England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		9 March 2007

1. MR JUSTICE MITTING: In this judicial review the claimant challenges the decision of the Secretary of State to refuse to treat fresh representations made by him as a fresh claim under paragraph 353 of the Immigration Rules. The letter of refusal is dated 26 May 2006 although the representations were made as long ago as 7 December 2004.
2. The claimant had arrived in this country in 2002 and had claimed asylum two days after arrival on 7 June 2001. His claim was rejected by the Secretary of State.
3. The claimant appealed to an adjudicator who, in a determination and reasons promulgated on 23 April 2003, rejected his appeal. She did however make significant findings of fact in his favour. In paragraph 39 of her determination and reasons it is stated:

" ..... I find that I am able to accept the core of the appellant's argument that is that owing to his membership of the Hezbi-e-Islami a group which was responsible for the killing of his cousin's sons, the appellant was held responsible for their deaths by his cousin, now a member of the Northern Alliance. I accept that the appellant was threatened and beaten by his cousin and a number of armed men who came with the cousin. I also accept that the appellant's wife was harassed and hit with a rifle butt on her way home from work in an attempt by the appellant's cousin to discover the appellant's address. I also accept that the appellant and his wife lost their unborn child whilst trying to escape from a group thought to be connected to the appellant's cousin who were attempting to forcibly enter their home."

The reason for rejection of the appeal was contained in the first two sentences of paragraph 40 of the determination and reasons:

"I find that the appellant's cousin is not an agent of persecution within the terms of the Convention. I do not accept that the Northern Alliance has adopted this dispute between the appellant and his cousin, and as such the appellant does not have a Convention reason founding his appeal."

4. The adjudicator went on to find that a sufficiency of protection stemming from international forces in Kabul was available to the claimant. She concluded in paragraph 41 that he was not at risk from the Northern Alliance.
5. Since the adjudicator's decision the Immigration Appeal Tribunal, in RS (Afghanistan) [2004] UKIAT OO278, has arrived at a significant view of the safety of former members of Hezbi-e-Islami in Afghanistan. The tribunal heard evidence from Professor Lau which it accepted as credible. It set out extensively what Professor Lau said in his report, which included paragraph 13:

"13 ..... In my opinion the most serious risk arises from his association with the Hezb-I-Islami. The group is without doubt a very dangerous terrorist organisation determined to attack and destroy the current government and to turn Afghanistan into a 'pure' Islamic state .....

14 In my opinion it is difficult to discount the appellant's fear as irrational only because his own association with the Hezb-I-Islami ceased some time ago ..... " -

it appears about 5 years before -

" ..... Given the substantial financial rewards for information leading to the arrest of suspected terrorists promised by the US there is ample motivation to 'test' the knowledge of anyone who is believed to have been close to the Hezb-I-Islami. In my opinion the appellant's fear in this regard is well founded."

At paragraph 17 he observed -

"that the current government has little interest in protecting suspected terrorist[s] ..... "

and the -

"legal system is virtually non-existent ..... "

6. The tribunal accepted as credible the assertion of the appellant in RS that -

"once an individual joined a group or party then others considered that he was a member 'till the end'."

Its final conclusion was:

" ..... known low-level former supporters are still likely to be at risk."

7. In this case, on the adjudicator's finding, this claimant was at risk not from the Northern Alliance as such but a member of it - his cousin - for reasons connected with killings said to have occurred many years ago.
8. Miss Neenan drew my attention to answers he gave after he ceased to be a member of it, since arriving in this country. However his involvement was longer than RS. The activities of his cousin, which the adjudicator accepted as likely to be true, demonstrate that a member, assisted by other members, of the Northern Alliance, was actively interested in pursuing the claimant in more recent years, indeed, right up until his departure in summer 2002.
9. In the decision letter of 26 May 2006 the Secretary of State noted in paragraph 14 that the adjudicator had found that the claimant's problems resulted from a dispute with his cousin and did not involve the Northern Alliance. That is not a wholly accurate statement of the adjudicator's finding, which was to the effect that the dispute had not been adopted by the Northern Alliance. The Secretary of State went on to rely on the findings of a Danish fact-finding mission which, in summary, did not accept all that Professor Lau had said in RS. Plainly disagreements about the exact conditions in Afghanistan are a matter of reasonable debate.
10. The test which I have to apply is whether or not, in the light of the tribunal's findings in RS, this claimant has a realistic prospect of success in an appeal to an immigration judge. Miss Neenan does not dispute the principle upon which that claim is based. She accepts that the evidence of Professor Lau - accepted in RS - is a new factor in the equation which was not available to the claimant when he made his appeal.
11. In my view, the findings of the adjudicator - taken together with the new material accepted as credible in RS - demonstrate that this claimant has an appeal to the immigration judge with a realistic prospect of success. His claim is by no means certain to succeed, but it cannot be ruled out as wholly unlikely to succeed. He has no difficulty on credibility grounds.
12. The sole issue for the immigration judge to decide will be whether or not, in the light of Professor Lau's evidence and the findings of the tribunal in RS, this claimant's low level membership of Hezbe-i-Islami, coupled with the more recent interest of his cousin for private reasons, does put him at risk of persecution or ill treatment in Afghanistan. That is an issue on which he may or may not succeed. In my view, he is entitled to pursue it by way of appeal.
13. The claimant seeks to challenge the Secretary of State's decision on the second ground that his cousin is in fact a prominent member of the Northern Alliance, so that, for that reason alone, he would be at risk if returned to Afghanistan. I need say no more about that ground other than Miss Jones realistically accepts that there is no evidence in support of it and it is, on any view, a weaker ground on which to rely. He will be entitled to pursue that ground if he so chooses before the immigration judge, but I simply allow his claim on the first of the two grounds on which he relies, not the second.
14. For those reasons this claim for judicial review succeeds. I quash the Secretary of State's decision notified by letter dated 26 May 2006.
15. I invite representations on what else I should do.
16. MISS JONES: The claimant has an application for the costs of bringing these judicial review proceedings.
17. MR JUSTICE MITTING: Before you go to costs, are you seeking an order that the Secretary of State allows a right of appeal to the claimant?
18. MISS JONES: Yes, that the Secretary of State recognises this as a fresh claim in paragraph 353 of the Immigration Rules.
19. MISS NEENAN: Can I take some instructions?
20. MR JUSTICE MITTING: Yes. (Pause)
21. MISS NEENAN: I do not oppose that.
22. MR JUSTICE MITTING: I order that the Secretary of State treats the claim as a fresh claim and so allows to the claimant a fresh right of appeal. Do you have a claim for costs?
23. MISS JONES: Yes, a total amount of £6,113 over the entire proceedings.
24. MR JUSTICE MITTING: I have other matters in the list. I am reluctant to delay if there is a dispute about the quantity of costs. What would you say about the principle, first?
25. MISS JONES: Costs should follow the event. I have not seen a schedule so it is impossible for me to say, but perhaps to save your time those instructing me could write to the Secretary of State with details of the costs.
26. MR JUSTICE MITTING: I am reluctant to burden a costs judge with detailed assessment if this can be done on paper.
27. MISS JONES: Yes.
28. MR JUSTICE MITTING: If it can be done in the Administrative Court without need to go to a costs judge.
29. MISS JONES: Given the amount, it would seem unnecessary to drag the matter out if my friend agrees with that.
30. MISS NEENAN: That seems sensible. Perhaps the parties can come to an accommodation.
31. MR JUSTICE MITTING: I order that the defendant pay the claimant's costs of the judicial review. If no agreement, the amount of the costs will be determined on the papers by a judge of the Administrative Court.
32. MISS JONES: Thank you.
33. MR JUSTICE MITTING: You do not want a public funding assessment?
34. MISS JONES: This is not a publicly funded case.
35. MR JUSTICE MITTING: So be it. Thank you both for the economy and efficiency with which you conducted this case.
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