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

This is an appeal by ST (‘the appellant’) from a determination of the Upper Tribunal (Immigration and Asylum Chamber) dated 23 November 2015 (Deputy Upper Tribunal Judge Chana). The confined ground on which permission to appeal was given is whether the conclusion of the First Tier Tribunal (‘FtT’) on internal relocation within Afghanistan was unlawful and/or contrary to established County Guidance, and whether, in upholding that conclusion, the Upper Tribunal (‘UT’) erred in law.

The appellant is an Afghan national who was born on 18 March 1995. He arrived in the United Kingdom in March 2010 as an unaccompanied minor and claimed asylum shortly after, on the basis that he had a well-founded fear of persecution by the Taliban. Although that claim was refused, he was granted discretionary leave to remain as an unaccompanied minor until 18 August 2012. At the expiry of this discretionary leave, he applied for further leave to remain. The application was made on a number of grounds. So far as material to the present appeal, one of the grounds was a claim under articles 2 and 3 of the European Convention on Human Rights (‘ECHR’) based on his continued fear of ill-treatment at the hands of the Taliban.

The Secretary of State (‘the respondent’) refused the application for reasons set out in a decision letter dated 17 July 2014. Having addressed the law and cases relevant to internal relocation in Afghanistan, including Country Guidance cases, the letter concluded that the appellant could safely relocate to Kabul.

The appellant appealed to the FtT on a number of grounds, one of which was a challenge to the respondent’s assessment of the availability of internal relocation. The appellant adduced factual evidence in support of his case as well as a report from Dr Antonio Giustozzi, an expert on political and social conditions in Afghanistan.

The argument on this appeal focussed on the FtT decision which was promulgated on 11 May 2015 (Immigration Judge Callow). The appellant’s core factual account was accepted. However, the tribunal did not accept the conclusion of Dr Giustozzi as to the level of risk that the appellant would face if returned to Kabul.

The FtT found that the appellant came from an area near Jalalabad, where he had lived with his family until the age of 14. His father worked with a pro-government warlord, Haji Zaman; and this had brought the family to the attention of the Taliban. The appellant had not engaged in any pro-government or anti-Taliban activities himself; and had no ‘political profile’ before leaving Afghanistan. However, while at school, his relationship with his father had made him the target for an unsuccessful attempt to kidnap him in 2009, shortly before he left Afghanistan in 2010. He had not had contact with his father since then, and his father’s whereabouts were unknown. The appellant was a mature and resourceful young man, and in good health. He had benefitted from his education in the United Kingdom and spoke good English as well as fluent Pushtu.

The FtT referred to a number of cases to which we were referred in the course of argument and to which it will be necessary to return later in this judgment: HK and others (minors) Afghanistan CG [2010] UKUT 378 (IAC); AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC); AK (Article 15 (c) Afghanistan CC) [2012] UKUT 163 (IAC); and H & B v. The United Kingdom (2013) 57 EHRR 17.

The tribunal concluded (at [21]-[22]) that the appellant could safely return to Kabul: it was for the appellant to demonstrate that it would not be reasonable to expect him to relocate and, beyond a general assertion that the Taliban were interested in him, this had not been demonstrated. Contrary to the opinion of Dr Giustozzi, the appellant had no ‘political profile’ and ‘any potential interest that the Taliban had in the appellant can now be discounted by the lapse of time.’ He had not established risk of recruitment by the Taliban; and the adverse impact of his return to Kabul would be lessened by the availability of return and reintegration packages.

The parties agreed that the decision of the UT did not significantly bear on the argument before us.

The legal principles that apply when considering the issue of internal relocation were largely common ground and can be stated shortly.

An asylum seeker will not require international protection as a refugee if there is a satisfactory option of relocation in another part of his home country. In deciding whether such internal relocation is available, two questions must be answered: (a) would the individual face a real risk of persecution in the place of the proposed relocation, and (b) would it be unduly harsh to expect the individual to relocate in that area. The resolution of each question requires a fact-specific assessment, in which regard should be had to the most recent Country Guidance decisions of the Upper Tribunal. These provide general guidance as to the conditions in the country of proposed return, and the particular risks which may be faced by particular categories of individuals. Although a tribunal should have regard to expert evidence which addresses these questions, the weight to be attached to this evidence is for the tribunal, which will have regard to the totality of the evidence. To the extent that such evidence is not accepted, a tribunal should explain why. The second question (whether it would be unduly harsh to expect the individual to relocate) is to be assessed by considering whether the individual could live a relatively normal life in the place of relocation, judged by the standards generally prevailing in his or her country of nationality, see the general observations of Lord Bingham in Januzi and ors v. Secretary of State for the Home Department [2006] 2 AC 426 at [20] and [21].

Mr Mackenzie challenged the FtT’s findings both in relation to the risk of persecution if the appellant relocated to Kabul and the reasonableness of such relocation.

In order to assess these submissions, it is necessary to set out parts of the FtT’s findings in slightly more detail than summarised above:

Mr Mackenzie submitted the FtT had identified two reasons why the appellant could relocate internally to Kabul.

The first reason was that he had ‘no political profile.’ However, in doing so, the tribunal had failed to consider whether the appellant had a political profile in his own right as the son of a known supporter of Haji Zaman and whether he would be at risk as a result of his father’s connection. Evidence of this risk was supported by the guidance in AA (unattended children) Afghanistan (see above) and in Dr Giustozzi’s report. He argued that the FtT had given no reasons for not accepting evidence of this risk to the appellant. To the extent that there was a conflict between the views expressed in AA (unattended children) (see above) and those expressed in H & B v. UK (see above), the former was to be preferred.

Second, the FtT had erred in concluding that the lapse of time had reduced the very clear risk which had been demonstrated in 2009 at the time of the attempted kidnap.

The first argument raises the question of the extent to which the FtT is bound to follow Country Guidance cases in the Upper Tribunal. This matter was addressed in R (Iran) and others v. Secretary of State for the Home Department [2005] EWCA Civ 982 in relation to the Immigration and Asylum Tribunal (‘IAT’):

Practice Direction 12.2 of the Immigration and Asylum Chamber (First and Upper Tier) dated 10 February 2010 requires a tribunal to have regard to any relevant Country Guidance determination when making a decision. Those parts of Country Guidance cases which provide authoritative guidance are conveniently set out in the italicised part of the headnote. These are to be distinguished from those parts of an Upper Tribunal’s decision which relate to the particular facts of the case, whose authority will depend on whether the issue depends on the same or similar evidence. AA (unattended children), as its name suggests, was concerned with unattended children, and on the particular facts of the case the Upper Tribunal concluded that AA had a justified fear of being persecuted or suffering other serious harm if he were returned to Kabul. Although there are some similarities between the facts relating to AA and those relevant to the appellant, in that they were both children of fathers who were identified opponents of the Taliban, the differences are stark. As the decision in AA (Afghanistan) noted at [96]-[104], AA was facing return to his home province in Afghanistan as a child only two years after he had been identified as having sung an anti-Taliban song at school and been rewarded by a foreign visitor for doing so. Two hours after this, the Taliban had come to the school and opened fire on those who were there, killing and injuring people, and two days later the Taliban had come looking for him. AA had come from Kabul province (the province to which he was to be returned); his father was still alive and considered to be a spy for the government, whose activities had led to the arrest of many members of the Taliban; and his elder brother was a military commander working with foreign troops.

In my view, the appellant is not greatly assisted by the facts of AA (unattended children); and the criticism that in the present case the FtT should have followed that case rather than H & B v. United Kingdom, or explained why it preferred to follow the former case is ill-founded. H & B v. United Kingdom was a decision of the ECtHR which expressly referred to, and took into account, the relevant Country Guidance cases: HK (minors), AA (unattended children) and AK (article 15(c)). The case before the ECtHR concerned two applicants: H, who had worked as a driver in Kabul working for UN, and B, who had been an interpreter working with the US and International Security Assistance Force. The court concluded that there would be no violation of article 3 of the ECHR if they were removed to Kabul.

The ECtHR recorded part of its decision in the headnote at H12:

The FtT in the present case was plainly entitled to regard the decision in H & B v. United Kingdom, based as it was on UT County Guidance cases, as support for its observations in [21] of its decision. There was no inconsistency between H & B v. United Kingdom and AA (unattended children) which required to be resolved.

Before leaving H & B v. United Kingdom it is convenient to refer to a further passage in the judgment in the context of Mr Mackenzie’s criticism of the FtT’s decision in its approach to the expert evidence. Dr Giustozzi had prepared an earlier report (‘the Landinfo Report’) dated 9 September 2011 which was considered by the ECtHR. At [55], the Court quoted from a passage in the report, part of which read:

At [58], the Court quoted from the conclusion of the Landinfo report:

There is no issue that the Taliban was not present in force in Kabul at the date of the decision in the present case.

Mr Mackenzie was critical of the way in which the FtT addressed the evidence of Dr Giustozzi about the position of the appellant. He submitted that the first two sentences of [22] of the FtT decision were short and conclusory, and did not address Dr Giustozzi’s clearly expressed views at §39 of his report as to the risk faced by the appellant if he were returned to Kabul: namely, that it was ‘only a matter of time’ before he ‘would certainly face a reasonable likelihood of targeted killing.’

The difficulty with this argument are the expressed reasons for this conclusion (set out in §26 of Dr Giustozzi’s report). Having addressed the risk of return to his home province, Dr Giustozzi added, ‘Moreover, [the appellant] would not be safe in Kabul either.’ However, the evidence supporting this view was plainly evidence of attacks in Kabul on high profile targets. This was consistent with his views expressed in the Landinfo report, referred to in H & B v. United Kingdom.

It is clear from the passages in the FtT decision set out above (paragraph 5(e), the penultimate sentence of paragraph 21 and the first two sentences of paragraph 22) that the FtT had understood that the risk was to be assessed by reference to the appellant’s low public profile and the passage of time since he had been of interest due to his relationship with his father, and was entitled to do so.

Although, the legal basis of the appellant’s challenge to the FtT changed and at times was argued to be a perversity argument, at times an irrationality challenge and at times an illegality challenge, by the close of the argument it was based on a failure to take proper account of the evidence. An appeal to the weight attached by a tribunal to evidence given before it faces formidable difficulties which were not overcome in the present case. In my view, however one characterises the appellant’s argument, it did not give rise to a successful public law challenge to the findings of the FtT on the risk issue.

The focus of Mr Mackenzie’s argument was that the FtT could not reasonably reach the conclusion that it was not unduly harsh to relocate to Kabul without taking into account that he had no family members there. He referred to a passage in AK (Article 15(c)) (above) at [224] that the importance of return and reintegration packages, such as would be available to the appellant, was not to be exaggerated: they were chiefly designed ‘to cushion against immediate travails on return.’

Mr Sheldon submitted that the existence or absence of family connections was a factor to be taken into account in the assessment of undue harshness but was not dispositive either way: it might for example increase the risk of return if the family member was a prominent supporter of the government living there. In any event, he argued that the reasons provided by the FtT were sufficient to support its conclusions on reasonableness.

It seems to me that the FtT’s reasoning on this point could have been fuller. Mr Sheldon submitted that it had not been in issue; but whether or not that is so, the findings were plainly sufficient to support the conclusion on the point. The appellant was a mature and resourceful young man, in good health, who had benefitted from an education in the United Kingdom, was fluent in Pushtu and spoke good English. He was also familiar with Afghan culture having lived in Afghanistan for most of his life, had demonstrated an ability to live independently and would receive assistance in resettling. This evaluation is well in line with that in other cases, see for example, AK (Article 15(c) Afghanistan) at [253] and H & B v. United Kingdom at [114].

I would dismiss this appeal.

I agree.