COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: AA/02060/2008]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
| ZH (AFGHANISTAN)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr R Kellar (instructed by the Treasury Solictors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"36. The appellant is a minor and professes to be an orphan. There is no material challenge to these as facts, it is not possible to return him to Afghanistan to family or make arrangements for his reception there. The Secretary of State has decided to give him exceptional leave to remain…
37. The appellant is a member of a particular social group, as a child without family in Afghanistan, and is at risk of persecution as a member of that demographic. The caselaw directs that he is at risk of persecution for Convention reason and that there is no sufficiency of protection though there are agencies charged with looking after street children in Afghanistan."
"For these reasons, I am satisfied that the Immigration Judge made a material error of law in approaching this appeal on the basis that the appellant was an orphan. The correct basis upon which she should have assessed the risk to this appellant was on the basis that the appellant's account as to the true circumstances in which he left Afghanistan had not been told to her and, in particular, that his father died in the circumstances he claimed or that his brother died in those same circumstances. Nor was there credible evidence that his mother had died or could no longer traced."
Having referred to the case of LQ and pointed out that in that case there had been a specific finding of fact that the appellant was an orphan, Senior Immigration Judge Jordan said in paragraph 20:
"It seems to me that there are overwhelming difficulties in an appellant whose account has been comprehensively rejected from succeeding in a claim for international protection. The recognition that a person is a refugee is established on a case-by-case basis, paying close regard to the individual circumstances of each claimant. As a result of the adverse credibility findings made by the Immigration Judge, there was no credible evidence as to the appellant's true circumstances, including the circumstances in which the appellant came to leave Afghanistan. It does not seem unreasonable to infer that if the claimant based his claim upon a series of untruths, he did so because, had the truth been told, this would have prejudiced the success of his claim. When a claim such as this has been dismissed by the Judge, it is difficult to see on what factual basis a claim for asylum can be advanced. It is entirely the responsibility of the appellant that his history remains in the dark. It is simply speculation to advance a claim which arises, phoenix-like, out of the ashes of his discredited account."
"The appellant in the present appeal has not overcome the first hurdle of establishing that he is a refugee because he has not established that he would be at risk. Mr Vokes submitted that it would be entirely speculative to assume that the appellant would be able to find his parents, or that his parents (or either of them) were in Kabul (the destination of his return) and that the evidence establishes he will be on his own in Kabul. I disagree [that] the appellant has established such a risk. It would have been open to the appellant at any stage to have disavowed his earlier untruthful account and to provide the Secretary of State with full details of his parents' whereabouts, as he knew them to be and explain why he could then not then be returned. His failure to do so means there is an evidential lacuna which only the appellant himself can fill. He has not established that his father is dead. He has not established he has no contact with him or that his father cannot travel to Kabul to collect him. He has not established his mother's whereabouts or that he is unable to contact her. No proper inferences can be drawn in relation to any of these matters. Accordingly, the appellant has failed to establish that he is at risk of serious harm or any risk of harm were he to return to Afghanistan. Were he to have done so, the issue would then arise as to whether the risk of harm may properly be classified as a Convention reason by reference to principles of his membership of a particular social group."
"The Secretary of State cannot force a minor appellant to disclose the presence of his parents and may have no means himself of identifying them. Further, the Secretary of State cannot deposit a child at a distant airport without making arrangements for the child's care. The child himself may well obstruct those arrangements by not revealing his domestic circumstances. That does not mean that by reason of the minor's failure to reveal his true circumstances, he has rendered himself a Convention refugee."
Lord Justice Rimer:
Order: Application refused