As (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Newey,Lady Justice Nicola Davies |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWCA Civ 208 |
| Docket Number | Case No: C5/2018/1968 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 February 2019 |
[2019] EWCA Civ 208
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Upper Tribunal (Immigration and Asylum Chamber)
UTJJ Allen & Jackson
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Newey
and
Lady Justice Nicola Davies
Case No: C5/2018/1968
Ms Sonali Naik QC, Ms Gemma Loughran and Mr Benjamin Bundock (instructed by JD Spicer Zeb) for the Appellant
Mr Sarabjit Singh QC (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 1 st February 2019
Approved Judgment
INTRODUCTION
This is a preliminary hearing in a pending appeal against the decision of the Upper Tribunal in a Country Guidance case about the return of Afghan nationals to Kabul – AS (Safety of Kabul) Afghanistan CG [2018] UKUT 0018 (IAC) (UTJJ Allen and Jackson). It raises a question about the circumstances in which the Tribunal can correct errors in the reasons which it gives for its decisions. The background is as follows.
One of the issues in the Tribunal was the likelihood of residents of Kabul suffering death or injury in “security incidents”. There was evidence before it about both the number of such incidents and the population of Kabul. In a speaking note submitted to the Tribunal as the basis of his closing submissions (which were on 20 November 2017) Mr Sarabjit Singh QC, for the Secretary of State, said (at para. 64):
“Based on the UNAMA 2017 Mid-Year Report, there may be 2,100 civilian casualties in Kabul province this year (as the mid-year figure is 1,048 …). Even if the ‘real’ figure is more like 5,000 casualties, that is still only about 0.1% of the population of Kabul province (if the population is 4.5m). That means that 99.9% of the population of Kabul will not be casualties of indiscriminate violence in Kabul this year. Security situation should be viewed in that context.”
(In fact 5,000 is, more precisely, 0.111% of 4,500,000, but nothing turns on that for our purposes.)
The Tribunal did not promulgate its decision until 23 March 2018. I should note at this stage that a draft was not pre-circulated to counsel, as it would have been had it been a reserved judgment of the High Court, and there was accordingly no opportunity for them to draw any errors to its attention. I return to this point below.
In the course of the recitation of the submissions in its decision the Tribunal said, at para. 106:
“… Population estimates for Kabul city range between 3.5 and 7 million people. The Respondent, assuming that the total civilian casualties for 2017 based on figures from the UNAMA mid-year report are 2,100, submits that that shows a very low percentage of the population affected. Even if there were 5000 civilian casualties in a year, based on a population of 4.5 million, that still equates to less than 0.01% of the population affected.”
When it came to deal with the issue in its actual reasoning, it said (at para. 196):
“However, despite the number and impact of security incidents in and around Kabul city, we find that these are not at such a high level so as to make internal relocation to Kabul unsafe. In particular, although not necessary to reach the threshold in Article 15(c) of the Qualification Directive, we note that the evidence before us shows that the level of indiscriminate violence falls very far short of that sort of threshold and directly affects (by way of death or injury) only a tiny proportion of the population of Kabul city — less than 0.01% even if there were 5000 incidents in a year (more than double the numbers recorded by UNAMA in the first half of 2017 plus the same again assuming the same numbers in the second half of 2017) with a population of 4.5 million. The calculations vary depending on the population estimates but even on conservative calculations with high casualty figures and low population estimates, the percentages of people affected are incredibly small. This remains the case even with significant underreporting of casualty figures by UNAMA based on their strict methodology for casualties to be included.”
It will be seen that although the first of those passages is clearly intended to reflect the submission made in Mr Singh's speaking note, and the second (in substance) to accept that submission, they do not reproduce his percentages. The most striking difference is that the Tribunal uses a figure of 0. 01% (that is, 1 in 10,000), whereas Mr Singh's figure was 0.1% (1 in 1,000); but it should be noted also that it says “less than” instead of “about”. Not only does the Tribunal's quantification of the risk not reflect the submission made, but it is common ground before us that there is no support for it in the evidence and that it is simply an error. To anticipate, the question which gives rise to the present hearing is whether the Tribunal had regard to the erroneous quantification in its actual reasoning or whether it is simply an accidental slip (whether or not literally typographical) in the expression of reasoning based on the correct quantification: I will refer to the former alternative as “a substantive error” and to the latter as “an error of expression”.
Following the promulgation of the Tribunal's decision the Appellant applied to it for permission to appeal on nine grounds. Ground 1 was that:
“In concluding that internal relocation to Kabul is both ‘available’ and reasonable under the Refugee Convention despite the level of insecurity and violence in the city [paras.190–199], the UT made material errors of law.”
Five particular errors were then pleaded, one of which – (c) – was:
“In any event the UT made a serious error of fact, amounting to a material error of law [para. 196]: — they erred as to the calculation of death/injury relative to population, on which finding it placed significant weight in reaching its conclusion on reasonableness.”
That pleading was evidently intended to rely on the error explained at para. 5 above, but, most regrettably, it does not say what the error was; and it is clear that the Tribunal, entirely understandably, failed to appreciate what was being asserted. In its reasons for refusing to give permission on this point (which was on the papers and not at a hearing) it said:
“The Applicant does not identify how the UT erred in fact as to the calculation of the risk of death/injury relative to population explained in paragraph 196, by reference to the evidence before it or otherwise.”
The Appellant filed an Appellant's Notice with this Court. The pleaded grounds were now limited to six and differently expressed. Ground 1 reads:
“The UT found that relocation to Kabul would be reasonable notwithstanding the level of insecurity and violence in the city. In considering that issue, and reaching that conclusion, the UT made a material mistake of fact, amounting to an error of law, namely:
The UT made a serious error fact, amounting to a material error of law [para. 196] – it made a simple but very significant miscalculation regarding risk of death or injury relevant to population, a calculation to which the UT attached primary importance.”
Despite the UT's comment on the original version, that pleading still fails to say what the “significant miscalculation” actually was. This Court has repeatedly said that grounds of appeal should be succinct, but that does not mean that where a specific point is being made it should not be at least identified. In this case, however, unlike the application to the Tribunal, the Applicant had to file a skeleton argument; and that did squarely identify the 0.01%-for-0.1% error.
In accordance with the usual practice in Country Guidance cases the application for permission to appeal was listed for an oral hearing inter partes. That took place before me on 28 November 2018.
It was Mr Singh's case at the hearing that permission should be refused on ground 1 because the reference to 0.01% was clearly a typographical error. The Tribunal had had the correct percentage, with the underlying figures, in his speaking note and it was inconceivable that it had regard to any different percentage in its deliberations: there could be no reason why it should have ignored the figure that it was given and have carried out its own calculations. It was clear that its substantive reasoning was based on the correct figure and there had simply been an accidental error of expression.
Ms Sonali Naik QC, for the Appellant, submitted that the use of the 0.01% figure could not be assumed to be merely an error of expression. It appeared in two separate passages, and the Tribunal departed from the speaking note not only by inserting a zero but also by substituting “less than” for “about”. I return to this part of her submissions in more detail at para. 42 below.
I raised with the parties whether it was legitimate to resolve the problem by asking the Tribunal itself to clarify, if it could, the nature of the error. I pointed out that if the draft had been pre-circulated, or if the error had been properly identified in the grounds of appeal, the Tribunal would certainly have responded to it, either by saying that it was indeed a mere error of expression (typographical or otherwise) or by acknowledging that it had worked on the wrong figure 1; and it would be very unsatisfactory if the failure
to take either of those opportunities meant that it was too late to obtain such a response. Mr Singh agreed, but Ms Naik said that it would be wrong in principle for any approach now to be made to the Tribunal. Neither party was in a position to argue the point fully, and I accordingly directed the present hearing in order to resolve the questionThere are essentially two questions for us:
(A) Is there a...
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