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

This is a renewed application for permission to appeal from a determination of the Asylum and Immigration Tribunal, dated 8 March 2007, permission having been refused on paper by Sir Henry Brooke.

The applicant is a young man, now aged seventeen, but when this process started was aged fifteen, who comes from Afghanistan. His claim is based upon the position of his father who, it is accepted, was a well-known commander of the Taliban and involved with the Hizb-e-Islami movement. The Asylum and Immigration Tribunal held in terms, in paragraph 25, that if the father were to come to this country and seek asylum he would have a strong claim because of his high profile in his country and the dispute between the Northern Alliance and the members of the Taliban. However, their finding was that this particular applicant, who had left Afghanistan just before his fifteenth birthday and was not a person with any political involvement, would be of no interest to the authorities because of his father’s past activities. There was no other reason that he relies on for thinking that he should have asylum.

The case was complicated to some extent by the fact that he arrived here just before his fifteenth birthday as an unaccompanied minor, and under the then current and now policy he was properly given exceptional leave to remain until his eighteenth birthday, which will fall in September of next year. However, on that date accruing, there is no reason why he should not then be returned to Afghanistan unless he can establish refugee status or some other reason not in terms of refugee status for staying here; that is why he makes an application for that status, which has been refused by the Secretary of State and by the tribunals below.

The application to this court has an unusual and to some extent disturbing history. In circumstances that cannot be explained, Sir Henry Brooke’s notice of refusal, having been issued by this court on 26 September, did not come to the attention of the appropriate person in the solicitor’s office until 16 October. The document that he had and that I have seen was not date-stamped on arrival, and therefore the court has to assume that it was delivered by something like 28 September and, in some way unexplained, was overlooked in the solicitor’s office. That meant that the application to renew was out of time in any event. When the application was made it necessarily applied for an extension of time, but it did so only by saying that there had been a delay --which there had been -- in obtaining legal services funding once the matter was put in hand, and promptly put in hand, on 16 October. That application should have addressed the previous period, because the application was already out of time when the application was made to the legal services authorities.

The matter was listed before me last week. Counsel who had the conduct of the case throughout appeared before me, and expressed herself as being completely ignorant of the fact that the application was one for extension of time rather than simply for permission. Also, the person from the solicitors attending upon her appeared not to be aware of that either. I found that extremely unsatisfactory and, since counsel was not in a position to give an explanation and the solicitors have given no explanation, I adjourned the matter until this morning, so that that explanation could be given and the substance of the matter also considered. Since then, counsel previously engaged has gone on holiday and been replaced by Mr Hawkin, who appears today.

There is still no explanation given of why proper instructions were not issued last week, obliging the court to adjourn the matter; and I have made it clear I hope that that must be carefully looked into by this firm of solicitors, who I venture to say are a well-known and respected firm in this area of work, such an explanation should have been given to me today. If this were an ordinary case the matter would simply be struck out, but we do not take that view in asylum matters, not least because we have to be aware of this country’s international obligations to deal with cases that are genuinely ones of asylum. I therefore ruled that time would be extended and I would consider the substance of the matter.

Now when the matter was before me last week, I was told in the skeleton that was then put before me that there was only one matter in issue, or one complaint made, and that was that the Asylum and Immigration Tribunal had assessed the position of this man as at the wrong date. They said this in paragraph 25 of their determination:

And then they go on to find as facts that there is no danger of his connection with his father coming to light and no evidence, in any event, that teenage children of Taliban commanders are in any danger even if they are identified. Mr Hawkin has sought to maintain the complaint today that the tribunal was wrong in looking at what the position would be in September 2008. What they should have done, he said, was to look at the position at the time that they were considering the matter, and he has cited certain authority to that effect. I do not myself think that that authority assists him, because it is saying that the position should be assessed at the date of the hearing if circumstances have changed since the original decision; when, of course, it would be no good saying, “Well, we recognise you would be unsafe to go back now, but you were safe when the Secretary of State made his original determination”. That is not this case. The tribunal found as facts that the position now was that he would be safe if he went back, and there was no reason to think that things will be different if he goes back in September 2008, which is the likely timetable.

Now, for my part, I found great difficulty in seeing that, first of all, the tribunal made any error in approaching this particular case on that basis; secondly, that they could have done anything else, because it would be extraordinary if they had to shut their eyes to the fact that the operative date was September 2008; and thirdly, on the findings of fact that they made, I cannot see how this point assists this applicant in any event, because it is absolutely clear that if the tribunal had been told and accepted that they had got to decide the matter on the date of the hearing, they would have come to exactly the same conclusion. So I have the greatest difficulty in thinking that this is a good point. Mr Hawkin is, however, adamant that he wishes to pursue it, and is not wholly impressed by the complaints that are directed at it. In the circumstances, I am prepared to give him permission to pursue this point, but he was good enough to say that he would think again about whether it really was appropriate in the context of this case.

The other points, however, which he has now drawn to my attention (which were not previously drawn to my attention), are ones where I think this court ought to have an opportunity to review the matter. It is fair to say to his predecessor that these, or most of them, were put in skeleton argument -- or appeared to have been -- to the Asylum and Immigration Tribunal, but they do not appear to have made any impact.

The points upon which -- and going largely through Mr Hawkin’s replacement skeleton -- I have been minded to grant permission are this. First, that the immigration judge, of whose decision the AIT’s determination was a reconsideration, found the applicant to be entirely credible. He rejected the claim because he did not think that the applicant had demonstrated, for Convention purposes, that he was a member of a relevant social group. Mr Hawkin is entitled to argue that on that basis it was not right for the tribunal to order a complete reconsideration, and that the Asylum and Immigration Tribunal should not have reconsidered the general question of credibility, which is what they did. That is the first point, a complaint about the terms of the reconsideration.

Secondly, in concluding that children of Taliban leaders were at no risk, the tribunal did not consider the case of RS (Afghanistan) v SSHD [2004] UKIAT00278 which addressed that issue. I have not gone into that case in detail. It may be when it is properly inspected it does not help this man; but he is entitled to complain that it should at least have been dealt with by the tribunal. If the tribunal was wrong in that, it was of course an error of law and not merely a mistake of fact, because it is clear from various authorities, not least R (Iran) and Others v SSHD [2005] INLR 633, that a failure to address a country guidance case can be an error of law, and not merely one of fact. Although RS is not in form a country guidance case, it seems clear that it was regarded as having a status akin to country guidance by the court that decided it, and so it is necessary to review that.

Thirdly, on the question of the credibility of the applicant and his explanation of why he had left Kabul, the tribunal did decide that in terms, and found that it was implausible that a person of his age (that is to say, fourteen at the relevant time) should claim that he really had no idea what was going on when he left Afghanistan. It seems to me arguable -- though only just arguable, but arguable -- that they should, in reaching that conclusion, have addressed in terms the guidance that Mr Hawkin has very valuably drawn to my attention: that is to say, the chief adjudicator’s guidance note with regard to unaccompanied children.

Fourthly, there is an issue, of course, about social group, the matter upon which Mr Youngerwood found against this applicant. That matter needs to be reconsidered if the other reconsiderations are valid, and attention needs to be given, as Mr Hawkin argues, to the implications of the finding already referred to: that this man’s father would be at risk and would be qualified for international protection were he to arrive in this country.

I meant to add that when looking at the case of RS it would seem, on the surface at least, that it is not arguable, or should not be argued, that the situation in Afghanistan has relevantly changed since RS was decided, since the tribunal itself so finds in a passage that I have already read; that Afghanistan is in a state of turmoil, anything could happen between now and when this man’s leave is to expire.

For those reasons, therefore, and on that basis, I would grant permission. Mr Hawkin needs to redraw the grounds of appeal in order to accommodate the basis on which -- and the grounds on which -- he has permission, and he has leave to do that not later than 10 January 2008. There will be legal funding assessment for this application.