SH (Afghanistan) v Secretary of State for the Home Department

The history of Afghanistan in recent years has been (as everybody knows) one of dramatic changes of regime, dramatic shifts of power and within those changes, shifts of allegiance between factions, members of which are ready to kill each other at the drop of a hat.

This applicant has been represented today by Miss Veloso, who has tracked that recent political history. Immigration Judge Salmon, who heard the case at first instance, accepted the account given by the applicant of his switches of allegiance, switches which will have been regarded by opposing factions as those of a turncoat, and of a fatal shooting incident. However, the Immigration Judge did not accept the evidence that two of the friends of the applicant who had been involved in the shooting incident had been detained, or that members of the Northern Alliance had consequently come looking for the applicant.

In the light of the entirety of the case, the Immigration Judge concluded that the applicant would not be at risk as a consequence of his former association with Hezb-E-Islami. He so concluded on the basis of a 2005 CIPU report, which suggested that such risk was limited to a segment for the supporters of that organisation which did not include the applicant. There was, however, in the bundle of papers before the tribunal a case, RS (Hezbe Islami expert evidence) Afghanistan[2004] UKIAT 278, together with the report of Dr Lau, which came to a contrary conclusion -- a conclusion which if adopted in the present case might very well have resulted in a finding that to return the applicant to Afghanistan would place him at risk of assassination.

RS, however, was not referred to by the advocate appearing for the applicant at the hearing. RS is not a country guidance case, probably because it was a case that resulted in remission, but it is a case which is capable of bearing comparable weight and has been treated subsequently to his decision as a factual precedent.

Although Immigration Judge Mensah ordered reconsideration, Senior Immigration Judge Waumsley on a first stage reconsideration concluded that there had been no error of law warranting any further reconsideration. It is not, he held, an error of law in itself for an Immigration Judge to fail to take into account a reported AIT decision which is neither a starred determination nor a country guidance case and to which his or her attention has not been specifically directed.

Miss Veloso submits as part of her case that the doctrine of Regina v The Secretary of State for the Home Department, Ex parte Robinson[1997] EWCA Civ 3090 that a point may be so obvious that the AIT must take it take applies here. I am not convinced that in its naked form the Robinson doctrine does apply here, but for reasons to which I now turn it seems to me that Robinson itself may merit reconsideration by this court, in order to see whether the principle might be appropriately enlarged.

What this case does, it seems to me, throw up in point of principle is not only the obligations of counsel appearing for an appellant before an immigration judge and the consequences of an error either of judgment or of concentration on counsel’s part, but also the obligations of the Home Office Presenting Officer and of the tribunal itself in a situation in which (as is frequently the case with asylum) the issue is potentially one of life and death.

As to the obligations of counsel and the consequences of a failure to fulfil counsel’s duties (assuming that to be the case here), there has been some consideration of the question in relation to solicitors’ duties in the case of FP (Iran) v The Secretary of State for the Home Department[2007] EWCA Civ13 at paragraphs 38 to 46. At 46, giving the first judgment, I held:

So far as the Home Office Presenting Officer’s obligations are concerned, it seems to me that there is a real question of principle here. Where counsel appears for the Home Office (and I have no doubt that what I am saying applies to solicitors as well), an independent obligation to justice may very well call for the advocate to draw the tribunal’s attention to matter helpful to the appellant, to which by oversight or worse the appellant or the appellant’s advocate has failed to draw attention. My Lord has mentioned in the course of argument that there may be authority on this. If not, then whether there are analogous obligations resting upon a Home Office Presenting Officer is something which I think needs consideration.

So far as the tribunal itself is concerned, the Robinson doctrine may arguably require expansion in the light of what was said by Buxton LJ at paragraph 17 of his judgment in BR (Iran) v The Secretary of State for the Home Department[2007] EWCA Civ 18:

For these short reasons it seems to me that this is a proper case for the grant of permission. It raises not only issues of principle but has in my view, in the light of those issues of principle, a realistic prospect of success.

I agree. I simply add the observation, amplifying what my Lord has said, that the tribunal decision in RS (although not strictly a country guidance case) was afforded considerable respect by the Administrative Court in the case of The Queen on the Application of Ahadyar v The Secretary of State for the Home Department[2007] EWHC 668 (Admin), and was the basis for the success of that application for judicial review of a refusal to treat representations as a fresh claim under paragraph 353 of the Immigration Rules.