HA (Afghanistan) v Secretary of State for the Home Department

HA, the appellant, is a young man of Afghan ethnicity who has been assessed as, and is now to be taken as, having been born on 1 June 1991 so he now approaches the age of 20. He appeals against an order made in the Asylum and Immigration Tribunal by Senior Immigration Judge Freeman ("the SIJ") on 16 December 2009.

The appellant arrived at Dover in the back of a lorry on 9 December 2008 and claimed asylum. By letter dated 21 May 2009 the respondent, the Secretary of State, refused his application. On appeal, by order dated 16 July 2009, Immigration Judge Kanagaratnam ("the IJ") allowed his appeal. The IJ held that his removal to Afghanistan would represent a breach not only of the Refugee Convention 1951 but also, although it does not appear to have engaged different considerations, Article 3 of the European Convention on Human Rights 1950. On 30 July 2009 another judge of the Tribunal ordered reconsideration of the appeal on the grounds that the Secretary of State's application for reconsideration raised an arguable case that the IJ had perpetrated errors of law. The reconsideration fell to be conducted by the SIJ and he held that the IJ had made a material error of law and, in lieu of the IJ's upholding of the appeal, he substituted a dismissal thereof.

In this further appeal the Secretary of State concedes that the determination of the SIJ is unsound and cannot be upheld. She concedes that the error of law perceived by the SIJ to exist in the IJ's determination did not exist. In the light of that concession she accepts that the appeal should be allowed but contends that the matter should be remitted to the Upper Tribunal for a fresh reconsideration of a somewhat different, wider point, in relation to which (so the Secretary of State says) the IJ had made an arguable error of law, not adequately considered by the SIJ. The appellant, by contrast, seeks to persuade us that there was no error of law of any sort in the IJ's determination, with the result that there would be no jurisdiction to substitute a different determination upon the reconsideration and thus no basis for this court to remit the matter to the tribunal; and that accordingly this court should substitute for the SIJ's order a straightforward order that the IJ's determination should stand.

Apart from an issue as to the appellant's age, which arose because he contended that he was one or two years younger than the age which the social services department of Kent County Council attributed to him and upon which—as I have said—we proceed, the Secretary of State has never challenged the thrust of the appellant's account of the events to which he was exposed in Afghanistan. It was accepted that he was born and brought up in a small village in the province of Logar and that, as I will explain, he lived for a short time with a step-uncle, whom I will describe as the uncle, in Kabul.

The error of law in the IJ's determination which the SIJ wrongly perceived to exist related to the IJ's conclusion that, if returned to Afghanistan, it would be unreasonable for a particular reason to expect the appellant to return to live in Kabul. Equally, what I have called the somewhat different, wider point which the Secretary of State charges the SIJ as not having dealt with adequately considered and which in her submission should lead to remittal also relates to the evidence about the appellant's circumstances in Kabul. So clearly it is to that area of the evidence that we should in particular address ourselves.

The accepted facts are that, when at home in the province of Logar, the appellant's father sent him to a school which taught a Western curriculum and which for that reason attracted the disapproval of the Taliban. In about 2006, when the appellant was aged about 15, leaflets were distributed to the homes of the boys who attended the school: they included threats of violence towards the boys if they continued to attend it. Shortly thereafter, in an incident in which the appellant was not directly involved, two boys who attended that school were killed; and the school was permanently closed.

In due course the appellant's father determined that, if the appellant was to receive further education, he had to go to stay with the uncle in Kabul and to attend school there. Although all the dates are hazy, the gist of the evidence is that he went to Kabul in about the Spring of 2007 and began to attend school there. Again it was a school with a Western curriculum. After about three months an incident occurred in which the appellant was directly involved. He was walking with a group of boys from the school when shots were fired at them; one of the boys fell to the ground, covered in blood. I had not understood the appellant's evidence to be that that boy actually died but I may have misunderstood the evidence in that regard. Such was certainly the understanding of the IJ and of the SIJ. At all events the appellant ran away and, in circumstances to which I will return, his father collected him from Kabul and brought him back home to Logar, where, for an extended period of time, possibly as long as a year, he lived without going to school and indeed without leaving the home save on rare occasions when his family considered it safe for him to do so.

In about September 2008, following arrangements made by his father with an agent, the appellant set off on the long journey to the UK which culminated in his arrival here on 9 December.

At the hearing before the IJ on 10 July 2009 the appellant gave oral evidence that, in a recent telephone conversation, his father had informed him that two weeks earlier extremists had entered the family home in Logar and had beaten him, the father, had searched the house and had asked where the appellant was.

It was the contention of the appellant before the IJ that he was at risk of persecution both in his own village and in Kabul in that he was a member of a social group of young boys with a Western education and thus with a perceived political opinion antithetical to Islam and that he was known to extremists both in his village and in Kabul. Both aspects of this contention found favour with the IJ.

It will be convenient first to address the perceived error of law in the IJ's determination which the SIJ wrongly identified. I regret having to descend into some detail in this regard because it is an agreed fact before us that the SIJ did fall into error. It seems to me, however, to be no more than an elementary courtesy to the SIJ that I should spell out the error which has been accepted and upon which we proceed.

The relevant part of the SIJ's determination is as follows:

"3 Returning to the point of real interest, which is whether the judge was wrong in law to find that the appellant would be unsafe on return to Kabul, I shall start by accepting [the point made by the advocate for the appellant] that, having found (and this is not challenged) that the appellant would be at real risk on return to his home area (a village in Logar province), all the judge needed to find, if he were to allow the appeal on asylum grounds, was that he could not reasonably be expected to return to Kabul: see Januzi v SSHD [2006] UKHL 5.

4 That however should not distract anyone from the real question of fact in this case: this appellant has an uncle with whom he lived with in Kabul and who, so far as can be seen on all the evidence, is still there. The only reason why the appellant should or could not go back to live with him on return is if he would be unsafe there. It was the uncle's view on that, at the time in question, which made him send him home. …

9 The difficulty for the appellant with the judge's findings … is that the judge referred, and apparently attached considerable importance to background evidence about attacks on schools 'in the region in which the appellant lived'. On a closer look, this turns out to mean Logar, and not Kabul: both sides agree that there is no such evidence about schools in Kabul.

10 Kabul is, as everyone with any reason to follow events in Afghanistan is well aware, by far the most closely monitored place in the country. If there were reports of regular attacks on schools in Logar, then in my view any repeated similar attacks in Kabul would have certainly been internationally reported. While the judge was entitled to accept on the facts of this appellant's individual case that the one he related had taken place, there is no evidence at all that it formed part of any pattern so far as Kabul is concerned.

11 Even on this appellant's own case, he was not personally 'targeted' in Kabul, but came under fire, though unscathed, as part of a group of boys identified as coming from the school in question. That was in (allowing for a year back in the appellant's village, followed by 3 ¹/₂ months' travel, before the appellant's arrival here in December 2008) in mid-2007. There have been no reports of attacks on pupils at that or any other school in Kabul since.

12 In my view the background evidence referred to by the judge (and there is no more even now of any...