ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Mr Justice McCloskey and Upper Tribunal Judge Allen
UTIJR 6 JR/2772, 2793, 2813, 2778 & 2781/2015
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
LORD JUSTICE FLOYD
| R (on the application of HN and SA) (AFGHANISTAN)
(Lead Cases associated Non-Lead Cases)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Blundell, Mary Glass and Nicholas Ostrowski (instructed by the Government Legal Department) for the Respondent
Hearing dates: 13 and 14 January 2016
Crown Copyright ©
Lord Justice McCombe:
"…serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict" (Article 15(c) of the Directive).
Subsidiary protection would comprise the various benefits referred to in the relevant parts of Chapter VII of the Directive which include Article 24.2. That Article provides:
"As soon as possible after the status has been granted, Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least one year, unless compelling reasons of national security or public order otherwise require."
In implementation of this obligation in this country the respondent has issued a policy on Humanitarian Protection and the Immigration Rules make provision for the grant of the necessary residence permits as soon as possible, which may be valid for five years and are renewable and with a facility to apply for indefinite leave to remain (subject to various criteria) after five years: Immigration Rules 339Q(ii), 339R and 339S.
(B) Background Facts relating to the Appellants
"[HN], is aged 22 years. He entered the United Kingdom as a minor, in 2007, aged 14. He is from Laghman province. He has resided here for almost eight years. The last judicial decision in his case was on 30 September 2013, when the FtT decided that the Applicant was not credible and rejected his evidence since his last appeal in 2011. The Judge found he had a deep rooted resistance to being returned to Afghanistan, and rejected any risk on return. The FtT found that the Applicant had support in Afghanistan (the Applicant's own account was of his cousin's family in Kabul and he claimed he had previously resided in Kabul with a neighbour's relative for a year before his departure from Afghanistan). The Judge also dismissed the Article 8 appeal. Mental health was not in issue in this appeal. On 20 November 2013 the Upper Tribunal refused permission to appeal. This Applicant's challenge asserts a prima facie risk of Article 15(c) treatment in his home province. It further involves the contention that, in his present condition, he cannot safely or reasonably relocate to Kabul. This contention is based on certain medical evidence which records a history of recent suicide attempts, self-harming and hunger strike. The medical expert describes this Applicant as manifesting severe mental health problems, describing his condition as "unstable". He too invokes paragraph 276 ADE of the Immigration Rules, highlighting his age, length of residence, health and the lack of meaningful healthcare in Kabul and linking this with his private life rights under Article 8 ECHR. He further contends that he qualifies to be considered a vulnerable person within the terms of the OGN of February 2015 and that the Secretary of State should now give consideration to granting him leave to remain exceptionally under paragraph 353B of the rules.
[SA], celebrated his 18th birthday on his deemed date of birth of 01 January 1997. He originates from Baghlan province. On 01 October 2014 the FtT held that while he would be at real risk of persecution in his home area, he could safely and reasonably relocate to Kabul. The first element of his case is based on Article 15(c) of the Qualification Directive. The second involves the contention that he cannot safely relocate internally in Afghanistan. The third, invoking paragraph 276ADE(vi) of the Immigration Rules, is based on the contention that in light of his age, recent separation from Afghanistan and absence of family support in Kabul, there are clearly serious obstacles to his reintegration there. The fourth element of his challenge is, invoking JS (Former unaccompanied child – durable solution) Afghanistan  UKUT 00568 (IAC) that he is a former looked after child he requires a "durable solution" to any proposed resettlement and, given the absence thereof, his removal to Afghanistan will breach his right to respect for private life under Article 8 ECHR."
(C) The Representations made to the Respondent and the Decisions
a. She said that the reception centre of the International Office of Migration in Afghanistan could only provide limited assistance and required those given initial accommodation to leave after two weeks. This, she said, often required those returned to the country to depart for unsafe provinces;
b. She referred to the deteriorating infrastructure which was under pressure from population increase;
c. Her view was that in the absence of support those returned "will find it difficult, perhaps impossible to find livelihood opportunities";
d. Those returned from the UK tended to be regarded as contaminated or "westernised" and some were vulnerable to recruitment by armed groups;
e. Reintegration packages were said to be inadequate and on failure of new businesses started by them risked being forced to choose between destitution in Kabul or risks of returning to unsafe provinces on unsafe roads.
In 2014, UNAMA documented 10,548 civilian casualties (3,699 deaths and 6,849 injured): "The intensification of conflict-related violence in Afghanistan took an extreme toll on civilians in 2014, with civilian loss of life and injury reaching unprecedented levels. UNAMA documented 10,548 civilian casualties (3,699 deaths and 6,849 injured), marking a 25 per cent increase in civilian deaths, a 21 per cent increase in injuries for an overall increase of 22 per cent civilian casualties compared to 2013. In 2014, UNAMA documented the highest number of civilian deaths and injuries in a single year since it began systematically recording civilian casualties in 2009."
"Buxton LJ explained the nature of the Secretary of State's task under paragraph 353:
... [She] has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of Sate has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.
The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition (see per Lord Bridge of Harwich in Bugdaycay v SSHD  AC 514 at p531F)".
The letter also refers to paragraphs 22 and 23 of the judgment of Toulson LJ in AK (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 535, identifying the mischief of repeated claims seeking to re-open cases without sufficient new cause and stating:
"Precisely because there is no appeal from an adverse decision under rule 353, the decision maker has to decide whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."
"Thus the approach in respect of Paragraph 353 of the Immigration Rules as contemplated by those passages requires us to establish whether the new material has previously been considered and, if not, whether on all the evidence there would be a realistic prospect of success in an appeal to the First Tier Immigration Tribunal, bearing in mind as well the requisite standard of proof and the requirement for anxious scrutiny."
"It is not accepted that Dr Schuster's report together with all the other material relied upon, justifies a departure from the findings in AK as to the risk posed to an individual returning to Afghanistan, to the reasonableness and safety of relocating to Kabul, and whether the internal armed conflict in Afghanistan reaches the threshold necessary to engage the UK's obligations under Article 15(c)."
"From this I conclude that Mr [N] is a disturbed man suffering from mental illness, who in recent weeks has made attempts on his life. He has serious illness which is continuing, in spite of medication. This mental state is currently unstable. It is understood Mr [N] does not want to be removed, and the added stress of a forced removal would be expected to provoke a further deterioration in his mental illness, especially in the light of what his voices are said to have been telling him. Being on a charter flight with others also being forcibly removed could be particularly disturbing for Mr [N], with the risk of group behaviour compounding his anxiety.
The standard IATA guidelines indicate that 'medical clearance is required by the airline's medical department if the passenger…….(b) because of the ….behavioural condition, is likely to be a hazard or cause discomfort to other passengers'. Specifically in relation to chronic psychiatric disorders, acceptance is only for those who are 'properly controlled by medication and stable (eg living out in the community taking care of all own needs including medication)'.
My professional judgment is that on the evidence available to me it would be wise to assume Mr [N] is not fit to fly because of his mental instability. However, there could be scope for flying with a medical escort, if this were advised by an expert in aviation medicine, as advised by a psychiatrist."
The respondent's answer to this was this:
"Your client's claimed mental health is not considered to be life threatening. As stated earlier in this letter there is adequate support and treatment should your client need assistance upon his return to Afghanistan. Mental illness is not a barrier to removal and that there is no question of removing anyone who, following assessment from the relevant and appropriate medical authorities is deemed not fit to fly.
We have had regard to Dr Pickles' report, note that he makes his observations without having seen or met Mr Naziri and we will make our decision on Mr Naziri's fitness to fly based on an up to date assessment from a medical practitioner who has had the benefit of making an in-person assessment"
"Your submissions have been considered, both individually and together, along with your client's previously submitted material, to determine whether there is a realistic prospect of success before an immigration judge. For the reasons already given in our previous letter of 26 January 2015 and for the reasons above it is considered that your submissions on behalf of your client, when taken together with the material previously considered, do not create a realistic prospect of success before an immigration judge. Therefore it is not considered that your submissions on behalf of your client amount to a fresh claim"
Your asylum and/or Human Rights claim has been reconsidered on all evidence available, including the further submissions of 18 March 2015 but it has been decided that the decision of 02 August 2014 should not be reversed. The further submissions submitted are hereby rejected. Accordingly it is not appropriate to grant you leave in the UK for the reasons outlined in earlier letters and also above. Furthermore it has been decided that your submissions do not amount to a fresh claim. The new submissions taken together with the previous considered material do not create a realistic prospect of success."
(D) The Tribunal's Decision
"78. We consider it likely that Minister Balkhi seized the opportunity to broadcast a hard line, in the context of the obvious reality that Afghanistan remains a struggling country with significant economic and other problems and a grossly over populated capital, Kabul. We take judicial notice of the fact that repatriation involves a drain on limited resources. Thus the discouragement of would be repatriating countries is a far from surprising strategy.
79. We further take into account that Minister Balkhi was expressing a personal opinion. This is clear from the terminology of Dr Schuster's report:
"He is unwilling ……… in the Minister's view ……"
This assessment is readily made from the text. It is reinforced substantially by later evidence. We refer particularly to the witness statements of Mr Chatterton Dickson and, especially, the accounts therein of discussions with other Afghan government members and representatives. Furthermore, subsequent events confound the words spoken by Minister Balkhi, namely the undisputed evidence of actual repatriations and how these unfolded on the ground. This evidence establishes clearly, inter alia, that Afghan nationals have been repatriated to provinces which Minister Balkhi had effective declared "off limits". It establishes equally clearly that, contrary to Minister Balkhi's claims, the MOU, as elucidated and supplemented by the surrounding NVs, has continued to govern repatriations."
"88. We consider that the MOU is, at heart, a bilaterally agreed mechanism regulating the practical implementation of the repatriation of Afghan nationals from the United Kingdom to their country of origin. It is a cocktail of highbrow principles and the purely prosaic. It enshrines a series of norms and principles to be applied by the two Governments to the repatriation exercise. It is not overly prescriptive. It is a relatively high level instrument, with its espousal of governing norms and principles and its lack of dense detail. It is clearly designed to provide the two governments with a workable, viable and flexible tool to achieve the aims of efficacious repatriation and, in the words of one of the recitals, the "dignified, safe and orderly repatriation to and successful integration in Afghanistan", which is clearly one of its overarching purposes."
Having reached that conclusion, the Tribunal went on to consider whether individuals could seek to invoke its terms in support of personal claims. It concluded that the MoU was
"…not simply a bilateral inter-government agreement. Rather, it is also an expression of the policy of the United Kingdom Government relating to the repatriation of Afghan nationals. As such, it has the status of a material consideration which, as a matter of public law, must be taken into account in the case of every proposed repatriation. This we consider to have been the primary public law obligation imposed on the Secretary of State in making the impugned decisions…. ": paragraph 89.
"…. It was agreed that chartered British flights carrying immigrants from the UK shall be allowed to land at Kabul Airport, unless vulnerable people (children, families, women without a male relative and individuals whose permanent residential areas are insecure) are boarded amongst the returnees."
The Tribunal considered that no illegality or irrationality was shown in the light of these documents and the commitment of the two governments to discussing a revised MoU.
"i. Particular regard must be had to the recent determinations of the FtT in the Applicants' cases. This involves in particular acknowledging the lack of novelty in the suggestion that relocating to Kabul is not safe or reasonable, in circumstances where recent country evidence was judicially considered.
ii. The lawfulness of the Secretary of State's most recent decisions withstands scrutiny by reference to the standard of rationality.
iii. The Secretary of State's decisions are consistent with the recognition in the most recent UNHCR guidelines of the internal relocation of single able bodied men and couples of working age to urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life.
iv. Professor Clayton's brief report does not arguably justify a departure from the country guidance promulgated in AK.
v. The statements of Minister Balkhi have been considered by the Secretary of State and must not be viewed in isolation from other evidence and events, including the efficacious repatriation of 24 Afghans from nine provinces pursuant to the charter flight of 11 March 2015. Furthermore, his statements are not supported by UNHCR.
vi. The Secretary of State reasonably concluded that, given its limitations, Dr Schuster's report did not warrant a departure from the assessment of risk in AK. Furthermore, Dr Schuster did not suggest that breaches of Article 3 ECHR or Article 15(c) of the Qualification Directive would be occasioned by repatriation. More fundamentally, the Secretary of State rationally concluded that Dr Schuster's assessment of the issue of relocation to Kabul suffers from a series of intrinsic limitations and does not justify a departure from AK.
vii. Focusing on the standard of rationality to be applied to the Secretary of State's most recent decisions, the current country evidence falls well short of sustaining the Applicant's challenges."
"95. Within the limitations of a judicial review challenge and the hearing which has taken place we find no warrant for departing from the current country guidance promulgated in AK. In particular, we find that the evidence falls short of satisfying the stringent Article 15(c) test.
96. The Tribunal is equipped to make a further, ex post facto, assessment of the impugned decisions having regard to the post-decision evidence which it has received. This includes evidence of the successful repatriation of Afghan nationals from the United Kingdom and other countries to a series of provinces. In this context we refer particularly to the evidence digested in  above, which we accept. This evidence reinforces our conclusion that the impugned decisions of the Secretary of State are unimpeachable on the grounds advanced by the Applicants."
(E) The Appeal
"35. In that context, the word "individual" must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a member state to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in article 15(c) of the Directive.
39. In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection."
The socio-economic conditions in the proposed area will be relevant in this part of the analysis. If the situation is such that the claimant will be unable to earn a living or to access accommodation, or where medical care cannot be provided or is clearly inadequate, the area may not be a reasonable alternative. It would be unreasonable, including from a human rights perspective, to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. At the other end of the spectrum, a simple lowering of living standards or worsening of economic status may not be sufficient to reject a proposed area as unreasonable. Conditions in the area must be such that a relatively normal life can be led in the context of the country concerned. If, for instance, an individual would be without family links and unable to benefit from an informal social safety net, relocation may not be reasonable, unless the person would otherwise be able to sustain a relatively normal life at more than just a minimum subsistence level."
"The future situation
Whilst we have reached our assessment of country conditions in Afghanistan so far as they relate to Article 15(c) so as to make a forward-looking assessment of risk based on the present evidence, we cannot overlook the fact that the current overall trend is one of rising levels of violence now over several years, even if relatively gradual. Nor can we overlook that although we consider the planned departure of most of the NATO and international troops in 2014 is not reasonably likely to leave a security vacuum, this departure obviously gives rise to more unknowns about what is likely to happen than otherwise. Hence it seems to us that whilst the guidance we give will continue to have validity for the immediate future, we will need to keep the situation in the country under careful review over the next few years."
"The UNAMA report (cited by the Respondent at B/Vol 1/40/1.1.10) suggests that 70% of the security incidents are in the East, South East and Southern Provinces. The combined population of these provinces is 8,019,300 (EASO figures) and if casualties are distributed in the same way as security incidents then the average casualty rate in 2014 for these provinces as a whole would be 0.092%. This is close to the 0.1% to which the Tribunal in AK attached significance and it is obvious that in some areas at least the level of casualties in the southern region almost tripled in 2014 as compared to 2013".
"The general security situation in Afghanistan had deteriorated to a far greater degree than that which had been anticipated by the tribunal in AK. At §211 the Tribunal in AK considered that while the state was ineffective to protect its citizens, the presence of international forces provided "sources of immediate physical protection and assistance". The Tribunal recognised that the international forces would leave in 2014 but considered that resources being put into the Afghan National Security Force (ANSF) meant that "even if the ANSF does significantly less well post-2014 at providing security, there will not be a security vacuum". The material presented to the Respondent and the UT showed that the overall trend is one of decreasing government control outside the larger town and cities. The ANSF "lacks requisite capacities as a counter-insurgency force". They are increasingly "confined to their bases and security checkpoints, unable or unwilling to go out on patrol and the community. This leaves the Taliban free to provide its own forms of government in the countryside". The Respondent's own CIG accepts that "In general, the state is unable to provide effective protection.""
6.1 There is no policy which precludes the enforced return to Afghanistan of failed asylum seekers who have no legal basis of stay in the United Kingdom.
6.4 The preferred option for repatriating those Afghan asylum applicants who having exhausted the independent appeal process, are found not to need international protection is assisted voluntary return. This policy is in line with the Tripartite Memorandum of Understanding on Voluntary Return, between the UK, the UNHCR and the Afghan Transitional Administration. However, as agreed with the Afghan authorities, from April 2003 those not choosing voluntary return and found to be without protection or humanitarian needs have been liable to be considered for enforcement action although those individuals or groups identified as vulnerable are excluded from the programme of enforced returns. All Afghans returned by charter operation from the UK are given immediate post arrival assistance including temporary accommodation and onward transportation if required, and offered access to a reintegration programme which includes vocational training and business support options."
Mr Westgate referred to the passage at paragraph 6.4 to the words, "…as agreed with the Afghan authorities…", which he said hinted at the existence of some other documents, but he told us that those instructing him had been informed that there was no further documentation.
"Finally, you have referred to the acceptance criteria as expressed by Minister Balkhi, specifically that the MOU prohibits the return of (a) women; (b) children; (c) those with mental health problems, and (d) those from dangerous provinces because they will not be permitted entry upon arrival. Firstly, it is noted that your client is a single adult male, therefore neither (a) nor (b) apply.
With regards to (c), the MOU does not expressly prohibit the return of individuals suffering from mental health problems, rather it places specific obligations on behalf of the contracting parties to the MOU to take additional steps in ensuring the wellbeing of individuals returning either voluntarily or enforced. For example:
Special Measures for Vulnerable Groups
The Participants will take special measures to ensure that vulnerable groups receive adequate protection, assistance and care throughout the repatriation and reintegration process. In particular, measures will be taken to ensure that unaccompanied minors are not retuned prior to successful tracing of family members or without specific and adequate reception and care-taking arrangements having been put in place in Afghanistan.
The UK government will ensure that all Afghans returning under this MoU are provided with a basic medical examination prior to their repatriation and given the opportunity, if necessary, of access to medical care in the United Kingdom, in the circumstances where no previous health check had been carried out whilst persons have been in the United Kingdom, or if some time has elapsed since contact with health services. Furthermore, vaccinations will be provided by the UK Government prior to repatriation, where considered necessary by the UK Government"
Mr Westgate argued that no adequate consideration had been given, in the context of the policy, to the appellants' provincial origins, the state of HN's mental health or to SA's position as someone who had been an unaccompanied minor on entry to the UK.
"54. ... The mere possibility of ill-treatment on account of an unsettled situation in the requesting country does not in itself give rise to a breach of Article 3. Where the sources available to the Court describe a general situation, an applicant's specific allegations in a particular case require corroboration by other evidence, except in the most extreme cases where the general situation of violence in the country of destination is of such intensity as to create a real risk that any removal to that country would necessarily violate Article 3.
59. The Court has next examined the question whether the general security situation in Afghanistan is such that any removal there would necessarily breach Article 3 of the Convention. In its judgment in the case of H. and B. v. the United Kingdom, (cited above, §§92-93), it did not find that in Afghanistan that was a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there. In view of the evidence now before it, the Court has found no reason to hold otherwise in the instant case."
(F) My conclusions on the arguments
"Anxious scrutiny has been given to the decision in LP and the effect it has on your client's case, but it has been determined that the findings by the Tribunal in LP in addition to the most recent country information, when taken together with material previously considered in your client's case, would not create a realistic prospect of success before an immigration judge."
However, the statements in earlier parts of the letter indicated fairly clearly that the writer was stating his/her own view of the claims rather than assessing what a Tribunal might find. My Lord, Laws LJ, said this:
"We are required to approach these matters with anxious scrutiny albeit consistently with the public law test limited by the Wednesbury rule. In this case it seems to me that the Secretary of State has not given reasons why in her view the appellant would enjoy no realistic prospect of success before the AIT. If realistic prospect of success means only a prospect of success which is more than fanciful, the Secretary of State has not made it clear that she has adopted that approach. But in relation to reasons Mr Kovats sought to defend the letter by submitting in effect that proper reasoning on the realistic prospect issue may be supplied by paragraphs in the letter earlier than the critical passage at paragraph 21. That, I think, will not do. The Secretary of State's earlier reasoning goes to her overview of the new representations, and it is as it happens to be noted that the decision letter omits express reference to the detention and ill treatment of which complaint was made. In my judgment the standard of reasoning on the second but critical issue arising under Rule 353 was not supplied in the Secretary of State's decision letter in this case."
(G) The "Non-Lead" cases
(H) Footnote on the headnote
"(i) It is intrinsically undesirable that judicial review proceedings be transacted in circumstances where material evidence on which the Applicants seek to rely has not been considered by the primary decision maker.
(ii) There is a strong general prohibition in contemporary litigation against rolling review by the Upper Tribunal in judicial review proceedings.
(iii) Where a judicial review applicant is proposing to make further representations to the Secretary of State in circumstances where a new decision will forseeably be induced, it will normally be appropriate, to refuse permission or to dismiss the application substantively on the ground that it will be rendered moot and/or an alternative remedy remains unexhausted and/or giving effect to the prohibition against rolling review.
(iv) The principles rehearsed above are to be similarly applied to applications for permission to appeal to the Court of Appeal."
(I) Suggested Outcome
Lord Justice Laws:
Lord Justice Floyd: