England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
UPPER TRIBUNAL JUDGE McKEE
AA/10404/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/01/2013

Lord Justice Rix :

1. This appeal raises the sole question of whether the decision of the Upper Tribunal (Upper Tribunal Judge McKee) promulgated on 20 September 2011 is perverse in failing to find that there was a real risk to the appellant, MS, from the Taliban, on his relocation in Kabul. MS appeals against the refusal of asylum and the consequent decision to remove him from the United Kingdom as an illegal entrant.
2. The appeal comes before us in somewhat unusual circumstances. The respondent Secretary of State was willing to make a concession whereby the appeal was allowed and the case remitted to the Upper Tribunal for further consideration. It is plain from the Statement of Reasons drafted for the Secretary of State and submitted to the appellant that the ground for the concession was not that of perversity, which was the appellant's ground of appeal for which permission had been granted by Sir Richard Buxton albeit "With some hesitation", but the willingness of the Secretary of State to accept a basis for saying that the Upper Tribunal had "failed to demonstrate that it had given proper consideration to the findings of the report of Dr Giustozzi". That would be an unusual basis for allowing an appeal at the second appeal stage and might well be said not to arise out of an error of law: however, since the matter was proposed to be dealt with ex concessu, and since the appellant's case would return to the Upper Tribunal for further consideration, there was perhaps no harm in that.
3. However, the offer of this concession was rejected by the appellant. It was rejected because the appellant was unwilling to have his appeal returned to the Upper Tribunal. He wished to succeed in his appeal outright, so that it was accepted on behalf of the Secretary of State, or by this court, that he was entitled to asylum. It appears from the skeleton argument prepared on his behalf by Mr Chelvan, in the light of the Secretary of State's offer and its decline, that it was considered that the Secretary of State had accepted the appellant's perversity challenge. On that basis it was submitted that the appeal must succeed outright. However, that supposed concession was not the case, as was clear from the draft Statement of Reasons. The court was therefore concerned to make clear to the parties, and particularly to Mr Chelvan, at the opening of the hearing, that if the appeal was pursued, on the single ground for which leave was granted, namely perversity, but lost, the opportunity for remission which had been offered by the Secretary of State as a matter of concession, would be lost as well.
4. Mr Chelvan took instructions and confirmed that MS was willing to accept that risk. The appeal was therefore conducted on the basis that, if it failed on the ground of perversity, it failed, and there would be no opportunity of a second chance by way of remission.

The essential facts

5. I will say something below about the lengthy windings which MS's claim to asylum took, since it was first made on his arrival in the United Kingdom on 2 January 2007. For the present, I will outline the essential facts upon which UTJ McKee determined the appeal to the Upper Tribunal.
6. MS was born on 20 June 1977. He is a Pashtun. The Secretary of State has always accepted that he worked as a secret intelligence officer in Afghanistan from 2003 to 2006. She also accepted, giving him the benefit of the doubt, that he worked for the American security forces for three months in 2006. It was also accepted that his brother was killed at the family home while MS was out. What has not been accepted is that he was at risk from the Taliban at any rate if relocated from his home province of Logar, albeit that was not far from Kabul. That was because he was not regarded as a priority target for the Taliban, especially now six years after his departure from Afghanistan.
7. Nevertheless, it has been submitted that a newspaper article about his reaction to the death of his brother, published in 2006 in the Hewad Daily, an Afghan government newspaper with a circulation of about 5,000, should have made a critical difference. It was on this account that MS obtained an appeal from the decision of Immigration Judge Mace dated 3 November 2010 in the First-tier Tribunal.
8. The article read, in translation, as follows:

"The terrorist once again commenced their barbaric action

[AS, the brother] a brave and prominent officer of Logar province, was killed in front of his family in his home by Al Qaeda terrorists. Our reporter added that his wife and children were screaming and trying to rescue him, but the brutal terrorists and enemies of humanity did not have any mercy on him.

[MS] brother of late [AS], who was also an active and powerful officer of National Security and has suppressed the terrorists, told to our reporter that this action of our country's enemies will not discourage us and I will carry on further drastic activities to eliminate them."

9. It is now accepted, on the basis of an expert report dated 20 August 2010 by Dr Phil Green, an expert on printing, that the article could not have been inserted after publication. Therefore, it appeared in the Hewad Daily on the day of its original publication. However, it was not deployed by MS in support of his asylum claim until it made its first appearance, at the same time as Dr Green's report, in support of an application to adjourn a hearing in the First-tier Tribunal listed for 23 August 2010. This was despite the fact that the article was in MS's possession in the United Kingdom by at latest April 2007, and was not relied on in earlier appeal proceedings which took place in that month. This chronology emerged in a witness statement made in August 2010 by a solicitor with Lawrence & Co, solicitors acting for MS, explaining the article's late appearance.
10. It is therefore necessary to say something about the complexities of MS's asylum appeal proceedings.

MS's appeal proceedings

11. Despite his courageous statement made to a reporter of the Hewad Daily, MS left Aghanistan only nine days later. That, together with the lateness of the article's deployment, has led to doubt as to whether the article was planted by MS, or even genuinely present in the newspaper on the date of its publication. It is now recognised that the latter possibility has been removed by Dr Green's August 2010 evidence.
12. At his asylum interview in January 2007 MS was asked whether the death of his brother would have been documented in Afghanistan. He said that he thought it might have been published in a newspaper, but was unsure. He said that he would try to get hold of the newspaper.
13. Following the refusal of MS's asylum claim, his appeal against that refusal was heard by Immigration Judge Traynor on 25 April 2007. IJ Traynor was not impressed with MS's oral evidence, which he found evasive and inconsistent.
14. The Hewad Daily article was not deployed by MS at that appeal, even though the subsequent evidence from his solicitors, Lawrence & Co, referred to above demonstrated that it was already in his possession. The witness statement said that MS had then provided the article to his solicitors but had not wanted to rely on it. This was said to be because –

"he had a friend who provided a genuine newspaper article in support of his claim but his claim was refused because the Home Office had said and the court had accepted that the newspaper was a forged document even though they knew that the article was genuine."

15. MS obtained reconsideration of IJ Traynor's decision and his appeal was heard de novo by Immigration Judge Talbot on 7 March 2008. The Hewad Daily article was not deployed by MS at that appeal either. This was despite the fact that shortly before that hearing Lawrence & Co had faxed some newspaper articles from Afghanistan, which were relied upon, including one headed "A person was killed because his brother was an employee of National Security." MS's appeal was again dismissed. MS's credibility came in for criticism. IJ Talbot said:

"29. The Home Office has accepted that the Appellant worked for the Afghan Government and for the American Security Services as claimed by him and supported by documentary evidence submitted by him. It has also accepted that his family were attacked and his brother killed. However, it does not accept that the attack was necessarily carried out by the Taliban or that the Appellant himself suffered an attack some 2½ weeks after the attack on his family. I also do not believe that the Appellant has given an honest account of events following the attack on his family that prompted his flight to the UK…I do not believe his account of having been personally attacked some 2½ weeks or so after the attack on his family. Whilst the Home Office has accepted that the Appellant attended the Afghanistan Human Rights Organisation in Kabul, I am not satisfied that the contents of the letter from them stating that he was at risk from the Taliban can be regarded as reliable or independent evidence of the events alleged by the Appellant, bearing in mind the prevalence of false documentation as well as the fact that they would have relied on what the Appellant told them."

16. In 2009 MS made further representations to the Home Office, supported by three new pieces of evidence (but not by the Hewad Daily article). The representations were not considered to be a fresh claim. Following the lodging of judicial review proceedings in October 2009, however, the Secretary of State undertook to treat the representations as a fresh claim. MS's claim was again rejected by a refusal letter dated 13 July 2010, on the basis of his return to Kabul.
17. MS claimed a new appeal, and it was just before the hearing of that new appeal, listed for 23 August 2010, that, as explained above, the Hewad Daily article surfaced. The solicitor's witness statement said that it was now deployed because Dr Green had only just been found as an expert who could confirm the genuineness of the article.
18. The adjourned hearing of this new appeal then came before IJ Mace on 25 October 2010. In the meantime two expert reports had been obtained from Dr Antonio Guistozzi, a research fellow at the LSE, whose reports on Afghanistan have been recognised in relevant jurisprudence. In his first report, dated 25 October 2009, Dr Guistozzi said:

"12. Over the last 18 months the ability of the insurgents to pursue individuals like [MS] in Kabul or the other cities of the north has increased dramatically. Hizb-i-Islami in particular have a presence in Kabul, with young activists operating at the university for example, but it cannot at present be said that they are very active in Kabul. The Taliban on the other hand seem to rely more on ad hoc infiltration and carry out occasional terrorist attacks in Kabul against high profile targets; clearly their human resources in Kabul are limited and they use them sparingly. Over the last several months non-lethal attacks and harassment against Afghans working for NATO or Coalition have begun being reported even in Kabul; it is not clear whether these are carried out by Taliban or simply by unorganised Afghans who are hostile to foreign presence. ISAF and Coalition interpreters seem to have been the main target so far and I have not seen any report yet of attacks on intelligence officers in Kabul itself, but the level of activity of the insurgents in Kabul has been steadily growing and they can be expected to expand their targeting in the future.

13. It should also be considered that Logar province is located very close to Kabul and many Logaris live in Kabul; as a result information about the whereabouts of [MS] is likely to spread particularly fast."

19. In his second report dated 22 September 2010 Dr Guistozzi said:

"13. It is true that Logar is one of the main sources of insurgent infiltration into Kabul and that therefore there a[re] quite a few Taliban or Hizb-i Islami members from Logar in Kabul. [MS] at this point would not be a priority target for them, because he is no longer in service, but he could turn into an opportunity target if they became aware of his whereabouts. Because the population of Kabul tends to cluster on a regional and ethnic basis, the chances of [MS] running into some Taliban/Hizbis from Logar are not so remote. At that point, he would become a target because the assumption would be that given his past in the intelligence he would be very much opposed to the Taliban and pass on information about their activities to the government.

14. The fact that [MS's] brother also worked for the intelligence service does not modify [MS's] situation significantly; because of his past [MS] is already certainly considered a very hostile element. This does not mean that they would actively seek him in areas not under their own control, but certainly they would consider him as a major liability if he was to present in an area where they operate. The relatives of people working for the government are targets but people who actually worked for the government and particularly the intelligence have priority. The fact that the whole family can be considered pro-government cannot make the position worse than this: if the Taliban came across [MS] they would not hesitate to execute him anyway."

It was Dr Guistozzi's second report ("Dr Guistozzi's report") that was relied upon in the new appeal before IJ Mace.

20. IJ Mace commented on the fact that MS had not given evidence before her and thus denied the tribunal any personal evidence for his reasons for not relying on the Hewad Daily article or concerning the circumstances in which he came to speak to the reporter in the terms in which he was reported. She said that these considerations "affects the weight I attach to this further evidence". She said that she had taken account of Dr Guistozzi's report and that of Dr Green: and indeed she had devoted earlier sections of her determination to those reports. In particular at para 95 of her determination she noted Dr Green's report and said:

"Whilst the respondent has not proved any allegation that this document is a forgery, having considered all of the evidence in the round, I do not place reliance on it."

She then concluded:

"98. For all the reasons that I have given above, having considered all of the evidence before me as a whole, and reminding myself of the standard of proof, I do not find that the evidence before me causes me to depart from the findings made by the Immigration Judge in 2008. I am not satisfied, even to the low standard required, that the appellant has shown that he has been identified or was at risk from the Taliban or other insurgents, or that he is now at such risk. I am not satisfied that there is any current adverse interest in him that would cause him to be at a real risk or reasonable degree of likelihood of suffering persecution. For the same reasons I do not find that he would suffer serious harm, or treatment contrary to Articles 2 and 3."

21. The appeal to the Upper Tribunal proceeded on the basis that IJ Mace had ignored the Hewad Daily article, which it was said would identify MS to the Taliban in the light of Dr Guistozzi's report. UTJ McKee agreed that IJ Mace's treatment of the article amounted to an error of law, requiring him to re-make the decision on appeal. As UTJ McKee said: given Dr Green's unchallenged opinion, it was not enough for the judge to say that she placed no reliance on it. That was a generous use of the doctrine of error of law.

The determination of UTJ McKee

22. It was therefore necessary for UTJ McKee to remake the decision on the appeal. The argument before him was that the Hewad Daily article made a critical difference to the decision about risk on return to Kabul which had so far repeatedly gone against MS, and before IJ Mace had failed even with the assistance of Dr Guistozzi's report. As Mr Chelvan confirmed to us in answering questions from the court, the issue before the Upper Tribunal was whether the article made such critical difference.
23. UTJ McKee answered that question in these terms:

"16. That does not mean a de novo hearing, of course. The re-making of the decision is confined to re-assessing the risk on return in the light of the Hewad Daily article. Mr Chelvan did not call the appellant to give any further evidence…

17. In my judgment, it is not necessary to determine whether the appellant was genuinely interviewed by a keen news-hound after the death of his brother, or whether he arranged for an article describing him as an arch-enemy of Al Qaeda to be printed in a newspaper shortly before he left Afghanistan to seek asylum. The question is whether this article will put the appellant at risk on return to Afghanistan at the present time, nearly six years later. The answer to that question, on the evidence available to me, is clearly not.

18…It is simply not reasonably likely that this fleeting reference to the appellant six years ago in a newspaper with a tiny circulation will have increased by even a tiny degree the level of risk from the Taliban or Hizb-e Islami which may be faced by the appellant on his return at the present time. Lawrence & Co in their latest bundle have put forward country background information about the continuing insecurity of Logar Province, but the appellant can reasonably be expected to relocate to Kabul without undue hardship. In Dr Guistozzi's opinion the appellant will not be a "priority target" for the insurgents, as he is no longer working for the security forces, although he could be an "opportunity target" if they came across him and know his antecedents. But it is clear that the Taliban are concentrating their efforts in Kabul on high-profile targets which will generate publicity, not on low-level former security personnel who have not been on active service for years. The evidence does not establish a real risk to the appellant on return to Kabul."

24. MS's new appeal was therefore dismissed.

The submissions on appeal

25. Mr Chelvan submitted that this finding of UTJ McKee was perverse. However, he did not really seek to submit that UTJ McKee had perversely refused to accept the critical importance of the Hewad Daily article; rather his main attack was on the judge's failure to give what he submitted was appropriate but also inevitable weight to Dr Guistozzi's report. He had to accept that Dr Guistozzi's report did not rely on the article, but nevertheless submitted that the importance of the article was that it informed the Taliban that MS was a collaborator and profiled him as a collaborator. That turned MS from a mere "opportunity target" to a profiled target, who would be prioritised. Alternatively, he sought to rely on aspects of both of Dr Guistozzi's reports which raised the possibility that MS would become known to the Taliban in Kabul, either because "the chances of [MS] running into some Taliban/Hizbis from Logar are not so remote" (the second report) or because "information about the whereabouts of [MS] is likely to spread particularly fast" (the first report). Alternatively, he submitted that the importance of the second report was that it demonstrated that there was no diminution of risk from 2006 to 2010.
26. Yet again, Mr Chelvan sought to accumulate the evidence which Dr Guistozzi had provided in this case with evidence which had been given in other litigation. Thus he referred us to AJ (Homosexuals: risk) Afghanistan CG [2009] UKAIT 0001, where at para [29] the following passage from Dr Guistozzi's writings, cited in a country of origin information report (COIR), was set out by the tribunal:

"10. It is not difficult to track people down in Afghanistan, although it might take some time. Neighbours and landlords will check people's backgrounds, because everyone thinks in terms of security, and so they want to check the newcomer's background in their home area. Further, messages are sent across the country via chains of communications based on personal contacts, and it would be natural to investigate where someone was from in order to see what role they could play in such a network."

Mr Chelvan submitted that that passage was accepted by the tribunal in that case at para [67].

27. Similarly, Mr Chelvan relied on the evidence of Dr Guistozzi and of Dr Shearer cited in AA (unattended children) Afghanistan CG [2012] UKUT 00016, from which he referred us to the following passages:

"130. As to the position in Kabul, it was accepted on behalf of the appellant that the Taliban would not actively be seeking to track him down within Kabul city, rather it is a chance encounter with the Taliban that he fears, and which Dr Guistozzi regards as a real risk.

131…We also take into account his evidence that tracking down someone from the provinces in Kabul is not difficult; and although the Taliban would not be proactively seeking him, it would not be easy for him to settle away from the southern and south-eastern parts of the city which are Pashtun dominated. The north is dominated by Tajiks, the west by Hazaras 'heavily hostile to Pashtuns', and the central areas are very expensive so that the appellant is highly unlikely to be able to afford to live there.

132. Similarly Dr Shearer identified a 'tangible', 'real, genuine, worrying' risk to the appellant as a young male related to 'perceived traitors'. He considered that the risk exists both in the appellant's home area, and, were he to relocate, within Pashtun communities where his identity and family history would be 'probed…discussed and almost certainly discovered' as familial lineages and the webs of interlocking reciprocal obligations are Pashtun mechanisms of survival.

133. We are further satisfied that the appellant would be at real risk of persecution as an unattached child from his particular home area who has lost all contact with his family, so that family protection will not be available to him…"

Mr Chelvan therefore argued that, if in those two cases, both of them country guidance cases, on the basis of such evidence, the asylum claimants succeeded in demonstrating a real risk of persecution in Kabul, the same should apply to the present case of MS, so much so that it was perverse of UTJ McKee to decide otherwise.

Discussion

28. In my judgment, these submissions cannot support the burden of an assertion of perversity.
29. The issue was whether the Hewad Daily article made a critical difference, but the real argument advanced was that Dr Guistozzi's evidence in other cases showed that a person who relocates to Kabul is unlikely to be able to avoid his past. On that basis, in circumstances where it had always been accepted that MS had a background in intelligence work, the newspaper article was of dubious incremental value, especially six years after such an ephemeral and low circulation publication.
30. As for AJ (Homosexuality), that was a case that turned entirely on individual factors. At para [62], the AIT summarised, as to the general situation, that –

"In the light of our conclusions described above we consider that relocation to Kabul is a viable option in general terms for homosexuals. Obviously though individual factors in any specific case will have to be taken into account."

31. Those individual factors were addressed as follows:

"67. The question then arises of internal relocation to Kabul. As simply a practising homosexual who would wish to keep his life private, we would not consider, in light of our general findings, that he could not safely relocate. However we have to take into account the prospect that his history will catch up with him and that his demonstrated willingness to take risks could expose him to public outrage even in a big city like Kabul. We have had regard to the quoted passage in the COIR from a previous paper by Dr Guistozzi concerning the practice of neighbours and landlords checking out a newcomer's background. In this case, on its very particular and exceptional facts as established by the Adjudicator, we consider that there is a real risk that his past notoriety would catch up with him in Kabul, with similar consequences to those he would face were he to return to Jalalabad. In those circumstances, we find, albeit marginally, that he does not have a viable relocation option and is entitled to asylum" (emphasis added).

32. I have emphasised certain passages in that extract to demonstrate how that case differs from this and how those differences make it impossible, to my mind, to assert perversity in UTJ McKee's determination. In that case it was established that the appellant was notorious in his home city, and that as a result he would be at real risk there; that he would not live quietly in Kabul but would take risks; and that on the particular and exceptional facts of that case, he would remain at risk in Kabul. Even so, the decision was arrived at "albeit marginally". It was in those circumstances that reference was also made to Dr Guistozzi's views: but from all the special factors referred to, none of which can be said to apply in the present case, it is plain that those views were neither decisive nor of general application.
33. The case of AA (unattended children) is to similar effect. The case concerned the question whether unaccompanied children returned to Afghanistan were at disproportionate risk of suffering serious harm as a result of armed conflict. The general conclusions were that, where the children had family to return to, they would not qualify for international protection (at para [93](i)). Where, however, the children did not have family to return to, then, depending on individual circumstances, there was a possibility of serious harm from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection (at para [93](ii)). Those general conclusions are restated in the report's headnote. The passages at paras [130]-[133] relied on by Mr Chelvan were from that part of the determination which was concerned with the appellant's individual circumstances, and not part of the general country guidance, save for the important consideration (at para [133]) that the appellant "would be at real risk of persecution as an unattached child from his particular home area who has lost all contact with his family, so that family protection will not be available to him". On that basis he would be equally at risk both in his home area and in Kabul. Again, the tribunal did not single out Dr Guistozzi's or Dr Shearer's evidence as of definitive and general application.
34. In the present case, every tribunal which has considered MS's case has come to the same conclusion, that he would not be at risk on return to Kabul. They have done so, despite the acceptance of his intelligence background, and, subsequently, despite Dr Guistozzi's report's assumption that that would be known to the Taliban in his area. When he has given evidence, his credibility was found wanting. He did not give evidence before UTJ McKee. If anything turns on the Hewad Daily article, it was considered by UTJ McKee, but did not persuade him that there was a real risk of persecution on return to Kabul. The position in his own province has been left undetermined: the case has always been argued on the basis of return to Kabul. MS is not a high priority target. Whatever the speculative risks of a chance encounter, or of neighbours' interest, they have not been considered to meet the level of real risk required for asylum. The family history, and the newspaper article, are six years in the past. There remains the question, which UTJ McKee did not have to decide, of whether the newspaper article, a genuine publication as it is accepted to be, was nevertheless inspired by MS himself, on the virtual eve of his departure, to bolster his claim. On any view, there remains an enduring mystery, never bottomed out, as to why MS did not rely on the article for at least three years after he had produced it to his solicitors. He has never been willing to give evidence on that question.
35. In all these circumstances, it cannot in my judgment be said that the Upper Tribunal's decision was perverse; or that this court is able of its own motion to decide that MS is entitled to succeed in his asylum or human rights claims.

Conclusion

36. In these circumstances this appeal must be dismissed. That was the decision which the court announced at the time of the hearing of this appeal. These are the reasons why I joined in that decision.

Lord Justice Moore-Bick :

37. I also agreed with the order made at the hearing of the appeal for the reasons given by Rix LJ.

Lord Justice Lewison :

38. I also agree.