Case No: C4/2005/0275/and 0275A
Neutral Citation Number: [2005] EWCA Civ 1603
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
HX/56454/2003
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 20th December 2005
Before :

LORD JUSTICE BROOKE
Vice-President of the Court of Appeal (Civil Division)
LORD JUSTICE BUXTON
and
SIR PAUL KENNEDY
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Between :

	GH (Afghanistan)	Appellant	
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	Secretary of State for the Home Department	Respondent	

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(Transcript of the Handed Down Judgment of
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Manjit S Gill QC and Basharat Ali (Solicitor Advocate) (instructed by Aman Solicitors Advocate) for the Appellant
Elisabeth Laing (instructed by the Treasury Solicitors) for the Secretary of State

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Judgment
Lord Justice Brooke:  This is the judgment of the court, to which Sir Paul Kennedy has made a major contribution.

Introduction.
1.	This is a claimant’s appeal from a decision of the Immigration Appeal Tribunal which was notified to the parties on 21st December 2004.  At the end of the hearing before this court on 28th November 2005 the appeal was allowed with costs (subject to detailed assessment) because we were not satisfied that the case which Ms Laing, for the respondent Secretary of State, sought to advance was ever properly deployed before the Immigration Appeal Tribunal.  
Facts.
2.	The appellant was born on 12th March 1960, so he is now 45 years of age.  He is an Afghan of Tajik ethnicity, who claims to have fallen foul of the Taliban.  He says that he worked in a bank, and was demoted.  He claims that he was a member of a political group called Jamiat-e-Islami, and was about to be arrested when he fled with his wife and five children to Panjshir.  He then worked for the Mujahideen in an arms depot, and was on three occasions sent to fight in the war zone.  He feared that he would be killed and his family would be left destitute, so he fled.  On 26th November 2000 he and his family arrived illegally in the United Kingdom, and he then claimed asylum.  His application for asylum was refused by the Secretary of State in a decision letter dated 24th April 2002.  The Secretary of State did not believe that the appellant was persecuted by the Taliban or the Mujahideen.  He understood the appellant’s reluctance to live in Afghanistan, but did not accept that he had any reason to fear persecution.  The appellant then appealed to an adjudicator.
Before the Adjudicator.
3.	The appeal was heard in November 2003, and the determination promulgated on 8th December 2003.  The appellant accepted that the situation in Afghanistan changed dramatically in November 2001 when the Taliban fell, but he claimed to be still at risk from the Mujahideen, whom he deserted in their hour of need, and he asserted that his wife and daughter would suffer because of the resurgence of fundamentalism in Afghanistan.  In evidence the appellant said that he had no contacts in Kabul and he would need to get a job.  All of his children had done well at school in England, and had been assimilated into British culture. 
4.	Objective evidence placed before the adjudicator showed that the situation in Afghanistan was far from satisfactory.  The central government controlled Kabul, but outside Kabul the situation was variable, and so uncertain that it was not contemplated that failed asylum seekers should be sent outside the capital.  The adjudicator recognised that the Country Assessment before him was for April 2003, and the report of a Danish Fact Finding Mission related to a period in September/October 2002 so, in a fluid situation, both reports might be out of date.  The Country Assessment noted that the humanitarian situation in Kabul was improving, but remained grim.  Summarising the content of the two reports before him the adjudicator said at paragraph 17 -
“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.”
5.	The adjudicator found that the appellant’s account of his reasons for leaving Afghanistan was basically true, but was not satisfied that the appellant would be at risk from the Mujahideen, or as a Tajik or a member of Jamiat-e-Islami  if he returned.  The asylum claim therefore failed.  But there was also an appeal under the European Convention on Human Rights, and as to that the adjudicator said at paragraphs 20 to 21 -
“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.”
6.	The adjudicator declined to make any direction because he recognised the situation in Kabul to be volatile, and he also recognised that the information before him might be somewhat out of date.  He did not therefore want to tie the hands of the Secretary of State if changes on the ground might lead to a different conclusion as to the impact of Article 3.
The Grounds of Appeal to the IAT.
7.	The Secretary of State sought leave to appeal against the decision of the adjudicator on three grounds.  The first ground of appeal related to the adjudicator’s evaluation of the appellant’s prospect of employment.  It is no longer relied upon, but grounds 2 and 3 read -
“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.”
8.	As to ground 2, we fail to see how it could be said that in this case the asylum claim and the Human Rights claim were “essentially based on the same facts”.  The asylum claim relied on allegations as to past treatment by the Taliban and the Mujahideen, and the prospect of future treatment by the Mujahideen,  whereas the Human Rights claim was based on the general conditions currently prevailing in Afghanistan and the impact of those conditions upon the appellant’s family.  
9.	Ground 3, on the face of it, is simply a complaint that the adjudicator failed adequately to set out his reasons for concluding as he did, which is a little surprising because paragraphs 20 and 21 of his determination seem to us to make his position entirely clear.  Rightly or wrongly he was saying that the conditions in Afghanistan (and in particular in Kabul) were such that to return this family there would be inhuman or degrading, and Article 3 provides that -
“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.
10.	Permission to appeal was granted and the IAT heard the appeal on 27th September 2004, but did not give notice of its determination until 21st December 2004.  In paragraph 6 the Tribunal said -
“We agree with ground 2 in the sense that the adjudicator failed to apply Kacaj [2002] 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.”
11.	As to the first sentence of that paragraph we regard the criticism as misplaced, because, as we have already said, the same facts were not relied on to support both claims.  Thereafter the Tribunal accepted, in our judgment rightly, that having dismissed the asylum claim the adjudicator was entitled to go on to consider whether there was a viable claim under Article 3, but he is said to have applied the wrong test, and in paragraph 7 the Tribunal explains why -
“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.”
12.	The problem which we face is to relate that paragraph to any of the three grounds of appeal, none of which say anything about the height of the threshold which must exist before an expelling country can be found to be in breach of its obligations under Article 3.
13.	In paragraph 8 the IAT says that the error of law was due to the Adjudicator’s “use of the wrong standard of proof”.  That does not seem to us to be helpful, because there seems to have been no issue as to the standard of proof, but, having found an error of law, the Tribunal then set out to consider the objective evidence currently available and concluded in paragraph 13 -
“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.
14.	There are a number of recent decisions of this court which make it clear that as the IAT (prior to its abolition in April 2005) could only entertain an appeal on a point of law (see section 101(1) of the Nationality Immigration and Asylum Act 2002) it was necessary for a point of law to be discernible in the grounds of appeal when permission to appeal was given (see Miftari v SSHD [2005] EWCA Civ 481 at [21] to [24], R(Iran) v SSHD [2005] EWCA Civ 982 at [55] to [58] and ZT v SSHD [2005] EWCA Civ 1421 at [8]).   Those cases have however to some extent left uncertain the status of the separate rule expressed for asylum cases by Lord Woolf MR giving the judgment of this court in R v SSHD ex p Robinson [1998] QB 928 at p 946C:
“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.”
15.	It will be appreciated that an obligation on a tribunal to pursue a point of law not raised by the party whom the point favours is a very unusual feature of an adversarial system, which is what the immigration appeals system is.  Only in very limited circumstances does an obligation, as opposed to a power, to take points of its own motion arise in the equally adversarial world of civil litigation: see e.g. Schmidt v Wong [2005] EWCA Civ 1506 at [8].    In a public law context there may also be a public interest involved, over and above the interests of the competing parties.  In E and R v SSHD [2004] EWCA Civ 49, [2004] QB 1044, for instance, Carnwath LJ explained at [64] how in some public law contexts there is a public interest in ensuring that decisions are taken on the best available information.  In an asylum context there may be a public interest in ensuring that this country complies with its international obligations.
16.	The obligation identified in Robinson can therefore be best explained as an aspect of the duty of the court to give anxious scrutiny to the claim of an asylum-seeker, because as Lord Woolf says failure to afford asylum to a person obviously entitled to it would be a breach by this country of its obligations under the refugee Convention.  So stated, the doctrine would appear to be only available for the assistance of the asylum-seeker, but a modest extension of it was made by this court in A(Iraq) v SSHD [2005] EWCA Civ 1438, where it was apparent on the face of the adjudicator’s decision that the asylum-seeker fell under Article 1F of the refugee Convention, as a person who had committed a serious non-political crime in the country of origin before coming to the UK.  This court accepted that because of the mandatory terms of Article 1F the United Kingdom, if it did not enforce that rule, would, equally as in Robinson, be in breach of its positive obligation under the refugee Convention not to accord asylum to a person whom the Convention expressly excludes.   Accordingly, if that point was or should have been obvious to the Adjudicator on the facts he should have taken it of his own motion.  
17.	It remains undecided how much further, if at all, that approach can be relied on by the Secretary of State to complain of a failure by the court to take points that the Secretary of State had not taken.   For our part, we would wish to come to that question with considerable caution, not least because the inequality of resources between the government and the average asylum-seeker makes it unattractive for the Secretary of State to appeal to a forensic indulgence originally formulated in favour of the asylum-seeker.   It is not necessary to pursue that enquiry in the present case, because no extension of the Robinson jurisprudence in favour of the Secretary of State can apply here.   That is because the present case concerns not the refugee Convention, but the European Convention on Human Rights.   In contrast to the provisions of Article 1F of the refugee Convention, the signatory state to the ECHR has no positive obligation to refuse relief in any case.  If, therefore, as is alleged to have occurred in this case, the state purports to grant relief under an article of the ECHR when properly understood such relief is not available, the state, in contrast to the position in A(Iraq), commits no breach of the international instrument that it purports to be applying.  Accordingly, the overriding obligation to prevent such breaches that was identified in A(Iraq) does not exist.
18.	It should however be noted that even if an “obvious” point of law has been missed by the Adjudicator, and by the Secretary of State when drafting his grounds of appeal, it can, under the procedure envisaged in Miftari (at [26]), be picked up on the grant of appeal (possibly, in an exceptional case, by way of amendment permitted at the appeal hearing itself: see R(Iran) v SSHD [2005] EWCA Civ 982 at [58]), and added to the grounds.   
19.	In this case Miss Laing submits that the Adjudicator erred in law in that he failed to take account of the Strasbourg jurisprudence as to the obligations of an expelling state in relation to Article 3, including in particular D v UK 24 EHRR 423.  That jurisprudence, she submits, recognises that failed asylum-seekers will often be returned to countries where the living conditions are far from satisfactory, but only in rare and exceptional cases will it be possible to say that to return a failed asylum-seeker to his home country will amount to a breach of Article 3.  In paragraph 24 of her skeleton argument Miss Laing says-
“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).  
20.	That is sufficient to dispose of this appeal.  It fails on jurisdictional grounds, but even if that hurdle could have been overcome we are by no means satisfied that the Secretary of State would have been able to succeed.  This is not a medical treatment case of the kind considered by the House of Lords in N v SSHD [005] UKHL 31, [2005] 2 WLR 1124, and by this court in R (Rodriquez-Torres) v SSHD [2005] EWCA Civ 1328.  For the purposes of this case it was not necessary for the Adjudicator to compare conditions here and in Afghanistan.  All that he had to do was to look at conditions there and consider their probable impact on this family, bearing firmly in mind that failed asylum-seekers do often have to be returned to a country where conditions are worse than those which they have experienced in the UK.  It is at least arguable that that is what the adjudicator did, but as we did not hear submissions in relation to that aspect of the case we need say no more about it.
Conclusion.
21.	For the reasons we have given we would allow this appeal, quash the decision of the IAT, and restore the decision of the Adjudicator.  That of course does not mean that the appellant is entitled to remain here with his family indefinitely.  The Secretary of State is free to re-consider at any time whether the conditions prevailing in Afghanistan are such that it would be appropriate for the appellant to be returned.