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

LORD JUSTICE MOORE-BICK: This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.

The applicant is an Afghan national who entered this country in December 2007 when he was about 16. He claimed asylum on the grounds that he was at risk of ill=treatment if he were to return to Afghanistan. He said that when he was about 7 years old his family had been broken up by a Taliban attack on his village and he was taken to Kabul where he was forced to work and was sexually abused. In 2007 he came across someone who was able to put him in touch with his brother in this country. His brother sent money to pay for his journey to this country.

This account, although uncorroborated except as to the extent of his brother's involvement, was accepted by the Tribunal as essentially credible, but his appeal was dismissed on the grounds that he was no longer at risk of persecution in Afghanistan. However, he was granted discretionary relief to remain until June 2009 when he became seventeen-and-a-half.

His subsequent application for further leave to remain was refused. He appealed to the First-tier Tribunal, which, as I say, accepted his account as essentially credible but dismissed his appeal. The applicant nonetheless remained in the United Kingdom working illegally and living with his brother. In about January 2013 he commenced a relationship with a lady called Hyla Manoila, a Romanian national and orthodox Christian. During the ensuing months he became interested in Christianity. He claimed that he had begun to attend a local church and Bible classes and had completed an Alpha course but had stopped attending church because he was worried that he was at risk of harm from Afghan Muslims in his local community.

In June 2013 the applicant was discovered and was then served with removal directions. On 11th July 2013 he made a further application for asylum, based on his conversion to Christianity. The solicitors acting on his behalf made representations to the Secretary of State by letter dated 11th July, to which there was attached a statement from Ms Manoila and also an e-mail supporting his evidence from a person called Sheema Pourmokhtar. The submissions were reinforced by a second letter sent to the Secretary of State on 16th July to which there was appended a statement from the applicant himself, explaining his contact with the Christian religion through his girlfriend Ms Manila and the steps he had taken to become a convert. That was supported by a statement from his brother with whom he was then living.

The representations were put forward as a fresh claim, but that was rejected by the Secretary of State on 22nd July 2013 because she was not satisfied and he was a genuine convert and so would be at risk of ill treatment on return to Afghanistan. She therefore rejected the assertion that his most recent evidence was sufficient to constitute a fresh claim.

In a letter dated 22nd July 2013 the Secretary of State referred to the letter of 11th July, but commented that the applicant had supplied no evidence at all to support his claims that he had been attending Bible classes or church and that his submissions did not begin to demonstrate that he had genuinely converted to Christianity. As a result she did not accept that he would be at risk on return. The assertion that no evidence had been provided in support of his case is difficult to reconcile with the fact that statements had been provided of the kind that I have described.

The Secretary of State wrote a second letter on 22nd July responding to a letter from the applicant's solicitors, in which she said, in response to the assertion that her decision had been irrational, that there was no reason why the uncorroborated comments made in the statement provided to her should be accepted, as they were clearly self=serving and subjective in their content.

The applicant was removed to Afghanistan on 23rd July. Shortly after his arrival he was arrested and detained on the grounds of his conversion from Islam to Christianity. He subsequently bribed his way out of detention and went into hiding.

In the meantime on 22nd July a claim for judicial review of the Secretary of State's decision had been issued on his behalf. Permission to proceed was granted on 24th October 2013 on the basis that the Secretary of State might not have considered all the evidence before reaching her decision. By the time the claim for judicial review came on for hearing the applicant’s case was that the material that had been placed before the Secretary of State should have been accepted as constituting a fresh claim and that the Secretary of State had acted irrationally and unlawfully in failing to accept it as such. It was also argued that on his return to Afghanistan the applicant had in fact suffered ill-treatment as a foreseeable consequence of the Secretary of State's decision. That itself was said to render the decision unlawful.

The Upper Tribunal held that it was open to the Secretary of State to conclude that the material before her did not constitute a fresh claim because taken together with the material previously submitted, it did not give rise to a real prospect of success before the First-tier Tribunal. The Upper Tribunal held that the Secretary of State was well aware of the appropriate test; indeed she had referred to it in her first letter of 22nd July and had referred to such parts of the material as were relevant to that question. The Tribunal considered that any deficiencies in the Secretary of State's first letter had been cured by the second, in which there had been a reference to all the relevant evidence. With respect to the applicant's alternative argument the Upper Tribunal referred to the guidance in the case of Saadi v Italy [2009] 49 EHRR 30 and held that the problems encountered by the applicant after the removal to Afghanistan had no bearing on the lawfulness of the Secretary of State's decision. It concluded that the respondent was entitled on the evidence before her to find that the fresh claims test was not satisfied and it was not obliged to consider how the applicant would be treated if that test had been in fact satisfied. Accordingly, the application for judicial review was dismissed.

The applicant now seeks permission to appeal to this court on five grounds. I can summarise them as follows. First, that the Upper Tribunal erred in finding that the deficiencies in the Secretary of State's first letter of 22nd July 2013 were cured by her second letter of the same date. Second, that the Upper Tribunal erred in failing to take as its starting point the finding by the First-tier Tribunal, in January 2010, that the applicant had been a credible witness. Third, that it erred in failing to take into account the fact that the Secretary of State had not considered the risk on return. Fourth, that the Tribunal erred in its approach to the decision on Saadi by failing to take into account the fact that the Secretary of State was aware of the risk faced by Afghan Christian converts, a risk which had been recognised in the case of NM (Christian Converts) Afghanistan Country Guidance [2009] UKAIT 45. Fifth, that the Upper Tribunal erred in placing weight upon the absence of any material capable of corroborating the evidence given by a church figure in support of the applicant's conversion.

In my view, the first, third, fourth and fifth of those grounds do not really have a significant prospect of success. In her first letter the Secretary of State declined to treat the application as a fresh claim on two main grounds: that the claim that the applicant had converted to Christianity lacked the evidential support that would be expected if it were genuine and that the applicant's relationship with Ms Manoila was too short to enable him to qualify for leave to remain as an extended family member of an EEA national.

In her second letter she described in greater detail the evidence before her and explained why it was, in her view, inadequate to constitute a fresh claim. Since the two letters do no more than give reasons for one decision and since the second was clearly intended to be read with and amplify the first, I can see no reason why the two should not be read together. If it was necessary for the Secretary of State to identify all the evidence before her, she did so. The risks that the applicant would face on return to Afghanistan if she were wrong was not a factor that she had to take into account when deciding whether the evidence amounted to a fresh claim. But in any event, she must have been aware of the nature and severity of those risks because it has not been suggested that the findings in NM (Christian Converts) Afghanistan were unknown to her.

What concerns me most about the present case, however, is whether the Secretary of State asked herself the right question. She did identify in her first letter of 22nd July 2013 the test which is to be found in the case of WM(DRC) v Secretary of State for the Home Department and is to be applied when considering whether representations amount to a fresh claim, namely, whether if the fresh evidence were before a Tribunal, together with the existing material, there is any real chance the Tribunal would accept it and allow the appeal. It seems to me arguable, however, that the Secretary of State answered a different question when she said in her first letter of 22nd July that the applicant’s solicitors had supplied no evidence at all to support the claims that he had converted to Christianity and that the material did not begin to demonstrate that he had genuinely become a convert. A similar view was expressed in the second letter of 22nd July. The fact was that in this case there was corroborative evidence in the sense there were statements from not only from the applicant himself but from his girlfriend, his brother and others and Sheema Pourmokhtar which supported his account. On a previous occasion the applicant had been regarded as a credible witness by the First-tier Tribunal when giving evidence of matters which were not corroborated to a large degree by any other evidence. It could not be said therefore that he had been found in the past to be an inherently unreliable witness.

The Secretary of State herself may have been entitled to form the view that the applicant’s account was not credible, but that was not the question. The question was whether if the material was placed before an immigration judge that judge might accept the account given by the applicant as true. In my view it is arguable that he might.

For those reasons it seems to me that it is arguable that the Secretary of State acted unlawfully by failing to ask herself the correct question or, if she did ask herself the correct question, by concluding that there was no real prospect that any immigration judge would accept the applicant's account, together with the other evidence put forward on his behalf, as true.

In those circumstances I will give leave to appeal in relation to that ground only.