How children become failed asylum-seekers: Reflections on the experiences of young unaccompanied asylum-seekers in KKent from 2006-13, and how 'corrective remedies' have failed them

In 2012 the Court of Appeal acknowledged, in the case of KA (Afghanistan) [2012] EWCA Civ 1014, that the Home Office had systematically failed to endeavour to trace the family members of young unaccompanied asylum seekers. For a short period it appeared that there might be an opportunity for a ‘corrective remedy’ for some of these young people.

This paper summarises our detailed analysis of the cases of 20 refused Afghan asylum seekers assisted by Kent Law Clinic, and critically examines the legal concept of 'corrective remedy' in the light of evidence from our cases and post-KA court and tribunal decisions. Our work focused first on whether any of our clients could make fresh claims based on KA, and then reflected on the whole asylum process from arrival to exhaustion of all appeal rights, as revealed in these cases. Our evidence supports a wider concern amongst both practitioners and academics that specific common factors contribute towards children eventually becoming ‘failed asylum seekers’. Despite detailed published guidance, quality oversight, critical inspection reports and regulation of immigration advice, all parties formally involved with the young people, including the Home Office , Social Services, legal representatives and the tribunal, were variously responsible for legal errors, debatable choice of legal strategy and delays that arguably damaged the young people’s claims.

We then critically review the courts’ development of the ‘corrective remedy’ principle since KA in relation to young people’s asylum claims. We ask whether in the light of these developments the courts are ever likely to provide a ‘sanction’ against errors of the Secretary of State, and consider what alternative strategies might assist young asylum-seekers.