AF ( “Warlords/commanders”- evidence expected)

JurisdictionEngland & Wales
JudgeJohn Freeman
Judgment Date15 October 2004
Neutral Citation[2004] UKIAT 284
CourtImmigration Appeals Tribunal
Date15 October 2004

[2004] UKIAT 284

IN THE IMMIGRATION APPEAL TRIBUNAL

NATIONALITY, IMMIGRATION AND ASYLUM ACTS 1971-2002

Before:

John Freeman (a vice-president)

K Drabu (a vice-president) and

Mrs LR Schmitt

Between:
Secretary of State for the Home Department
Appellant
and
AF
claimant
Representation:

Miss R Brown for the Secretary of State

Mr J Bild for the claimant

AF (“Warlords/commanders”- evidence expected) Afghanistan CG

DECISION ON APPEAL

This is an appeal from a decision of an adjudicator (Mr PW Cruthers), sitting at Manchester on 12 January 2004, allowing an appeal by a Hazara citizen of Afghanistan, on asylum and human rights grounds. Permission to appeal was given on the basis that the adjudicator might not have been entitled to find that one Commander Qazavi (whom he accepted the claimant genuinely feared) actually occupied “… a position of power in the current administration” without any background evidence to support that finding.

2

We bear in mind CA [2004] EWCA 1165, which makes it clear that, contrary to what some people had thought, the requirement in the present (2002) Act for there to be a point of law involved for an appeal to be allowed is not merely a threshhold requirement at the permission stage, but a substantive one, relating to the decision at hearing. The definition of such a point has recently been somewhat extended in E & R [2003] EWCA Civ 49. However most lawyers are familiar with the long-established general rule that deciding an issue on insufficient evidence does not raise a point of law; but deciding it on no relevant evidence at all does.

3

Those involved in this field will also be familiar with the approval given in S [2002] EWCA 539 to what Laws LJ described in these terms at § 27:

While in our general law this notion of a factual precedent is exotic, in the context of the IAT's responsibilities it seems to us, in principle, to be benign and practical.

At that time of course, the Tribunal had jurisdiction to entertain appeals on points of fact as well as law; but it is interesting to compare the Court of Appeal's assessment of their own position in Shirazi [2003] EWCA Civ 1562. The Court of Appeal of course required an error of law to entertain an appeal; but they were able to find one in there being Tribunal decisions on the general factual point in question which were inconsistent with each other..

4

If that situation involves an error of law by those responsible, then it must equally be the responsibility of the Tribunal to do what we can to prevent its arising in the first place, and in particular to provide adjudicators with suitable general guidance. A system of “country guidance” cases has been developed since the decision in Shirazi with that object in mind, and this will be one of them. So far as it is of general application (which will be made clear), adjudicators will be expected to follow it, and it is anticipated that the Tribunal will regard any failure to do so as raising a point of law.

5

The passage on which the point turns in this case is at § 59, referring to the claimant's belief that Qazavi would be able to wreak vengeance on him on return to Kabul:

The exact basis of the appellant's belief has not been spelt out but given the way that commanders have come and gone from power under various governments in Afghanistan in recent years, it seems to me that there is a real possibility that Commander Qazavi does hold a position of power in the current administration.

Put like that, the basis for the adjudicator's decision on this point seems to involve a complete failure to inquire...

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11 cases
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    • United Kingdom
    • Court of Session (Inner House - Extra Division)
    • August 2, 2007
    ...leave to appeal by the Court of Session on 7 March 2006. Cases referred to: AF (War lords/Commanders: Evidence expected) Afghanistan CG [2004] UKIAT 00284 AM (Risk: War lord - Perceived Taliban) Afghanistan CG[2004] UKIAT 0004 Ahmed (Tanveer) v Secretary of State for the Home Department [20......
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    ...CIPU list not comprehensive) Afghanistan [2005] UKIAT 00096, approving AF ( “Warlords/commanders”, evidence expected) Afghanistan CG [2004] UKIAT 00284, says this “10. … As we understand it, [the CIPU Country Report October 2003] and other main sources on Afghanistan fully recognise that ev......
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