Case No: C4/2010/0755 
Neutral Citation Number: [2011] EWCA Civ 205
IN THE COURT OF APPEAL  ( CIVIL DIVISION )
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEATSON)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 18th January 2011

Before:

LORD JUSTICE WARD
LORD JUSTICE ELIAS
and
LORD JUSTICE TOMLINSON
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Between:

	The Queen on the application of SS ( Afghanistan ) 	
Appellant	
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Secretary of State for the Home Department 	

Respondent	
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Mrs Usha Sood   (instructed by Messrs French and Co) appeared on behalf of the Appellant.

Mr David Manknell (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
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Judgment

Lord Justice Tomlinson:

1.	The applicant, SS, is an Afghan asylum seeker.  This is a renewed application for permission to appeal against a decision of Beatson J.  There was before Beatson J a renewed application for permission to apply for judicial review of a decision of the Secretary of State.  The decision of which judicial review was sought was the refusal of the Secretary of State to treat the applicant's representations made on 8 July 2009 as a fresh claim pursuant to paragraph 353 of the Immigration Rules.  That paragraph states that, when a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision-maker will consider any further submissions and if rejected will then determine whether they amount to a fresh claim.  The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered.  Submissions will only be significantly different if the content had not already been considered and, taken together with the previously considered material, created a realistic prospect of success notwithstanding their rejection by the decision maker.

2.	The significance of the Secretary of State's determination that the submissions did not amount to a fresh claim was that rejection of the submissions did not amount to an immigration decision attracting a right of appeal.  

3.	It will be apparent from that introduction that the applicant's initial claim of asylum had failed.  His claim was refused by a decision letter of the Secretary of State dated 30 August 2002.  Although an appeal against that decision was allowed by an adjudicator in January 2003, in December 2003 the appeal of the Secretary of State against that decision was itself successful.  An application for permission to appeal against that determination was refused by the Court of Appeal, and the applicant's appeal rights had become exhausted by 16 January 2004.  

4.	In April 2004 the applicant, SS, was listed as an absconder.  He was detained in February 2006 for the purpose of removal, but removal arrangements were cancelled on one occasion due to there being a lack of escorts, and on another occasion the removal arrangements were cancelled because the applicant became disruptive.

5.	In May 2006 medical submissions were made on his behalf and refused, but notwithstanding that in June 2006 the applicant was released from detention on medical grounds.  Further submissions on medical grounds were made in 2008 and refused in March 2009.  

6.	The applicant, SS, was born on 5 October 1983.  His father was a person who worked with and possibly for General Abdul Malik, an Afghan warlord.  His father held the role of Commissioner of Police.  The asylum claim initially made was based upon the circumstance that his father may have assisted or facilitated the successful entry of General Malik with Taliban support into the northern city of Mazar-e-Sharif in May 1997.  This had the effect of removing another Afghan warlord, Rashid Dostum, from his position as the dominant power holder in the central area of northern Afghanistan.  The suggestion was that the applicant, SS, would be a person against whom General Dostum would harbour a grievance because of the connection of his father with Dostum's arch-rival, General Malik.  Indeed in February 2002 General Dostum or his forces arrested both the applicant and his father.  It is said by the applicant that his father was subsequently killed by or at the instigation of General Dostum, and his understanding in that regard has not been challenged.  SS himself escaped from his arrest by General Dostum.  He entered the UK clandestinely in July 2002 and made the claim to asylum the refusal of which I have already mentioned.

7.	The underlying factual situation is further confused by the fact that General Malik, having first enlisted Taliban support, subsequently later in 1997 betrayed that support and is said to have been responsible for the death of several thousand Taliban fighters.  Although we do not have in our papers the Secretary of State's decision letter of 30 August 2002, it is apparent from the papers that we do have that the claim to asylum was based both upon fear of reprisal from General Dostum and fear of reprisal from the Taliban, in each case because of the connection of the applicant's father with General Malik.  However, reliance upon the threat from the Taliban was evidently undermined by the applicant's own account that he had been detained by the Taliban in 1998 and that, whilst the position of his father had been ascertained, he had himself been released unharmed.  It was no doubt for this reason that, by the time the application reached the Immigration Appeal Tribunal, the focus was upon the risk from General Dostum.

8.	The Immigration Appeal Tribunal (composed of Mrs Gleeson and Mr Bremmer) dealt with that contention, that is to say the risk of reprisal from General Dostum, principally at paragraphs 10 and 11 of their determination.  I should mention that there was before the Immigration Appeal Tribunal a report which had been prepared on the applicant's behalf by Dr Antonio Giustozzi, a research fellow at the London School of Economics and Political Science in its Development Studies Institute, which was based upon a visit to Afghanistan in April and May of 2003 for the purpose of carrying out research for a project on origins, development and future prospects of the private militias in Afghanistan.  The Tribunal records at paragraph 8 that it had been greatly assisted by the findings in that report.

9.	At paragraph 10 the Tribunal said this: 

"In relation to the power of General Dostum and his party Junbesh-i-Melli to attack him [that is to say the applicant] in Kabul, the relevant paragraphs are paragraphs 7 and 8 of Dr Giustozzi’s expert report "

10.	And the Tribunal then cites those paragraphs, which read as follows under the rubric “Junbesh i-Melli in Kabul”:

"7. Kabul is today under the control of Jamiat-i-Islami which has a near monopoly over all the security services, including the army, the police and intelligence.  However, Junbesh maintains a low-profile presence in Kabul, with just some party offices, which it established over the last 12 months.  The only overt armed presence of this party in Kabul is represented by a small number of bodyguards, in charge of the security of the offices and of the leading party members in the city, including some ministers of the Karzai administration.  Considering what I stated above with regard to Dostun's political ambitions, it is therefore unlikely that [SS] would experience a serious threat from this quarter. 

8.  However, the rule of General Malik and his group over northern Afghanistan during May-September 1997 was very controversial and was accompanied by much bloodshed, both of members of Junbesh loyal to Dostun, of Malik's former Taliban allies and even of some members of Jamiat. During his stay in Kabul, Malik maintained a low profile and was protected by his bodyguards.  In Afghan culture, revenge is a moral obligation for male family members of victims and military commanders in particular tend to be keen on it, as they need to maintain their reputation of fearless warriors.  Therefore, while the political leadership of Junbesh, including General Dostun, is unlikely to have much interest in [SS], some local commanders might, depending on the past actions of [SS's] father and especially if it was not possible to target the father directly, because he is already dead or because he has sought refuge elsewhere."

11.	The Immigration Appeal Tribunal then continue at paragraph 11 of their determination:

"It is clear from that passage that as the son of a person whose father was involved with General Malik the risk today is very low unless General Dostun was unable to exact revenge on his father. The respondent's [that is to say the applicant before us] case throughout has been that in February 2002, General Dostun arrested and killed his father and revenge has therefore been exacted.  Further, having regard to the totality of the evidence it emerges that General Malik himself was resident in Kabul as at the date of determination and over the period April 2002 until early 2003 at least a month after the date of this determination."

12.	I should refer also to paragraphs 16 and 17 of the determination of the IAT in December 2003, which read as follows:

"16. The only characteristics [that is to say the characteristics peculiar to the applicant] relied upon were the respondent's status (a person who had escaped from detention by General Dostun) and the possibility that he might have to keep his head down.  In relation to Kabul, the possibility of an attack by General Dostun or his followers is remote.  The respondent's own evidence indicates that there is nothing more than a token office and that such armed persons as are in Kabul on General Dostun's behalf are defending that office and the leading party members in the city, and are not interested in pursuing General Dostun’s former enemies.

17. There is no evidence whatsoever that they are interested in pursuing the family members of his former enemies, except perhaps where revenge could not be exacted against the enemies themselves.  As we have already stated, the respondent's case is that General Dostun has already taken the opportunity to kill the respondent's father and that therefore revenge has been properly exacted."

13.	The representations made to the Secretary of State in July 2009 rested on a report from Dr Marsden of 5 June 2009, to which I will refer as “the first Marsden report”.  Dr Marsden first sets out his qualifications, which are that he had been since the beginning of 1989 working full-time as Information Coordinator to the British Agencies Afghanistan Group and since June 2005 as Research and Information Adviser to the British Agencies Afghanistan Group.  In his previous role he had managed a team of three staff to support the British aid effort in Afghanistan.

14.	He describes his frequent visits to Afghanistan and sets out and refers to the fact that the deteriorating security situation in that country had seriously constrained his visits in more recent times.  He last visited Afghanistan in August 2004.  As Beatson J points out at paragraph 5 of his judgment, the first part of Dr Marsden's report deals with the history and background of the situation in Afghanistan and the second half addresses the particular position of the claimant.  That second half starts at paragraph 39 of the report, which is to be found at page 13 of its internal numbering and runs through to page 21.  As Beatson J sets out, paragraph 39(d) of the report refers to the primary risk arising from the fact that the applicant's father may have facilitated the successful entry of General Malik into Mazar-e-Sharif.  Paragraph 39(d) reads in part:

"General Dostun may, therefore, have good reason to continue to feel aggrieved over the actions of [SS’s] father and may, subject to considerations of his own power and influence within the current Afghan government, have an interest in targeting [SS], notwithstanding that [SS]’s father may have already been killed by his militia. It is important to note, in this regard, that General Dostun has a reputation for serious human rights abuses and for particular ruthlessness. He would, therefore, have no hesitation in killing [SS] if other considerations did not dictate otherwise. It should be noted in this regard that, although President Karzai has maintained a certain distance from General Dostun, because of his human rights record, Dostun has sought respectability and this has been rewarded through various defence-related posts of a largely honorary nature. It is therefore difficult to assess whether General Dostun would risk undermining this by actively seeking [SS]. It should nevertheless be noted that his decision to imprison hundreds of Taliban prisoners, in the autumn of 2001, in conditions which were likely to lead to their deaths and to do so under the watch of U.S. forces, showed little regard for his international reputation. It would also not be difficult for General Dostun to arrange for [SS] to be killed without this being traced back to him. On the other hand, some of his commanders, within the Junbesh militia, may be influenced solely by their desire to avenge Abdul Malik’s treachery and, while Abdul Malik may be too well protected to represent an easy target, may see an opportunity through [SS]’s inability to protect himself, to act out their revenge. It should be stressed that it would be difficult for [SS] to escape detection if he was being actively targeted. It should be noted , in this regard, that, given the absence of a rule of law in Afghanistan, the individual is very dependent on family members to accord him a degree of protection. The individual is therefore placed at considerable risk if he seeks to live in an area of Afghanistan where he does not have family links. In addition, a lone individual arriving in an area immediately provokes concern. It is difficult not to arouse suspicion as a stranger in Afghanistan, and questions would be asked as to [SS]’s origins and personal history.”

15.	At paragraph 41B of his report Dr Marsden deals further with the particular risk to which he considered SS would be exposed. He says this:

"41B.  With regard to paragraphs 10 11 and 17 of the Determination and Reasons, it should be noted that there has been, for many decades, a pronounced labelling process in Afghanistan so that people have been identified with members of their families who have taken particular positions or brought harm to others by virtue of their power they wielded.  The individual is thus identified by association with his relatives and it is common practice for revenge attacks to be undertaken against male relatives if the original perpetrator of the action is no longer alive or to be found.  It is also important to note that the desire to take revenge can pass through the generations, particularly if the original action which led to such a desire was especially serious.  Given that the technical, logistics and strategic support provided by [SS]’s father may have been of significant benefit in enabling General Malik to capture and subsequently facilitate the entry of the Taliban into Mazar-e-Sharif, those who may seek to avenge his role may regard it as sufficiently serious to take revenge against [SS ]as his son.  

I do not regard paragraph 7 of Dr Giustozzi’s report as necessarily indicating that the risk to [SS] of being actively targeted by some local commanders is a low one. As he notes, the wish of such commanders to actively target [SS] is dependent on the past actions of his father. As these actions were of a potentially very serious nature, the risk to [SS] may be a high one. [SS] may also be at risk from the Taliban on account of the thousands of Taliban who died in Mazar-e-Sharif after General Malik withdrew his allegiance to the Taliban. It should be noted, in this regard, that the Taliban will have a network of informants within the capital and that, through normal questioning by neighbours that [SS] will face and through the active rumour mill, information on his father’s links to General Malik may reach them. In such an eventuality, he would be at risk of a revenge attack. This possibility has, however, to be set against the fact that the Taliban did not kill him when they arrested and imprisoned him during their period of control of Mazar-e-Sharif over the 1998-2001 period.”

16.	In paragraph 42 Dr Marsden sets out further material, upon the basis of which he invites the conclusion (which is not difficult to draw) that General Dostum has on various occasions exhibited particular ruthlessness.

17.	Finally at paragraph 43 of his report Dr Marsden summarises his view as to the risk as follows:

"It is my assessment, based on my historical knowledge of Afghanistan, my ongoing monitoring of website sources and interviews with key informants, that the primary risk to [SS] arises from the fact that his father may have facilitated the successful entry of General Malik to Mazur-e-Sharif in May 1997 through the provision of strategic logistics and technical support, drawing on his experience gained while working within the Defence Ministry of the former People’s Democratic Party of Afghanistan government  from 1979 to 1992.  General Dostam may, therefore, have good reason to continue to feel aggrieved over the actions of [SS]'s father and may, subject to considerations of his own power and influence within the current Afghan government, have a continuing interest in targeting SS.  In considering the extent to which his desire for respectability might outweigh his desire to avenge the action of [SS]'s father, regard needs to be had to his willingness to incur widespread international condemnation for the manner in which he disposed of hundreds of Taliban prisoners in the autumn of 2001.  Regard also needs to be had to the ease with which he could arrange for [SS] to be killed without this being traced back to him.  [SS] may also be at risk from some of General Dostam's commanders, within the Junbesh militia, who may be influenced solely by their desire to avenge Abdul Malik's treachery and may see an opportunity, through [SS]’s inability to protect himself, to act out their revenge."

18.	In rejecting the submission made on the basis of Dr Marsden's first report the central point made by the Secretary of State in the decision letter of 20 January 2010 was that the applicant had failed to show that General Dostum is interested in actively targeting him.  Beatson J considered that he had to decide whether the refusal of the Secretary of State to treat the further submissions as a fresh claim was Wednesbury unreasonable or otherwise flawed on public law grounds.  

19.	The Secretary of State expressed his conclusion in that regard at paragraphs 8 and 9 of the decision letter, which read:

"Some points raised in your submissions were considered when the earlier claim was determined. They were dealt with in the letter giving reasons for refusal of 30 August 2002 and the appeal determination of 5 December 2003.  The remaining points raised in your submissions have been given anxious scrutiny however taken together with the material previously considered and the letter giving reasons for refusal and the tribunal determination would not have created a realistic prospect of success."

20.	Beatson J concluded essentially that Dr Marsden's first report was so surrounded by qualifications and the risk it described expressed in such conditional terms that there was no realistic prospect of it being shown that the Secretary of State had erred in the approach to the critical question, ie whether the new submissions had not already been considered and whether, taken together with the previously considered material, they created a realistic prospect of success for the applicant notwithstanding the Secretary of State was minded to reject them.  In the light of the decision of this court in YH v Secretary of State for the Home Department [2010] EWCA Civ 116 the question for Beatson J was not in fact whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an adjudicator.

21.	However, Mrs Usha Sood, who has appeared for the applicant today, does not put in the forefront of her application any suggestion that Beatson J misdirected himself or came to the wrong conclusion; rather she relies upon a second report of Dr Marsden dated 12 April 2010, ie subsequent to Beatson J's decision.  That report, she submits, constitutes fresh evidence, upon the basis of which a different decision should or might now be reached by this court. It is said that this second report (and I quote from her skeleton argument) addressed the reservations of Beatson J about the conditionality of the earlier assessment of risk.  I have given that second report of Dr Marsden anxious scrutiny, as indeed I have his first report.  It is true that the second report expands upon the theme of the first, particularly as to the prevalence of blood feuds or vendettas in the Afghan culture such as apparently exist between Generals Dostum and Malik and their supporters.  However, this material is no different in substance from what Dr Marsden has already said at paragraphs 41(b) and 43 of his first report, which I have set out already.  

22.	Dr Marsden also revisits the extent to which the applicant may be at risk from the Taliban.  Thus at paragraph 26 of his second report he says this: 

"[SS] would be particularly exposed to targeted violence at the hands of the Taliban if, as is likely, he is unable to afford accommodation and is therefore living in the ruins of southern or western Kabul or on the streets.  The absence of an extended family structure in the capital would also leave him unprotected against such targeted violence.  In considering of the propensity of the Taliban to single out individuals such as [SS] it should be noted that such a propensity would have regard to the extent of the original grievance. In the case of [SS] his father's possible role in facilitating the entry of Abdul Malik into Mazur-e-Sharif in May 1997 and, as a consequence, his clear association with Abdul Malik may place [SS] at risk because, as a result of Abdul Malik's betrayal of the Taliban, several thousand Taliban fighters were reported to have been killed by Abdul Malik. "

This is again, however, no different in substance from what Dr Marsden had already said again at paragraph 41(b) of his first report.

23.	The high point of Dr Marsden's second report is perhaps paragraph 12, which reads:

"While there is no objective documentation to establish whether [SS's] father was instrumental in Abdul Malik's successful entry into Mazur-e-Sharif in May 1997, any such involvement, if it was significant to the final outcome, would, in my view be sufficient to justify a very considerable desire on Rashid Dostam's part for revenge. Given this, I would regard it as a reasonable possibility that Rashid Dostam would seek to take revenge against [SS], even though revenge has already been exacted against the father.  "

24.	It is true that later in the report, particularly at paragraphs 27 and 28, Dr Marsden uses the expression “reasonable probability” rather than “reasonable possibility”, but, looking at the substance of the matter, Dr Marsden is in my view doing no more than to repeat in different language the assessment of the risk which he proffered in his first report.  He relies upon no new developments in Afghanistan from which it is to be inferred that the enthusiasm of General Dostum to exact vengeance upon the applicant for the activities of his father is likely to have increased over time, rather than, as would perhaps be expected, to have waned as other priorities and imperatives have emerged.

25.	In these circumstances I find it unnecessary to consider what should be the approach of this court to an attempt to rely upon fresh evidence on an application of this nature.  In YH, above, Carnwath LJ emphasised, at paragraph 21 of his judgment, that whilst the court is entitled to exercise its own judgment, the process remains one of judicial review, not a de novo hearing, and the issue must be judged on the material available to the Secretary of State.  The Secretary of State is naturally concerned that the court should not usurp her function to give consideration, under paragraph 353 of the Immigration Rules, to further submissions made by an asylum seeker whose rights of appeal are exhausted.  She also points out that if the court were to proceed in the way suggested by Mrs Sood, it would also afford to applicants an opportunity to secure earlier consideration of their claim than might otherwise be achieved, thereby obtaining an unfair advantage over other applicants.  The Secretary of State suggests that an application of the traditional principles enunciated in Ladd v Marshall [1954] 1 WLR 1489, combined with the applicant's ability to make a fresh application to the Secretary of State at any time, amply provides the safeguards which are required in this sensitive field.  As I have indicated, since I do not consider that Dr Marsden's second report contains any genuinely fresh material, I do not consider that these points arise for determination today.  In my judgment Dr Marsden's second report contains no material which could properly lead this court to reach a conclusion different from that reached by Beatson J.  It follows that I would dismiss this application for permission to appeal.

Lord Justice Elias  

26.	I agree.

Lord Justice Ward:  
27.	And so do I.

Order: Application refused