B v Secretary of State for the Home Department

LORD JUSTICE LATHAM: This is an appeal to this court by permission of the Asylum and Immigration Tribunal from a decision of the Tribunal, a panel of two immigration judges, promulgated on 27 October 2005, whereby it dismissed this appellant’s appeal against the Secretary of State’s decision refusing to grant him asylum and requiring his return to Afghanistan, both in relation to the asylum grounds upon which he relied and the human rights grounds upon which he relied.

The appellant is an Afghan national, born on 12 March 1983. The family left Afghanistan in 1994 and entered a refugee camp. In 1995 or thereabouts, according to the appellant, his father began working with the Taliban and was appointed a senior commander. The family then returned to Afghanistan leaving the appellant in Pakistan to complete his studies in 1996. The appellant returned to Afghanistan in 1998. By that time, according to the appellant, his father had an official appointment within the Taliban regime as chief of the telecommunications directorate, and had become the commander of a Taliban troop of soldiers.

In the account he subsequently gave on his entry to this country, which was maintained throughout the subsequent investigation of his claim to asylum, he asserted that his father fought in the Northern area of Afghanistan against, in particular, troops under the command of a General Fahim and a General Maroof. When the Taliban regime was overthrown in 2001, General Fahim became for a time the defence minister. The position at that stage, according to the appellant, was that his father remained living in the family home outside of Kabul but kept a relatively low profile until some time not long before August 2004 when he became concerned for his safety and would keep hidden during the day either by walking in the hills, or otherwise, and only returning to his home at night.

The appellant’s account was that on 5 August 2004, General Maroof came to the appellant’s home with ten soldiers and arrested both the appellant’s father and his brother. In the home at the time, according to the appellant, were photographs which showed him carrying arms and also showed him in the company of other Taliban commanders as well as his father. Those photographs were taken by General Maroof. As a result the authorities, in particular General Maroof, became interested in him, and came searching for him at his place of work, about which he was informed by his employer. He was not at that stage seen by any of those seeking him. He went into hiding. He had been living with his employer from the time that his father had been arrested until 10 August. Once General Maroof had come searching for him, his employer was not willing to continue to provide him with shelter and he then went and stayed with a relative in Kabul, although it was in the Tajik area of Kabul, that is the area of Kabul mainly inhabited by those who were the enemies of the Taliban, who were mainly Pathans.

He subsequently learnt that his father’s body, together with his brother’s body, had been found by an uncle of his half-brother on 23 August 2004 at a hospital in Kabul. They showed signs, according to his information, of being tortured. The bodies were taken by his uncle to the police who refused to take any interest in the matter, asserting that the two were terrorists. The uncle made arrangements eventually for the burial of the bodies in Khandahar.

On receiving that information, the appellant left for Khandahar and remained in Khandahar until he commenced his journey to this country on 7 October 2004, going first to Kabul and then eventually to this country via Peshawar. His flight had been stimulated by the fact that, accordingly to him, his photograph had appeared in a newspaper which had national circulation indicating that he was wanted by the authorities. The basis of his claim to asylum, which he made virtually immediately on arrival in this country, was that he feared that he would suffer the same fate as his father and his brother. The newspaper, he said, made it clear that he was wanted and the consequences were, in his view, that he was wanted for the same reasons that they were and accordingly, he had a well-found fear of suffering the same fate were he to be returned.

The Secretary of State refused his application for asylum, and he appealed. The adjudicator who heard the appeal in the first instance disbelieved his account and dismissed the appeal. One of the pieces of evidence before the adjudicator was what was said to be a copy of the relevant part of the newspaper which had stimulated his leaving Afghanistan; the adjudicator stated that because she had not found the appellant credible in other respects, it followed that the newspaper could not be relied upon.

An application for permission to appeal was successful on the basis that the adjudicator had erred in approaching the newspaper on that basis, and it was in those circumstances that the matter eventually came, under the transitional provisions, for re-determination before the Tribunal with whose decision we are concerned.

This Tribunal also disbelieved the appellant. It considered in some detail the account which he had given of his reasons for his fear and the history of events, in particular in 2004. In the first instance, it indicated that it did not accept one fundamental aspect of the appellant’s account, which was that the interest of the authorities in his father was because they knew that he was a commander who had fought against General Fahim, in particular, during the civil war. The reason that the Tribunal gave was that the appellant had indicated in his evidence that his father did not talk about his activities when he was at home. Under those circumstances, it doubted that the appellant could ever have become aware of any details of his father’s activities and accordingly, considered that his account that he knew that General Fahim had an interest in his father, for the reason that I have just referred to, was one which they could not accept.

The Tribunal further considered that as far as his father’s position was concerned it was unlikely, even though it was accepted by the Secretary of State that he had been a Taliban commander, that if he was well-known to the extent that the appellant asserted, and was of interest to the authorities, he could have lived safely and without molestation in the Kabul area for two and a half years, as was the case on the appellant’s own account, between 2001 and 2004.

The position was made the more difficult for the appellant’s account of matters by the fact that when he was asked to explain how it was that although General Maroof and those with him were able to arrest his father and brother on the day in question, they had not arrested him. For his account was that between the time of his father’s learning that the authorities may be interested in commanders such as him and his arrest, he would spend the days away from home and the nights at home. The appellant’s own account of his movements during the relevant period was that he was working in a tailor’s shop in Kabul during the day and was returning home at night. In those circumstances, the Tribunal considered that if the account that he gave was correct, then the likelihood would have been that he would have been present at the home at the time of the visit of the soldiers.

The Tribunal was also unimpressed by the details that the appellant gave surrounding the time of his father’s arrest on his account. He had been told by neighbours who came to the tailor’s shop. His first account was that he thereafter went into hiding in the sense that he did not return home but stayed living with the tailor. In cross-examination, however, before the Tribunal he said that he had in fact gone home in order to find out whether the news that had been brought to him was true. That again was evidence which caused the Tribunal to doubt the account that he had given.

The evidence thereafter was that he worked at the tailor’s shop for some days until 10 August, when it was said that on two occasions General Maroof or soldiers acting for him came to seek out the appellant himself. The Tribunal considered that once again it was, as it put it, a coincidence too far that on both occasions that General Maroof and those with him came searching for him at the tailor’s shop, he happened not to be in the tailor’s shop at the time, either because he was out shopping or because he had gone to the mosque.

It was essentially for the reasons that I have set out that the Tribunal did not consider that the appellant’s account was credible. However, Mr Lewis, on behalf of the appellant, submits that the concerns of the Tribunal in the respects to which I have referred did not take into account either properly or at all the fact that, leaving aside for the moment that the accounts that he had given had been consistent throughout the time that he had arrived in this country, he had corroboration in two significant respects. Firstly, although for obvious reasons the photographs that had been, he said, taken from the home on 5 August, were not available for production, one justification for disbelieving him given by the Secretary of State had been that in the Taliban regime photographs did not exist in what might be called Taliban households. He was able to produce before the Tribunal a series of photographs which, although they did not show the appellant in any armed guise, did show him with Afghans and did show him with Afghans at a time he submitted which was relevant, namely during the Taliban time.

As far as that is concerned, it is noticeable that one of the photographs is a photograph which includes his mother; and the question which the Tribunal certainly was concerned about was how it came about that if these photographs had been produced during the Taliban time, there would have been a photograph of his mother, a woman, which was something which was even more of a forbidden form of photograph than ordinary photographs.

The second piece of corroboration which he had was the copy of the newspaper article; the original, although having been placed before the original adjudicator, apparently had been misplaced. But the copy, it is said, clearly showed an article together with a photograph of the appellant which indicated that the appellant’s father had in fact been arrested and detained and that his son was wanted for interrogation. The Tribunal was concerned as to the authenticity of this particular newspaper article and did not consider that in itself, it provided sufficient justification for concluding that the appellant’s account was credible. It was entitled to take that view.

When asked by the court as to the error of law upon which he relied in support of his client’s appeal, Mr Lewis indicated that the error of law essentially was that the Tribunal had not given adequate reasons for rejecting the account of the appellant, bearing in mind in particular those elements of corroboration to which I have referred. It seems to me that that is an inadequate basis in itself for an assertion that a decision of a Tribunal such as this Tribunal has erred in law. It may be that inadequate reasoning can in some circumstances undermine the validity of a decision. Certainly, if no reasons are given, that is a well-known basis upon which an appellate court can interfere, but where reasons have been given, it seems to me that the essential question that the court has to answer is whether the decision is one to which no Tribunal could sensibly have come.

The reasons that a Tribunal gives may well provide a good guide to whether or not this was a decision to which the Tribunal could properly have come and to that extent, inadequate reasons may be a guide but they are only a guide to the ultimate question which, in my judgment, is whether or not the decision is one which the Tribunal was entitled to reach on the evidence which was before it.

Having considered the reasoning of this Tribunal with care, it seems to me that the reasons may well not be well expressed, but they are not reasons which justify the conclusion that this was a perverse – which is essentially what has to be established – decision. It would only be in those circumstances that this court would be entitled to interfere with the decision of the Tribunal, which Parliament has entrusted with the fact-finding exercise which is not the function with which we are concerned. There is no issue of law before us which could properly found the basis of an appeal.

It is accordingly, in my judgment, a case where considered properly there is no error of law discernible in the decision. The appeal has been brought before us with leave of a senior immigration judge, who considered that there were grounds upon which this court might interfere. There is no proper analysis of precisely what legal basis there was in her mind for the conclusion that she reached. She asserts that the Tribunal failed to have regard to all the relevant evidence and to identify or make all the necessary relevant findings of fact of law, without identifying what that evidence or those findings are thought by her to have been. These are all artificial complaints of no substance, raising no issues of law.

I would dismiss this appeal.

LORD JUSTICE CARNWATH: I agree. I would add one comment. This case has come to us under the new procedure applying to the Asylum and Immigration Tribunal, whereby a case which has been the subject of previous consideration has a route of appeal direct to this court, with permission, rather than going through the High Court. It is clear that Parliament, in establishing the new system, intended to get away from the former system of two-stage appeal while retaining the provision for the courts to exercise their traditional role as the final arbiter on issues of law and fairness of procedure. It was not intended to substitute a new form of two stage procedure with the Court of Appeal taking the role of the old IAT.

In Akaeke v SSHD [2005] EWCA Civ 947, this court emphasised the importance of limiting the supervising role of this court to true points of law and not allowing it to become a stage for a further review of the facts. That statement was cited with approval by the court in R(Iran) & Ors v SSHD [2005] EWCA Civ 982 at paragraph 93.

Like my Lord, in this case I have some concern that permission to appeal was granted by the AIT. In the first ground it was suggested that there were factual errors which might amount to an error of law within the principles set out in E&R v SSHD [2004] EWCA Civ 49. With respect to the senior immigration judge, I find it impossible to see how E&R was material. That was dealing with a case where a decision was made as a result of misunderstanding or ignorance of an established and relevant fact. There is nothing of that kind before us. Indeed, Mr Lewis has not really attempted to argue the case on that basis. As my Lord has said, the other grounds on which permission was granted were stated in very general terms.

I am conscious, of course, that at the time that decision was made, the AIT was under great pressure to clear a large backlog. However, I think it is important in the future that, before permission is granted by the AIT to appeal, care is taken to identify with clarity the issues of law which are thought to justify the attention of this court.

LORD JUSTICE HUGHES: I also agree and for the reasons given by both my Lords, Lord Justice Latham and Lord Justice Carnwath.