ST (Afghanistan) v Secretary of State for the Home Department, Court of Appeal - Civil Division, October 31, 2018, [2018] EWCA Civ 2382

Resolution Date:October 31, 2018
Issuing Organization:Civil Division
Actores:ST (Afghanistan) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWCA Civ 2382

Case No: C5/2016/1301

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

Date: 31 October 2018

Before:

LORD JUSTICE SALES

and

LORD JUSTICE SIMON

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Between:

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Mr Alasdair Mackenzie (instructed by Birnberg Peirce Ltd) for the appellant

Mr Neil Sheldon (instructed by Government Legal Department) for the respondent

Hearing date: 23 October 2018

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Judgment ApprovedLord 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...

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