England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Deputy Upper Tribunal Judge Chana
AA/05665/2014, [2015] UKAITUR AA056652014

		Royal Courts of Justice Strand, London, WC2A 2LL
		31 October 2018

Lord Justice Simon:

Introduction

1. This is an appeal by ST ('the appellant') from a determination of the Upper Tribunal (Immigration and Asylum Chamber) dated 23 November 2015 (Deputy Upper Tribunal Judge Chana). The confined ground on which permission to appeal was given is whether the conclusion of the First Tier Tribunal ('FtT') on internal relocation within Afghanistan was unlawful and/or contrary to established County Guidance, and whether, in upholding that conclusion, the Upper Tribunal ('UT') erred in law.
2. The appellant is an Afghan national who was born on 18 March 1995. He arrived in the United Kingdom in March 2010 as an unaccompanied minor and claimed asylum shortly after, on the basis that he had a well-founded fear of persecution by the Taliban. Although that claim was refused, he was granted discretionary leave to remain as an unaccompanied minor until 18 August 2012. At the expiry of this discretionary leave, he applied for further leave to remain. The application was made on a number of grounds. So far as material to the present appeal, one of the grounds was a claim under articles 2 and 3 of the European Convention on Human Rights ('ECHR') based on his continued fear of ill-treatment at the hands of the Taliban.
3. The Secretary of State ('the respondent') refused the application for reasons set out in a decision letter dated 17 July 2014. Having addressed the law and cases relevant to internal relocation in Afghanistan, including Country Guidance cases, the letter concluded that the appellant could safely relocate to Kabul.

You have never been arrested, detained or charged with any offence in Afghanistan. Therefore, it is considered that you would be free to move to another area of Afghanistan and there are no obstacles of a serious nature to prevent your relocation to Kabul, or another area of Afghanistan.

Therefore, it is concluded that as a civilian in Afghanistan you would not face a serious and individual threat to your life or person on return to Afghanistan. You are a fit and healthy young man and therefore can reasonably be expected to earn a living on return to Afghanistan.

4. The appellant appealed to the FtT on a number of grounds, one of which was a challenge to the respondent's assessment of the availability of internal relocation. The appellant adduced factual evidence in support of his case as well as a report from Dr Antonio Giustozzi, an expert on political and social conditions in Afghanistan.

The FtT findings

5. The argument on this appeal focussed on the FtT decision which was promulgated on 11 May 2015 (Immigration Judge Callow). The appellant's core factual account was accepted. However, the tribunal did not accept the conclusion of Dr Giustozzi as to the level of risk that the appellant would face if returned to Kabul.
6. The FtT found that the appellant came from an area near Jalalabad, where he had lived with his family until the age of 14. His father worked with a pro-government warlord, Haji Zaman; and this had brought the family to the attention of the Taliban. The appellant had not engaged in any pro-government or anti-Taliban activities himself; and had no 'political profile' before leaving Afghanistan. However, while at school, his relationship with his father had made him the target for an unsuccessful attempt to kidnap him in 2009, shortly before he left Afghanistan in 2010. He had not had contact with his father since then, and his father's whereabouts were unknown. The appellant was a mature and resourceful young man, and in good health. He had benefitted from his education in the United Kingdom and spoke good English as well as fluent Pushtu.
7. The FtT referred to a number of cases to which we were referred in the course of argument and to which it will be necessary to return later in this judgment: HK and others (minors) Afghanistan CG [2010] UKUT 378 (IAC); AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC); AK (Article 15 (c) Afghanistan CC) [2012] UKUT 163 (IAC); and H & B v. The United Kingdom (2013) 57 EHRR 17.
8. The tribunal concluded (at [21]-[22]) that the appellant could safely return to Kabul: it was for the appellant to demonstrate that it would not be reasonable to expect him to relocate and, beyond a general assertion that the Taliban were interested in him, this had not been demonstrated. Contrary to the opinion of Dr Giustozzi, the appellant had no 'political profile' and 'any potential interest that the Taliban had in the appellant can now be discounted by the lapse of time.' He had not established risk of recruitment by the Taliban; and the adverse impact of his return to Kabul would be lessened by the availability of return and reintegration packages.
9. The parties agreed that the decision of the UT did not significantly bear on the argument before us.

The appeal

10. The legal principles that apply when considering the issue of internal relocation were largely common ground and can be stated shortly.
11. An asylum seeker will not require international protection as a refugee if there is a satisfactory option of relocation in another part of his home country. In deciding whether such internal relocation is available, two questions must be answered: (a) would the individual face a real risk of persecution in the place of the proposed relocation, and (b) would it be unduly harsh to expect the individual to relocate in that area. The resolution of each question requires a fact-specific assessment, in which regard should be had to the most recent Country Guidance decisions of the Upper Tribunal. These provide general guidance as to the conditions in the country of proposed return, and the particular risks which may be faced by particular categories of individuals. Although a tribunal should have regard to expert evidence which addresses these questions, the weight to be attached to this evidence is for the tribunal, which will have regard to the totality of the evidence. To the extent that such evidence is not accepted, a tribunal should explain why. The second question (whether it would be unduly harsh to expect the individual to relocate) is to be assessed by considering whether the individual could live a relatively normal life in the place of relocation, judged by the standards generally prevailing in his or her country of nationality, see the general observations of Lord Bingham in Januzi and ors v. Secretary of State for the Home Department [2006] 2 AC 426 at [20] and [21].
12. Mr Mackenzie challenged the FtT's findings both in relation to the risk of persecution if the appellant relocated to Kabul and the reasonableness of such relocation.
13. In order to assess these submissions, it is necessary to set out parts of the FtT's findings in slightly more detail than summarised above:

[5(e)] In his expert report Dr Giustozzi reached the conclusion that the appellant's account of his claim for asylum appeared to be plausible. However, he did not believe it was likely that the appellant could have met Haji Zaman in his home area between mid-2002 and late 2009, but that he possibly met him outside those dates. He asserted at para 26 of his opinion that should the appellant return to his home area he would be at risk. He could not hope to live there for any significant period without being detected and, most likely, would be killed. Moreover, the appellant would not be safe in Kabul either. He highlighted a number of profile incidents involving government officials and members of the security forces who had been targeted by the Taliban in Kabul. The appellant would lack protection. The police were largely ineffective and the appellant could not expect them to protect him. If relocated to Kabul, he would be at risk of becoming homeless.

…

[21] The appellant can safely relocate to Kabul. Because the principal concern of refugee law is the provision of international protection to persons unable to receive protection in their own country, a purely localised risk will generally be insufficient to make someone a refugee. International protection is not needed if the person can obtain protection by moving elsewhere in his own country. In context, the question is simply whether it would be unreasonable to expect the refugee to relocate within his country and it would be unreasonable if such relocation was 'unduly harsh': Januzi v SSHD [2006] UKHL 5. It is for the appellant to demonstrate that it would not be reasonable to expect him to relocate internally within Afghanistan. Beyond making a general allegation that the Taliban has an interest in him, it has not been demonstrated, taking into account all relevant factors that this would eventuate. In the recent ECHR decision of H and B v The United Kingdom (application numbers 70073/10 and 44539/11) it was held that persons who had acted as interpreters for the US forces in Afghanistan could safely be returned to Kabul as there was insufficient evidence before it to suggest that the Taliban had the motivation or the ability to pursue low-level collaborators in Kabul or other areas outside its control. The Taliban devotes its limited assets in cities to high profile targets, from serving government officials upwards. In all the circumstances it has not been shown by the appellant that the facts put forward by him are materially different from those considered by the Upper Tribunal and the ECtHR.

[22] For his part the appellant, contrary to the opinion of Dr Giustozzi, has no political profile. Any potential interest that the Taliban had in the appellant can now be discounted by the lapse of time. The risk of recruitment by the Taliban has not been established. The impact of return to Kabul for the appellant will be lessened by the availability of return and reintegration packages: AK (Article 15(c)) at para 24. It was also held that in assessing safety and reasonableness in the context of Kabul's poor people and internally displaced persons, these conditions would not in general make return to Kabul unreasonable. The appellant can call on the assistance available from Refugee Action through its Voluntarily Assisted Return and Reintegration Programme.

Risk

14. Mr Mackenzie submitted the FtT had identified two reasons why the appellant could relocate internally to Kabul.
15. The first reason was that he had 'no political profile.' However, in doing so, the tribunal had failed to consider whether the appellant had a political profile in his own right as the son of a known supporter of Haji Zaman and whether he would be at risk as a result of his father's connection. Evidence of this risk was supported by the guidance in AA (unattended children) Afghanistan (see above) and in Dr Giustozzi's report. He argued that the FtT had given no reasons for not accepting evidence of this risk to the appellant. To the extent that there was a conflict between the views expressed in AA (unattended children) (see above) and those expressed in H & B v. UK (see above), the former was to be preferred.
16. Second, the FtT had erred in concluding that the lapse of time had reduced the very clear risk which had been demonstrated in 2009 at the time of the attempted kidnap.
17. The first argument raises the question of the extent to which the FtT is bound to follow Country Guidance cases in the Upper Tribunal. This matter was addressed in R (Iran) and others v. Secretary of State for the Home Department [2005] EWCA Civ 982 in relation to the Immigration and Asylum Tribunal ('IAT'):

Part 5 Country Guidance cases

[21] Three matters require more detailed treatment. The first relates to the practice of the IAT of giving 'country guidance' ('CG') decisions. This practice has proved to be so useful that it is now firmly embedded in the recently published Practice Directions of the AIT in these terms:

18.2 A reported determination of the Tribunal or of the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal or the IAT that determined the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:

a) relates to the country guidance issue in question; and

b) depends upon the same or similar evidence.

18. Practice Direction 12.2 of the Immigration and Asylum Chamber (First and Upper Tier) dated 10 February 2010 requires a tribunal to have regard to any relevant Country Guidance determination when making a decision. Those parts of Country Guidance cases which provide authoritative guidance are conveniently set out in the italicised part of the headnote. These are to be distinguished from those parts of an Upper Tribunal's decision which relate to the particular facts of the case, whose authority will depend on whether the issue depends on the same or similar evidence. AA (unattended children), as its name suggests, was concerned with unattended children, and on the particular facts of the case the Upper Tribunal concluded that AA had a justified fear of being persecuted or suffering other serious harm if he were returned to Kabul. Although there are some similarities between the facts relating to AA and those relevant to the appellant, in that they were both children of fathers who were identified opponents of the Taliban, the differences are stark. As the decision in AA (Afghanistan) noted at [96]-[104], AA was facing return to his home province in Afghanistan as a child only two years after he had been identified as having sung an anti-Taliban song at school and been rewarded by a foreign visitor for doing so. Two hours after this, the Taliban had come to the school and opened fire on those who were there, killing and injuring people, and two days later the Taliban had come looking for him. AA had come from Kabul province (the province to which he was to be returned); his father was still alive and considered to be a spy for the government, whose activities had led to the arrest of many members of the Taliban; and his elder brother was a military commander working with foreign troops.
19. In my view, the appellant is not greatly assisted by the facts of AA (unattended children); and the criticism that in the present case the FtT should have followed that case rather than H & B v. United Kingdom, or explained why it preferred to follow the former case is ill-founded. H & B v. United Kingdom was a decision of the ECtHR which expressly referred to, and took into account, the relevant Country Guidance cases: HK (minors), AA (unattended children) and AK (article 15(c)). The case before the ECtHR concerned two applicants: H, who had worked as a driver in Kabul working for UN, and B, who had been an interpreter working with the US and International Security Assistance Force. The court concluded that there would be no violation of article 3 of the ECHR if they were removed to Kabul.
20. The ECtHR recorded part of its decision in the headnote at H12:

(b) In examining whether both applicants would be at risk of ill-treatment at the hands of the Taliban due to their support of the international community, the Court limited itself to examine the risk to them of being returned to Kabul rather than any other part of the country. Based on country guidance, the Court considered that there was insufficient evidence at the time to suggest that the Taliban had the motivation or ability to pursue low-level collaborators in Kabul or other areas outside of their control. There was also little evidence of the Taliban pursuing those who had stopped collaborating with international forces. Although individuals who were perceived as supportive of the international community may have been able to demonstrate a real and personal risk to them from the Taliban in Kabul depending on the individual circumstances of their case, the Court was not persuaded that the applicants had established that everyone with connections to the United Nations or the US forces, even in Kabul, could be considered to be at real risk of treatment contrary to art.3 regardless of their profile or whether or not they continued to work for the international community [94]-[100].

21. The FtT in the present case was plainly entitled to regard the decision in H & B v. United Kingdom, based as it was on UT County Guidance cases, as support for its observations in [21] of its decision. There was no inconsistency between H & B v. United Kingdom and AA (unattended children) which required to be resolved.
22. Before leaving H & B v. United Kingdom it is convenient to refer to a further passage in the judgment in the context of Mr Mackenzie's criticism of the FtT's decision in its approach to the expert evidence. Dr Giustozzi had prepared an earlier report ('the Landinfo Report') dated 9 September 2011 which was considered by the ECtHR. At [55], the Court quoted from a passage in the report, part of which read:

… Similarly, episodes of targeting of civilians because of their association with one of the parties in the conflict have been rare. The main exception is represented by government officials, whom the insurgents have been proactively targeting and increasingly so.

23. At [58], the Court quoted from the conclusion of the Landinfo report:

… while the Taliban target even low-level collaborators in the areas where they are present in force, they limit themselves to high profile targets elsewhere. Killings of low profile collaborators of the government is not being reported in these areas.

24. There is no issue that the Taliban was not present in force in Kabul at the date of the decision in the present case.
25. Mr Mackenzie was critical of the way in which the FtT addressed the evidence of Dr Giustozzi about the position of the appellant. He submitted that the first two sentences of [22] of the FtT decision were short and conclusory, and did not address Dr Giustozzi's clearly expressed views at §39 of his report as to the risk faced by the appellant if he were returned to Kabul: namely, that it was 'only a matter of time' before he 'would certainly face a reasonable likelihood of targeted killing.'
26. The difficulty with this argument are the expressed reasons for this conclusion (set out in §26 of Dr Giustozzi's report). Having addressed the risk of return to his home province, Dr Giustozzi added, 'Moreover, [the appellant] would not be safe in Kabul either.' However, the evidence supporting this view was plainly evidence of attacks in Kabul on high profile targets. This was consistent with his views expressed in the Landinfo report, referred to in H & B v. United Kingdom.
27. It is clear from the passages in the FtT decision set out above (paragraph 5(e), the penultimate sentence of paragraph 21 and the first two sentences of paragraph 22) that the FtT had understood that the risk was to be assessed by reference to the appellant's low public profile and the passage of time since he had been of interest due to his relationship with his father, and was entitled to do so.
28. Although, the legal basis of the appellant's challenge to the FtT changed and at times was argued to be a perversity argument, at times an irrationality challenge and at times an illegality challenge, by the close of the argument it was based on a failure to take proper account of the evidence. An appeal to the weight attached by a tribunal to evidence given before it faces formidable difficulties which were not overcome in the present case. In my view, however one characterises the appellant's argument, it did not give rise to a successful public law challenge to the findings of the FtT on the risk issue.

Reasonableness

29. The focus of Mr Mackenzie's argument was that the FtT could not reasonably reach the conclusion that it was not unduly harsh to relocate to Kabul without taking into account that he had no family members there. He referred to a passage in AK (Article 15(c)) (above) at [224] that the importance of return and reintegration packages, such as would be available to the appellant, was not to be exaggerated: they were chiefly designed 'to cushion against immediate travails on return.'
30. Mr Sheldon submitted that the existence or absence of family connections was a factor to be taken into account in the assessment of undue harshness but was not dispositive either way: it might for example increase the risk of return if the family member was a prominent supporter of the government living there. In any event, he argued that the reasons provided by the FtT were sufficient to support its conclusions on reasonableness.
31. It seems to me that the FtT's reasoning on this point could have been fuller. Mr Sheldon submitted that it had not been in issue; but whether or not that is so, the findings were plainly sufficient to support the conclusion on the point. The appellant was a mature and resourceful young man, in good health, who had benefitted from an education in the United Kingdom, was fluent in Pushtu and spoke good English. He was also familiar with Afghan culture having lived in Afghanistan for most of his life, had demonstrated an ability to live independently and would receive assistance in resettling. This evaluation is well in line with that in other cases, see for example, AK (Article 15(c) Afghanistan) at [253] and H & B v. United Kingdom at [114].

Conclusion

32. I would dismiss this appeal.

Lord Justice Sales:

33. I agree.