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

On 23 March 2018 the Upper Tribunal (Immigration and Asylum Chamber), comprising Upper Tribunal Judges Allen and Jackson, promulgated a Country Guidance decision about the suitability of Kabul for “internal relocation” for Afghan asylum-seekers. Its decision was, in bare outline, that it would not in general be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even if he had no specific connections or support network there; and in accordance with that decision the appeal of the particular Appellant, AS, a young man originally from Laghman province, against his removal to Afghanistan was dismissed. The decision followed five days of hearings spread over the period from 25 September to 11 December 2017, at which evidence was heard from three experts and a mass of documentary evidence was considered.

Following refusal of permission to appeal by the Tribunal, AS applied to this Court on the basis of five grounds. Ground 1 alleged a serious error in the Tribunal’s finding as to the scale of the risk of injury to which residents of Kabul were exposed from

On the appeal AS is represented by Ms Sonali Naik QC, leading Mr Ronan Toal and Mr Ben Bundock. The Secretary of State is represented by Mr Sarabjit Singh QC. All counsel save Mr Toal also appeared in the Upper Tribunal.

The United Nations High Commissioner for Refugees (“UNHCR”) (Footnote: ¹) has been granted permission to intervene. He is represented by Mr Michael Fordham QC, Mr Ali Bandegani and Mr Shane Sibbel, all of whom (with their solicitors, Baker & McKenzie LLP) acted pro bono. I am grateful for their helpful written and oral submissions.

The nature of the issues is such that I need give only very brief introductions to the background law and to the decision of the Upper Tribunal before I turn to the grounds themselves.

The principles governing eligibility for international protection in the UK – which includes but is wider than refugee status under the 1951 Refugee Convention – are now set out in EU Council Directive 2004/83/EC (“the Qualification Directive”). Chapter III of the Directive defines “Qualification for being a Refugee” by reference

torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

Article 8 of the Directive excludes from the ambit of international protection cases where the person at risk has the opportunity of moving to a location within his or her country of origin where the relevant risk does not apply, often referred to as a “safe haven”. It reads (so far as material):

As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country [emphasis supplied].

In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

…”

The Qualification Directive was implemented in this country by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, which came into force on 9 October 2006; but the principles incorporated in article 8 reflect the pre-existing law relating to the Refugee Convention and it was common ground before us that earlier decisions regarding internal relocation remain authoritative. The

The two principal domestic authorities concerning internal relocation are the decisions of the House of Lords in Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, and AH (Sudan) v Secretary of State for the Home Department [2006] UKHL 49, [2008] 1 AC 678. (Footnote: ²) I need not attempt a comprehensive summary of the decisions in those cases. I need only say at this stage that at paras. 719 of his opinion in Januzi (pp. 440-450) Lord Bingham explained the development of the criterion, now enshrined in article 8.1 of the Directive, of whether the applicant for protection “can reasonably be expected to stay” in the proposed safe haven and discussed its meaning and effect. At para. 20 he said (p. 448 C-D):

In his opinion in AH (Sudan) Lord Bingham quoted and glossed a further passage from his opinion in Januzi, saying at para. 5 (p. 683 E-G):

I shall have to return in due course to some aspects of the speeches in Januzi and AH (Sudan). At this stage it is sufficient to note that one of the circumstances that is plainly relevant to the assessment of reasonableness is the level of security in the proposed safe haven. Although there will, ex hypothesi, be no risk in such a haven of persecution or serious harm (including harm from indiscriminate violence from armed conflict falling within article 15 (c)), there may nevertheless in principle be a sufficient risk of injury from other forms of violence to render it, generally or in combination with other factors, unduly harsh for the applicant to be expected to relocate there. This particular factor is not in fact explicitly mentioned in Januzi or AH (Sudan) because it did not arise in the circumstances of those cases, but it is specifically identified in the UNHCR 2003 Guidelines to which Lord Bingham referred in the passage from Januzi quoted above. They discuss, at paras. 25-30, a number of factors which should form part of the reasonableness analysis. Para. 27 is headed “Safety and Security” and reads:

The Upper Tribunal’s reasons are clear, thorough and well-organised and a great deal of work evidently went into them. I shall have to return to particular passages in due course, but at this stage I need only explain their structure.

After some introductory material, paras. 14-44 deal with the legal framework. At paras. 27-40 the Tribunal addresses a particular issue which is the subject of ground 2: I set out the relevant passages at paras. 58-59 below.

Paras. 45-171 summarise the evidence which the Tribunal heard. After a preliminary section which comments on the expert witnesses it organises the evidence under two headings as follows.

(1) “Evidence on risk” (paras. 67-97). This deals with the evidence about the risk of persecution in Kabul, focusing in particular on the risk that the Taliban could target returned asylum-seekers there: it was AS’s case that his father and brother had been killed in his home village, which is why he had originally fled, and that those responsible would try to track him down. No case was advanced based on Chapter V of the Qualification Directive: in particular the Appellant specifically disavowed any claim of risk from indiscriminate violence from armed conflict falling within article 15 (c) (see para. 11 of the decision).

(2) “Evidence relevant to assessing the option of internal relocation” (paras. 98-171). This section summarises the evidence relevant to the assessment of reasonableness required by article 8 of the Directive. It starts by referring at para. 98 to the then current UNHCR Guidelines (issued in 2016) for assessing the international protection needs of asylum-seekers from Afghanistan, and specifically those relating to internal relocation; and at para. 99 it refers to a recent report from Human Rights Watch. It then summarises the evidence under several headings. It starts with “the security situation”, covering both Afghanistan generally and in Kabul: see paras. 100-115. At paras. 116-128 it gives an overview of conditions in Afghanistan and Kabul. It then reviews the evidence relating to

housing and associated amenities (paras. 129-139);

healthcare (paras. 140-143);

employment/socio-economic conditions (paras. 144-154);

“returns procedure and available assistance on return” (paras. 155163); and

evidence of the experience of returnees to Afghanistan (paras. 164171).

The Tribunal gives its general “Findings and Reasons” at paras. 172-241. Its primary findings are under two heads, “risk” and “reasonableness”; these correspond to sections (1) and (2) as identified above.

As regards risk, the Tribunal found no real risk of persecution of any of the kinds alleged by the Appellant. The grounds of appeal are not concerned with this aspect and I say no more about it.

As regards reasonableness, the Tribunal starts at para. 189 by reminding itself of the importance both of the UNHCR’s 2003 Guidelines and of its 2016 Guidelines on returns to Afghanistan to which I have referred. In the following paragraphs it reviews in turn each of the elements bearing on the reasonableness of relocation, as identified under the various headings noted at para. 16 above. It starts, at paras. 190201, with the security situation both in Afghanistan generally and in Kabul and the risk of death or injury from “security incidents”. It then says, at para. 202, which introduces its Tribunal’s consideration of the factors other than security:

At para. 230 the Tribunal concludes:

Age, including the age at which a person left Afghanistan.

Nature and quality of connections to Kabul and/or Afghanistan.

Physical and mental health.

Language, education and vocational and skills.”

The Tribunal summarises its conclusions in “country guidance” format at para. 241. Heads (ii)-(v) concern internal relocation to Kabul and read as follows:

However, the particular circumstances of an individual applicant must be taken into account in the context of conditions in the place of relocation, including a person’s age, nature and quality of support network/connections with Kabul/Afghanistan, their physical and mental health, and their language, education and vocational skills when determining whether a person falls within the general position set out above.

A person with a support network or specific connections in Kabul is likely to be in a more advantageous position on return, which may counter a particular vulnerability of an individual on return.

Although Kabul suffered the highest number of civilian casualties (in the latest UNAMA figures from 2017) and the number of security incidents is increasing, the proportion of the population directly affected by the security situation is tiny. The current security situation in Kabul is not at such a level as to render internal relocation unreasonable or unduly harsh.”

The Tribunal sets out its conclusion on AS’s own claim at paras. 242-250. It deals with the issue of risk of persecution at paras. 242-248. At para. 249 it says:

We asked to hear first from Mr Singh on this ground. Having considered his submissions, we informed the parties that we did not need to hear from Ms Naik and that the appeal would be allowed. These are my reasons for that conclusion.

In its account of the evidence relating to the security situation, at paras. 100-115 of its

In reciting the evidence on this aspect of its Reasons the Tribunal said, at para. 106:

It is evident that the Tribunal was relying on the same material as used on by Mr Singh in his closing submissions, but it will be seen that it expressed the risk on that basis as being not 0.1% (1 in 1,000), as he had put it, but as 0.01% (1 in 10,000). It is common ground before us that that is simply wrong – or, to put it more formally, that a conclusion that the percentage risk was 0.01% was not reasonably available to the Tribunal on the evidence before it. It was initially the Secretary of State’s position that the Tribunal must have based its conclusion on the correct figure and simply made a slip in expressing itself; and accordingly that an application could and should be made to it under the slip rule to correct the Reasons by substituting the figure of

On that basis it is evident, and Mr Singh did not dispute, that the Tribunal made an error of law: it is of course an error of law for a tribunal to reach a factual conclusion for which there is no evidential support.

Prima facie it follows from that conclusion that the case must be remitted to the Upper Tribunal for it to reconsider its decision on the reasonableness of Kabul as an internal relocation alternative on the basis of the correct figure as regards the risk of death or injury from security incidents. Ms Naik accepted that that was the right course: that is, she did not seek to contend that if the correct figure were taken this Court could or should itself conclude that Kabul was not a reasonable internal relocation alternative. Mr Singh, however, submitted that remittal was unnecessary because, even if the Tribunal had used the correct percentage, it would have been bound to come to the same conclusion.

I cannot accept that submission. The Upper Tribunal is the specialist tribunal and it had before it contextual material, to which we were not taken, relevant to both the assessment of the risk of death or injury from security incidents and to the overall question of reasonableness. I do not feel able to regard the result on remittal as a foregone conclusion. I do not think it would be right for this Court to say anything more on the question. I emphasise that by taking this course we should not be regarded as even implicitly suggesting what the outcome of the Tribunal’s reconsideration should be.

I will return to the question of the basis on which the case should be remitted after I have considered ground 2.

The issue in Januzi was identified by Lord Bingham in para. 1 of his opinion (p. 438 C-D) as being:

That issue and the House’s conclusion on it do not directly bear on the issue raised by ground 2, but, as will appear, Lord Bingham and Lord Hope did offer some more general guidance.

First, we were referred to para. 12 of Lord Bingham’s opinion (pp. 444-5), where he quotes with approval a passage from the judgment of the Federal Court of Appeal in Ranganathan, as follows:

There are at least two reasons why it is important not to lower that threshold. First, as this Court said in Thirunavukkarasu, the definition of refugee under the Convention 'requires claimants to be unable or unwilling by reason of fear of persecution to claim the protection of their home country in any part of that country'. Put another way, what makes a person a refugee under the Convention is his fear of persecution by his home country in any part of that country. To expand and lower the standard for assessing reasonableness of the IFA is to fundamentally denature the definition of refugee: one becomes a refugee who has no fear of persecution and who would be better off in Canada physically, economically and emotionally than in a safe place in his own country.

Second, it creates confusion by blurring the distinction between refugee claims and humanitarian and compassionate applications. These are two procedures governed by different objectives and considerations …”

Secondly, we were referred to one of the reasons given by Lord Bingham for rejecting the Hathaway/New Zealand rule. At para. 19 of his opinion he said (pp. 447-8):

Third, Mr Singh referred us to the observation of Lord Carswell, at para. 67 of his opinion (p. 464 C-D), that:

After dealing with the actual issue raised by Januzi Lord Bingham went on to observe that decision-makers needed some guidance on how to assess the reasonableness of an internal relocation alternative. It was in that context that he referred to the 2003 UNHCR Guidelines as noted at para. 11 above. After stating the basic principle which I have there quoted he goes on to set out some passages from the Guidelines developing what is meant by “a relatively normal life without facing undue hardship”.

Lord Bingham continued, in another passage to which Ms Naik referred us:

I should add that the passage from para. 21 of his opinion quoted by Lord Bingham in AH (Sudan) (see para. 10 above) occurs in the context of a different point (relating to whether, in the context of the risk of persecution by the state authorities, it should be presumed that the agents of the state will be able to operate throughout the country); but, as we have seen, Lord Bingham says that it has a wider application.

Lord Hope likewise sought, having addressed the particular issue on the appeal, to give more general guidance. At para. 47 of his speech (p. 457 G-H) he says:

As already noted, the applicants in AH (Sudan) had fled persecution in rural Darfur. The Secretary of State rejected their applications for asylum on the basis that they could reasonably be expected to relocate to Khartoum, where they could be accommodated in refugee camps or squatter settlements. The AIT upheld that decision. Their appeal to the Court of Appeal was successful, but the decision of the AIT was reinstated by the House of Lords.

The leading opinion is that of Lord Bingham, with which all the other members of the House agreed. There were also, however, substantial speeches from Lady Hale and Lord Brown. Lord Hope expressly agreed with Lord Brown as well as Lord Bingham

Lord Bingham started his opinion by recapitulating the effect of Januzi. I have already set out what he says at para. 5: see para. 10 above. He then summarised the decisions of the AIT and the Court of Appeal. One of the bases on which the Court of Appeal had overturned the decision of the AIT was that it “wrongly made a comparison between conditions in the country as a whole and those prevailing in the place of intended alternative relocation and not, as envisaged by Januzi and other authority, between conditions in the place of habitual residence and those in the safe haven”. In other words, its criticism was that the AIT should have proceeded on the basis only of a comparison of conditions in Khartoum with the respondents’ previous stable rural village life in Darfur. Lord Bingham’s reason for rejecting that criticism

Those opinions support both these bases of comparison: … But there was no contest between the two bases in Januzi and nothing was said to suggest that one basis is to be preferred, or is to be the starting point. Both are relevant, and the weight to be given to each is a matter to be judged by the decision-maker in the context of a claim for asylum by a particular applicant in a particular case. As already indicated (para 5 above) the test propounded by the House in Januzi was one of great generality, excluding from consideration very little other than the standard of rights protection which an applicant would enjoy in the country where refuge is sought.

Had the AIT excluded from consideration the conditions in which the [applicants] had lived in Darfur, it would have been wrong to do so. But this is not in my opinion a justified criticism. It acknowledged the home area in Darfur to be the natural habitat of those living there … and recognised that many non-Arab Darfuris were ill-equipped for city dwelling slum life, having come in the main from settled rural backgrounds as farmers … . It is not, I think, suggested that there was evidence on this point which the AIT ignored. …”

I turn to the speech of Lady Hale. She starts by saying, at para. 20 (p. 688 B-F):

After addressing a separate point about the (ir)relevance of article 3 of the ECHR, Lady Hale at paras. 27-29 identified a particular concern that she had about the AIT’s approach. She said (pp. 690-1):

Yet the Tribunal concluded that because the conditions faced by returning Darfuris, however appalling, would be no worse than those faced by other Sudanese IDPs it would not be not ‘unduly harsh’ to expect them to return. The standard of comparison was, not with their lives in Darfur before their persecution, not with the general run of ordinary lives in Sudan, not even with the lives of poor people in Sudan, but with the lives of the poorest of the poor, internally displaced victims of the civil war in the south, living in camps or squatter slums, and ‘subject from time to time to relocations, sometimes involving force and human rights violations’ .... They too had been subsistence farmers, ill-equipped to survive in the city slums

My concern, therefore, is that, although the determination does refer to many relevant considerations, it … subordinates all considerations to a comparison with the very worst lives led by other Sudanese …”

As for Lord Brown, at para. 35 he says that there is not a word in the opinion of Lord Bingham with which he disagrees and he goes on to refer to the encapsulation of the relevant test at para. 5 of that opinion. At para. 37 he says (p. 693):

In AA (Uganda) [2008] EWCA Civ 579 the claimant was a young woman from northern Uganda who had fled from abuse there and who was at risk of serious harm, within the meaning of Part V of the Qualification Directive, if she returned to the part of the country from which she originated. But the Secretary of State decided, and the AIT accepted, that she would be safe if she relocated to Kampala. At the time of the AIT’s decision AH (Sudan) had not been decided.

This Court allowed her appeal on the basis that if she were returned to Kampala it was likely that the only way that she could survive was by prostitution. The leading judgment was given by Buxton LJ. In his summary of the relevant law he referred, at para. 7, to the opinion of Lord Bingham in AH (Sudan). He also referred to Lord

There is, however, a further and more fundamental reason why it is difficult or impossible to apply the jurisprudence of AH (Sudan) to the present case. There, the conditions in the place of relocation involved poverty, disease and the living of a life that was structured quite differently from that from which the appellants had come in Darfur. It had been open to the AIT to hold that exposure to those conditions, shared by many of the refugees' fellow-countrymen, did not amount to undue harshness. But the present case is different. On the evidence accepted by the AIT, AA is faced not merely with poverty and lack of any sort of accommodation, but with being driven into prostitution. Even if that is the likely fate of many of her fellow countrywomen, I cannot think that either the AIT or the House of Lords that decided AH (Sudan) would have felt able to regard enforced prostitution as coming within the category of normal country conditions that the refugee must be expected to put up with. Quite simply, there must be some conditions in the place of relocation that are unacceptable to the extent that it would be unduly harsh to return the applicant to them even if the conditions are widespread in the place of relocation.

This was a case that called for an enquiry as to whether conditions in Kampala fell into that category. In not addressing that enquiry the AIT acted irrationally and its determination cannot stand. …”

AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC) is, as the title suggests, a country guidance case concerned with the issue of whether it is reasonable to expect Iraqi Kurds to relocate to the Iraqi Kurdish Region (“the IKR”). It was decided in June 2018, but it had been heard in February, and the UT (UTJJ O’Connor and Bruce) does not refer to the decision in the present case.

Mr Singh appeared for the Secretary of State in AAH. He relied on para. 42 of Lord

The UT considered those submissions with care at paras. 79-90 of its Reasons. It began by referring to, in substance, the same passages from Januzi and AH (Sudan) as I have quoted above. It then turned to an analysis of the relevant parts of Lord Brown’s speech. It says, at paras. 84-85:

The UT then refers to AA (Uganda), observing that Buxton LJ did not regard Lord Brown’s speech as inconsistent with Lord Hope’s statement in Januzi that the issue was whether the claimant could “live a relatively normal life [in the safe haven]

At para. 88 the UT referred to the error made by the AIT in AA (Uganda) as illustrating the dangers of treating “the significant minority test” as determinative. It also referred to EB (Lone Women - PSG - internal relocation – AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090. It continued:

To anticipate, I have set out the reasoning of the UT in AAH at such length – including some passages which go beyond the particular issue before us – because I entirely agree with it.

I have already summarised the overall structure of the Upper Tribunal’s reasoning and set out its essential conclusions. But I need to give more detail about its analysis of the authorities discussed above.

At paras. 18-26 of its Reasons the Tribunal quotes most of the passages from Januzi and AH (Sudan) which I have set out above. At para. 27 it notes that Mr Singh relied on the use in para. 42 of Lord Brown’s speech in AH (Sudan) of the phrase “a significant minority”; that Ms Naik challenged that reliance, on grounds which it summarises at paras. 27-33 (and which include the submission that what Lord Brown said was obiter and inconsistent with the ratio of the majority); and, at paras. 34-35, that Mr Singh made two points in response. (The Tribunal does not in fact identify the specific submission for the purpose of which Mr Singh relied on the passage in question, nor does its summary of Ms Naik’s response make the position clear.)

The Tribunal sets out its view of the effect of para. 42 of Lord Brown’s speech at paras. 36-37, as follows:

The Tribunal concludes, at paras. 39-40:

I start by summarising the essential points, so far as relevant to this appeal, established by the authorities about the nature of the exercise required by article 8 of the Directive. I emphasise that this is not intended as a comprehensive analysis of all the issues raised by the authorities to which I have referred.

By way of preliminary, internal relocation is obviously not an alternative where there is a real risk that the applicant for asylum will suffer persecution, or serious harm within the meaning of article 15 of the Directive (which includes treatment which would be contrary to article 3 of the ECHR), in the putative safe haven. We are concerned with cases where there is no such risk.

The ultimate question is whether in such a case “taking account of all relevant circumstances pertaining to the claimant and his country of origin, … it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so”. That is the formulation of Lord Bingham in Januzi, repeated in AH (Sudan). It pre-dates the Directive and is not identically worded: in particular, the reference to whether relocation would be “unduly harsh” is not present in article 8 but derives from the UNHCR 2003 Guidelines (see Januzi, para. 20). But it was common ground before us that it states the test required by article 8. When in doubt it is to that question that tribunals should return.

The test so stated is one of great generality (save only that it excludes any comparison of the conditions, including the degree of respect for human rights, between those obtaining in the safe haven and those of the country of refuge – this being the ratio of Januzi). It requires consideration of all matters relevant to the reasonableness of relocation, none having inherent priority over the others

One way of approaching that assessment is to ask whether in the safe haven the applicant can lead “a relatively normal life without facing undue hardship … in the context of the country concerned”. That language derives from the UNHCR Guidelines and is quoted by Lord Bingham with approval in Januzi (para. 20) and also used by Lord Hope (para. 47); but it does not appear in the Directive or in Lord Bingham’s formulation of the test, and it should not be treated as a substitute for the latter. Rather, it is a valuable way of approaching the reasonableness analysis – “one touchstone”, as Lord Brown puts it (AH (Sudan) para. 42). Its value is because if a person is able to lead in the safe haven a life which is relatively normal for people in the context of his or her own country, it will be reasonable to expect them to stay there (AH (Sudan), para. 47).

It may be reasonable, and not unduly harsh, to expect a refugee to relocate even if conditions in the safe haven are, by the standards of the country of refuge, very bad. That is part of what is decided by Januzi itself, and the passages quoted at paras. 34 and 35 above reinforce it. It is also vividly illustrated by the outcome of AH (Sudan), where the House of Lords upheld the decision of the AIT that it was reasonable for Darfuri refugees to be expected to relocate to the camps or squatter slums of Khartoum. That may seem inconsistent with the suggested approach of asking whether the applicant would be able lead a “relatively normal life” in the safe haven; but the reconciliation lies in the qualification “in the context of the country concerned”.

Point (5) does not mean that it will be reasonable for a person to relocate to a safe haven, however bad the conditions they will face there, as long as such conditions are normal in their country. Conditions may be normal but nevertheless unduly harsh: this is the point emphasised by Lady Hale in AH (Sudan) and is exemplified by AA (Uganda).

The UNHCR Guidelines contain a full discussion of factors relevant to the reasonableness analysis. These are described by Lord Bingham as “valuable” and partly quoted by him (Januzi para. 20); and at para. 20 of her opinion in AH (Sudan) Lady Hale endorses a submission made in that case by UNHCR which summarises the factors in question. A decision-maker must consider those factors, so far as material, in each case (though it does not follow that everything said in the detailed discussion in the Guidelines is authoritative).

The assessment must in each case be conducted by reference to the reasonableness of relocation for the particular individual.

In his written submissions Mr Fordham identified “UNHCR’s core submission”. He said:

may, as one factor, consider what is ‘a relatively normal life’ in the context of the country concerned; but

must consider the conditions in the place of relocation against certain objective ‘baseline standards’; and

must consider the impact of the proposed relocation on the particular individual, having regard to that individual’s characteristics, personal circumstances and past experiences.”

Although I have ranged wider, it will be seen that my summary is essentially consistent with that submission. I would, however, sound a note of caution about the reference to “certain objective ‘baseline’ standards”. I would accept that the point made at para. 61 (6) above requires an objective judgment by the decision-maker, and also that it does imply some concept of a threshold below which it will not be reasonable to expect the individual to stay in the safe haven – that indeed is the burden of the passage from Dr Storey’s article approved by Lord Bingham in Januzi (see para. 38 above). But the particular terminology of “objective baseline standards” (Footnote: ³) is to my mind rather too suggestive of the Hathaway/New Zealand approach which the House of Lords has disapproved.

It is convenient to deal here with one central theme of Ms Naik’s submissions. She contended that, because the exercise required by article 8 of the Directive required the application of objective norms applicable to the conditions which a returnee would experience in the safe haven, comparison with the conditions experienced by others was irrelevant. That goes too far. Any assessment of reasonableness must be, in one sense, objective; but that does not preclude the comparison of the conditions which a returnee would enjoy in the safe haven with those that apply generally in the country in question, and the authorities positively require that such a comparison form part of the assessment.

Against that background, I turn to the effect of para. 42 in the speech of Lord Brown in AH (Sudan). As already indicated, I agree entirely with the passages which I have quoted from the decision of the UT in AAH: see paras. 52-55 above. In particular, I agree that Lord Brown cannot have been intending to enunciate a “significant minority test” in the sense which Mr Singh was understood to have been advancing in that case (Footnote: ⁴): that is, he was not saying that if it was established that a significant minority of people in the country in question lived in conditions of great hardship it necessarily followed that it was reasonable to expect a returnee to live in those conditions. Such a conclusion would have been contrary not only to what Lady Hale said in AH (Sudan), as argued by Ms Naik, but to the basic approach enunciated by Lord Bingham in both that case and Januzi and accepted by the other members of the House in both cases. As we have seen, Lord Brown said in terms that he endorsed every word of Lord Bingham’s opinion.

It seems to me clear, rather, that, instead of veering so inexplicably off-piste, Lord Brown was making a more limited point. The subject of para. 42 is, avowedly, a challenge by the applicants to a finding by the AIT that “people in Sudan generally live [at subsistence level]”. He does not in fact spell out what the challenge was, but it appears to have been that the evidence did not support the finding that a majority of people in Sudan lived at subsistence level. His point was that, even if that was so, it did not mean that living at subsistence level could not be regarded as relatively normal (Footnote: ⁵) in the context of Sudan. All that he was doing was to elaborate a little on what “relatively normal” – or its cognate, “prevailing generally” – entailed: conditions can be normal/general even if they apply to less than half the population.

So understood, what Lord Brown says in para. 42 of his speech seems to me, with respect, right; and my conclusion is reinforced by the fact that the speech as a whole was agreed with by Lord Hope and that this particular passage was endorsed by Buxton LJ in AA (Uganda) (Footnote: ⁶). As the UT puts it in AAH, the lived lives of the population of any country will “entail a diversity of experience”. Or, as the Tribunal put in the present case:

I wish to make one other point before leaving this part of the discussion. In my view it is contrary to the message of Januzi, as repeated in AH (Sudan), to pick on particular statements or phrases in any of the speeches in either case – or indeed in the UNHCR Guidelines, valuable though they are – and subject them to minute examination as if they had quasi-statutory effect, still less to treat them as giving rise to distinct “tests”. Lord Bingham went out of his way in AH (Sudan) to emphasise that the assessment of reasonableness was “one of great generality”: see para. 13 of his opinion. What is essential is that the decision-maker should conduct the kind of holistic assessment, encompassing all relevant considerations, which is required.

The question then is whether the Upper Tribunal in the present case did carry out the assessment required.

I start with its treatment of the law: see paras. 58-59 above. I can see no substantial difference between the analysis of the relevant parts of Lord Brown’s speech in AH (Sudan) at para. 37 of the Reasons and the analysis in AAH which I have said that I believe to be correct. Paras. 38-39 do not go much beyond that. Para. 40, in which the Tribunal states what it calls “the final principle that … flows from AH (Sudan)”, is rather more problematic. Mr Fordham contended that that paragraph erroneously treats Lord Brown’s observations “as laying down (1) a test to be met when considering the reasonableness of an IFA, and (2) a test determinative of the reasonableness of an IFA rather than describing a factor in the assessment” and that it made it “the starting-point in every assessment of reasonableness”. Ms Naik made submissions to essentially the same effect. Mr Fordham also contended that the examples given of conditions which might render relocation unreasonable – “crime, destitution, prostitution and the like” – were unduly specific and limiting and did not cover the range of matters which the Guidelines specified as relevant to the reasonableness assessment.

I see some force in those criticisms. I do not think that para. 40 of the Reasons falls into the crude error of treating as determinative the fact that the conditions which an applicant would experience in the safe haven are experienced by (at least) a significant minority of other people in the country: on the contrary, the Tribunal expressly acknowledges that even if that is the case there are the further questions to be considered which it identifies in the second part of the paragraph. But I do agree that its formulation could be understood to be prescribing a step-by-step analysis, in which the “significant minority” question comes first. That way of approaching the question will not necessarily lead to an error of law, but I think that it is unhelpful because it puts the focus on a particular element in the exercise and risks distorting its essentially holistic nature. I also agree that the range of relevant matters goes beyond the particular examples mentioned by the Tribunal. Having said that, it is necessary to read para. 40 in context. Despite some of the language used, I am not convinced that it was intended by the Tribunal as a definitive summary of the relevant law. It was directed very much to resolving the dispute between the parties as to the effect of Lord Brown’s speech in AH (Sudan), particularly in the light of AA (Uganda), and the structure and language reflects that focus. The real question must be what exercise the Tribunal in fact performed when it came to its dispositive reasoning, to which I now turn.

As to that, I have explained the structure of the Reasons at paras. 13-21 above. As there noted, in addressing what I have called issue (2), the Tribunal carefully reviewed the relevant evidence under the various heads relevant to the reasonableness issue, as identified in the UNHCR Guidelines; and it proceeded to make findings under each head before proceeding to the overall conclusion in paras. 230 and 241

I am not persuaded that the Tribunal fell into those errors. As regards the security risk, the passages quoted in connection with ground 1 clearly show that it applied an objective standard (notwithstanding its factual error) and did not proceed on the basis simply that the risk to returnees was no worse than for other inhabitants of Kabul. As regards the other factors, it would be surprising if it had taken a different approach, not least because the UNHCR Guidelines by reference to which it structured its reasoning are themselves couched in terms of objective standards; and although I have found no explicit statement to this effect my clear overall impression is that here too its finding was that the conditions under which the returnees would live in Kabul were, objectively, not unduly harsh. Ms Naik referred us in particular to para. 249 (para. 22 above), but I do not believe that that supports her case. Although it does indeed find that the Appellant would be “returning to living and humanitarian conditions in Kabul which affect the majority of the population” it goes on to make a distinct finding that “he could live a relatively normal life [there] without undue hardship”, and its overall finding was that it would not “be unreasonable or unduly harsh for [him] to internally relocate to Kabul”. Overall, I do not believe that the Appellant has demonstrated any error of law in the exercise performed.

I should also say that on the Tribunal’s actual findings the particular issue based on Lord Brown’s “significant minority” observations did not really arise. In the case of most at least of the elements which it considered it found that the situation in Kabul was no worse, or in some respects better, than in many other parts of Afghanistan. For example, at para. 199, having referred to maps showing the worst affected provinces by number of security incidents both absolutely and by reference to population, it found:

In support of her submission that the Tribunal had misdirected itself Ms Naik relied in part on the fact that the conditions which it had found that returnees to Kabul would encounter were in fact those of the poorest of the poor in Afghanistan, and she submitted that Lady Hale had said at para. 28 of her speech in AH (Sudan) that that was unacceptable. That is a misreading of the passage in question (and also an example of the approach which I deprecate at para. 68 above). Lady Hale’s reference to “the poorest of the poor” was made as part of her rejection of the idea that as long as there were other people living in the same conditions as the returnees would encounter it would be reasonable to expect them to endure those conditions, however bad (at any rate if they were above the article 3 threshold). That is (with respect) plainly right; but it is not the same as saying that it will be automatically unreasonable for returnees to live at the level of the poorest part of the population.

Ms Naik also criticised the Tribunal for rolling up what she said were the distinct questions of reasonableness and undue harshness. I do not accept that criticism. These concepts are two sides of the same coin. As Lord Hope put it in Januzi, “the words ‘unduly harsh’ set the standard that must be met for [relocation] to be regarded as unreasonable” (see para. 47 of his speech).

Neither in her skeleton argument nor in her very brief oral submissions on the point did Ms Naik develop head (b) any further than my summary at para. 60 above. Mr Singh in his skeleton argument acknowledged that there was no express reference in the Reasons to the difference between the Appellant’s life in Laghman and his life as it would be in Kabul, but he submitted that it was not a factor of sufficient weight to require specific mention. He said that “the conditions in Laghman as disclosed by the documentary evidence were uncontroversial” and noted that there was no suggestion

Given the sparse nature of those submissions I can only deal with this point shortly. It is hard to think that there would not be a real difference between the Appellant’s life in Laghman, which is a largely rural province (though close to Kabul), and the life which he would lead in Kabul; and in principle that is a relevant consideration in assessing the reasonableness of relocation. I think it extremely unlikely that the Tribunal simply ignored this aspect (which is of course expressly referred to in AH (Sudan)); and it would have been better if it adverted to it in some way. But it certainly cannot be assumed that life was, or would be, better for the Appellant in Laghman (even leaving aside the risk of persecution to which he was subject there) than it would be in Kabul, whether in terms of security risk or living conditions:

For the reasons given I would allow the appeal on ground 1 but dismiss it on ground

In those circumstances it seems to me that the remittal to the Upper Tribunal can and should be on the basis that it need reconsider its conclusions only on the question of the extent of the risk to returned asylum-seekers from security incidents of the kind considered at paras. 190-9 of its Reasons. Although of course the relevance of that risk is to the overall issue of whether it is reasonable for asylum-seekers to be expected to relocate to Kabul, it is in practice a self-contained element within that assessment, and since I would hold that there was no error of law in the Tribunal’s approach to the other elements I see no reason why those elements require to be reconsidered.

The fact that the remitted issue is self-contained means that there would be no difficulty in it being heard by a differently-constituted Tribunal; and I think that in the circumstances of the present case, given the nature of the error on ground 1, that would be the correct course. A fresh Tribunal would of course not be privy to the evidence called on the previous occasion, or the submissions made; and that would mean that the evidence as to security risk adduced at the previous hearing would have to be adduced again (unless agreed), together with any updating evidence that might now be available, and further submissions made. But the scope of the remitted hearing would still be far more limited than first time round.

Those limits on the scope of the remittal are subject to one important qualification. We were told that last year, after the decision of the Upper Tribunal, UNHCR produced further Guidelines on returns to Afghanistan, which, unlike the 2016 version, unequivocally recommend that “given the current security, human rights and humanitarian situation in Kabul, an IFA/IRA is generally not available in the city”. It will be for the Tribunal, no doubt after hearing submissions, to consider whether that assessment requires a reconsideration of its country guidance on a more extensive basis than is required by the remittal of this appeal. If it decides that it does, it is likely to make sense either for the scope of hearing to be increased or (which may be procedurally more correct) for the remittal in this case to be heard along with whatever appeal is the vehicle for that wider consideration.

I agree.

I also agree.