AK (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Ward,Lord Justice Tuckey |
| Judgment Date | 10 May 2007 |
| Neutral Citation | [2007] EWCA Civ 535 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2006/1912 |
| Date | 10 May 2007 |
[2007] EWCA Civ 535
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BEAN)
Lord Justice Ward
Lord Justice Tuckey and
Lord Justice Toulson
Case No: C4/2006/1912
MR S SINGH JUSS (instructed by Immigration Advisory Service) appeared on behalf of the Appellant.
MR P PATEL (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal from a judgment of Bean J [2006] EWHC 2139 (Admin) dismissing the appellant's claim for judicial review of the Home Secretary's refusal to treat the appellant as having made a fresh asylum or human rights claim, following the rejection of an earlier claim which had resulted in an unsuccessful appeal.
The Law
Rule 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused, and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and if rejected will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content (i) had not already been considered and (ii) taken together with the previously considered material, created a realistic prospect of success notwithstanding its rejection.”
In WM (DRC) v SSHD [2006] EWCA Civ 1495, decided since the judgment of Bean J, this court considered the proper approach which has to be taken by the Home Secretary when applying that rule and also the proper approach of the court to a challenge to a decision of the Home Secretary under that rule. The key passages in the judgment of Buxton LJ, with which the other members of the court agreed, are paragraphs 6 to 11. There is no merit in my attempting to summarise them and no useful purpose would be served by my simply repeating them. They set out the correct approach.
The Original Application
The judge in paragraphs 1 to 2 of his judgment set out the background. Put very shortly, the appellant is a citizen of Afghanistan of Pashtun ethnic origin. He entered the UK on 9 May 2002 and claimed asylum on the next day. His claim was rejected by the Home Secretary and his appeal was heard by an adjudicator, who delivered his decision on 16 October 2002. The adjudicator accepted that the appellant was entirely truthful in his evidence. His account in brief was that he had been brought up in the north west of Afghanistan. When the Taliban were in power, they forced his eldest brother to fight for them. After the Northern Alliance in the Uzbeks had gained the upper hand, Pashtuns who had fought for the Taliban and their families were at risk. One of the appellant's brothers was shot and killed by an Uzbek party which raided their village. The appellant escaped and fled the country.
However, the adjudicator was not persuaded that the appellant would be at risk of persecution for a Refugee Convention reason or of violation of his rights under Articles 2 and 3 of the Human Rights Convention on return to Afghanistan. This was because there was no reason to suppose that he would be specifically targeted or that he would be at risk merely on account of his ethnic identity. An application for permission to appeal against the adjudicator's determination was refused.
Further Representations
On 22 April 2003, the IAS wrote on the appellant's behalf to the UK Immigration Service by first class recorded delivery post with more representations. These related to the general state of affairs in Afghanistan and the risks to Pashtuns returning to areas from which they had fled. Two years went by without a response. On 16 May 2005 the IAS wrote again. They referred to further material about the general state of affairs in Afghanistan including an ECRE report of May 2004, “Guidelines for the Treatment of Afghan Asylum Seekers and Refugees in Europe”. They also produced material to support the case that the appellant would be personally at risk on his return.
In particular, they enclosed a copy of an affidavit of the appellant's mother. She recounted how, during the period of the war with the Taliban in 2001, she and other members of her family left their home, while certain members of her family stayed behind to protect their belongings. There came a time when her husband was arrested by an Afghan warlord, who accused him of being a member of the Taliban and had him imprisoned. During the war, one of her sons was killed, their property was destroyed and their home was occupied by warlords. Through bribery her husband's business partner managed to secure his release and they then went to live in Iran near to the Afghan border. While they were there, Iranian police raided the house and handed them over to a well-known Afghan warlord, now said to be a member of the Kabul cabinet.
Her husband and sons were imprisoned and accused of being members of the Taliban. The women folk went ultimately to the appellant's brother's house in the Logar province, which is to the south of Kabul. She stated in the affidavit, as translated:
“After we arrived in my brother's house, the Police Kabul came to my brother's home and looking for my son Abdul Wali. They searched the house to interrogate and harassed us and then they took my brother with them to Kabul.”
She went on to describe how she had not seen her husband and sons since then, but at a later date local police had come to her brother's house searching for them.
Another document put forward by the IAS on behalf of the appellant purported to be a letter from the branch of the Afghan Red Crescent Society (“ARCS”) in Logar province stating that her husband and sons had been detained.
On 20 June 2005, the Home Office replied to the IAS rejecting their representations as a fresh claim. The letter set out the Home Office's position about the general state of affairs in Afghanistan without referring to the ECRE report on which the IAS placed reliance. It concluded as to the general situation:
“… it is accepted that Pashtuns in some areas of the country face discrimination and harassment, which can amount to serious injustice and persecution. There is a sufficiency of protection within Kabul and internal flight to Kabul or other areas of the country where Pashtuns are not in the minority, is an option. As a result claims based solely on the Pashtun ethnicity will not generally qualify for asylum or humanitarian protection. A grant of asylum would only be appropriate where an individual is able to show that because of specific facts relating to him/her there was not a sufficiency of protection available and internal flight was not an option.”
The letter then turned to the issue of specific factors and commented on the affidavit from the appellant's mother as follows:
“With regards to the copy of a translated Affidavit dated 22 February 2005 that shows your client's mother, a sister, wife and children have now refuge in Pakistan, your client has failed to provide the original document. Furthermore, an affidavit from a family member cannot add probative or corroborative weight to your client's claim.”
It dismissed the copy of a letter from the ARCS as un-translated and therefore its provenance was un-established.
Judicial Review Proceedings
On 4 July 2005, the appellant issued a claim for judicial review. On 5 August 2005, Mr Rabinda Singh QC sitting as a deputy High Court judge granted permission. There was further correspondence between the parties. Because of what I am afraid can only be described as the abysmal way in which the bundle has been prepared for this appeal, it is difficult to follow the correspondence in any sort of chronological order, but it included some letters to which I should refer.
In January 2006, the Home Office obtained a statement from the ARCS head office in Kabul to the effect that the letter allegedly written by the ARCS Logar branch was not authentic. That, at least, is how the Secretary of State understandably read it. This document was passed on to the AIS. The appellant's response was that the letter from ARCS' head office denying the authenticity of the earlier document from the branch office should not be treated as establishing that the first document was a forgery. I will come later to his reasons for putting forward that case.
At some stage, the appellant produced what purported to be a statement from another relative, General Mohamed Ahmadzai, who is now living in Holland, together with a translation. This purported to confirm that the appellant's father and brother had been imprisoned during the recent troubles in Afghanistan.
On 22 June 2006, a Home Office official wrote what was effectively a further decision letter. That letter acknowledged that the previous letter of 20 June 2005 had not addressed the passage in the ECRE report on Afghan asylum seekers relied on by the IAS, but it commented that this document did not show that Pashtuns in general in Kabul would be subject to persecution or mistreatment within the Refugee Convention or Human Rights Convention.
As to the document from ARCS, the writer continued as follows:
“With respect to the letter purportedly from the Afghan Red Crescent Society (ARCS)… we do not consider this document to be genuine. We have obtained a letter from ARCS, dated 20 January 2006,...
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