand he become a suicide bomber to avenge his father's death (at [1]). After this, he mentions the child is not educated, yet the story continues as if AA--the child--presents an eloquent argument.

Notwithstanding the appeal is ultimately flawed, its premises are intelligent and obviously devised by the appellant's counsel. Underhill LJ therefore demonstrates that one may portray case-histories as dazzling courtroom dramas. All it takes is to continue to endorse the fiction that even non-educated boys from Afghan hills are competent to defend themselves under the precept of equality under the law.

3. The Third Bauble

Three, this case reiterates an important two-sided warning.
  1. It is acceptable and good practice to concede some of an opposition's premises because courts may nonetheless reject their overall inferences (at [42]–[43]).
  2. One must ensure that all premises lead to definite conclusions, or that only one (preferably favourable) conclusion follows from multiple propositions.
To clarify this last point, an argument may be more persuasive if it demonstrates that several, short, linked arguments lead separately to the same conclusion than to structure a series of premises which must all be true for the conclusion to follow.

Created: 20 December 2013. Version 1.0.

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