COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE BUXTON
SIR PAUL KENNEDY
| GH (Afghanistan)
|- and -
|Secretary of State for the Home Department
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Official Shorthand Writers to the Court)
Elisabeth Laing (instructed by the Treasury Solicitors) for the Secretary of State
Crown Copyright ©
Lord Justice Brooke: This is the judgment of the court, to which Sir Paul Kennedy has made a major contribution.
Before the Adjudicator.
"There is no urban sanitation system, no sewage treatment, a shortage of water aggravated by a failure of the infrastructure (pipes not being mended or renewed), there is a huge influx of returning refugees vastly overwhelming the available accommodation which is 'not sufficient to meet the demands of residents and those returning. As a result thousands get by in tents, inside commercial containers with holes cut for windows, but mostly through extended family networks'.. the Assessment … is starkly 'most residents face a difficult daily struggle to survive' and the Danish Fact Finding Mission … quotes the UNHCR as saying that 'fundamental protection is dependent upon personal and social networks' and goes on 'in the towns a network in the neighbourhood is necessary in order to get protection. As regards personal networks in the town, many of the people who have returned and do not have a network are especially at risk of being raped and assaulted…. it is even worse in the rural areas …' and it further goes on 'persons or families without networks are extremely vulnerable and exposed. There is no judicial or police protection in the country .. '(I think this means countryside). I note, however, that at a later point it goes on 'if a person does not have a family that person is in danger of not being able to receive help or assistance. There may be difficulties, however, the person is not in any real danger' (this is a quote from CCA-the Cooperation Centre for Afghanistan). There are reports of a particularly unpleasant crime wave operating in west Kabul with the tacit approval if not actual participation of some police."
"I find that this man has no family or social network in Kabul. Indeed the situation seems to be that with the possible exception of his mother (if she is still alive) he has no one in Afghanistan to whom he could turn. He would, therefore, if returned to Kabul at the present time with his wife and five children be reduced either to living in a tent in a refugee camp or as the Country Assessment starkly puts it in a container with holes knocked in the side to act as windows. He is a man of 43 years of age who with a brief period with the Mujahideen at a very low level (mostly looking after the stores) has only ever worked in banking. He would not therefore be likely to obtain work in the reconstruction of Kabul. There is no evidence before me of any demand for somebody with his particular skills which are in any event somewhat out of date by now. He would find it difficult to get work. He would be competing with others for scarce resources of food and water as well as accommodation to which I have already referred.
I cannot ignore the interests of his children or his wife who are dependent upon this application. I was not referred to any policy of the Respondent whereby it refrained from returning Afghans to Kabul even in a situation such as this where the interests not merely of two adults but of five young (some of them very young) children are concerned. It would seem on the balance of the evidence that the circumstances to which they would be returned would be grim. I have to ask myself whether it would be inhuman or degrading now (and I stress 'now') to return them to Kabul. On balance with considerable hesitation I have taken the view that it would be. Accordingly the return of this family taken as a whole would breach Article 3 of European Convention on Human Rights."
The Grounds of Appeal to the IAT.
"2. The Asylum claim and the Human Rights claim were essentially based on the same facts, having dismissed the asylum appeal there was no basis on which to allow the appeal.
3. In the alternative, it is submitted that the Adjudicator has failed to explain how a return to 'grim' circumstances (paragraph 21) amounts to a breach of ECHR Article 3. It is submitted that returning Afghans with no well founded fear of persecution to Kabul cannot in itself be a breach of ECHR Article 3."
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
The final sentence of the third ground of appeal does not seem to us to be of much assistance. We have no difficulty in accepting that returning Afghans with no well founded fear of persecution to Kabul cannot "in itself" be a breach of Article 3. The adjudicator did not suggest otherwise. He only found that it would be a breach to return this family at this time having regard to the conditions which he understood to prevail in Kabul and in Afghanistan.
Before the IAT.
"We agree with ground 2 in the sense that the adjudicator failed to apply Kacaj  Imm AR 213 to this appeal, in that where the same facts are relied to support a claim under the 1951 Convention and the 1950 Convention a claimant's Article 3 appeal stands or falls with the asylum appeal. What the adjudicator appears to have done in this case is to consider a residual claim under Article 3 of the ECHR by way of the circumstances prevailing in Afghanistan, which he described as grim, in order to allow the appeal. There was nothing wrong with the adjudicator's approach. His error however was to apply the wrong test."
"In our opinion the test is not whether the circumstances are grim, but whether the circumstances to which the respondent and his family will be returning meet the high threshold of Article 3. Because the Adjudicator applied the wrong test, he failed to explain how the 'grim' circumstances meet that threshold. To be fair to the Adjudicator he was not assisted in his task due to the fact that the objective evidence, which he had to consider, was out of date."
"The objective evidence does not show that the circumstances in Kabul are grim. Had the adjudicator had the benefit of up to date objective evidence we believe that he would not have come to the conclusion that he did. In the light of the objective evidence we find that returning the respondent and his family to Kabul in Afghanistan would not lead to a breach of his Human Rights under Article 3 of the ECHR. Accordingly the appellant's appeal is allowed."
Of course the Tribunal was only entitled to have regard to the objective evidence currently prevailing once it was satisfied that the adjudicator had erred in law, and it is said on behalf of the appellant in this court that the tribunal was not entitled to reach that conclusion because no relevant error of law was identified in any ground of appeal.
The Jurisdictional Issue.
"If when the Tribunal reads the Special Adjudicator's decision there is an obvious point of Convention law favourable to the asylum-seeker which does not appear in the decision, it should grant leave to appeal. If it does not do so, there will be a danger that this country will be in breach of its obligations under the Convention. When we refer to an obvious point we mean a point which has a strong prospect of success if it is argued. Nothing less will do."
"The Adjudicator in this case, like the Adjudicator in Miftari did err in law and .. that error (is) apparent on the face of the determination. The key error is that he did (not) recognise that an expulsion case raises different considerations from a domestic Article 3 case in which the state is itself responsible for the treatment which is said to infringe the standards of Article 3. In the latter case, the language of Article 3 can be said to (be) the starting point, at least, for the applicable legal test. However in the former case, there must be something exceptionally compelling about the facts so as to engage the responsibility of the expelling state. In particular, a disparity in the social, medical and other forms of assistance in the two states is not by itself sufficient."
Whichever way it is expressed we accept that the submission identifies a point of law, but to our minds it is clear that the point of law which Miss Laing now identifies and seeks to develop cannot be found in the grounds of appeal to the IAT (see paragraphs 7 to 9 above).