H K K v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Perkins,Smith,Lane J |
| Judgment Date | 22 October 2018 |
| Neutral Citation | [2018] UKUT 386 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 October 2018 |
[2018] UKUT 386 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE HONOURABLE Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Perkins
UPPER TRIBUNAL JUDGE Smith
For the Appellant: Mr B Bedford, Counsel instructed by Sultan Lloyd solicitors
For the Respondent: Mr S Najib, Counsel instructed by Government Legal Department
HKK (Article 3: burden/standard of proof) Afghanistan
(1) It has long been a requirement, found in the case law of the European Court of Human Rights (“ECtHR”), for the government of a signatory state to dispel any doubts regarding a person's claim to be at real risk of Article 3 harm, if that person adduces evidence capable of proving that there are substantial grounds for believing that expulsion from the state would violate Article 3 of the ECHR.
(2) This requirement does not mean the burden of dispelling such doubts shifts to the government in every case where such evidence is adduced, save only where the claim is so lacking in substance as to be clearly unfounded.
(3) Article 4.5 of the Qualification Directive (Council Directive 2004/83/EC) provides that, where certain specified conditions are met, aspects of the statements of an applicant for international protection that are not supported by documentary or other evidence shall not need confirmation.
(4) The effect of Article 4.5 is that a person who has otherwise put forward a cogent case should not fail, merely because he or she does not have supporting documentation. Nowhere in the Directive is it said that a person who has documentation which, on its face, may be said to be supportive of the claim (eg an arrest warrant or witness summons), but whose claim is found to be problematic in other respects, has nevertheless made out their case, so that the burden of disproving it shifts to the government.
(5) When national courts and tribunals are considering cases in which the ECtHR has decided to embark on its own fact-finding exercise, it is important to ensure that the ECtHR's factual conclusions are not treated as general principles of human rights law and practice.
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was made by the First-tier Tribunal. As this is a protection claim, it is appropriate to make that order. Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies, amongst others, to both parties. Failure to comply with this direction could lead to contempt of court proceedings.
This is the decision of us all. The section dealing with the burden and standard of proof was primarily written by Lane J and the remainder of the decision was written by UTJ Smith. The section setting out the submissions concerning the facts of the case was drafted shortly after the hearing.
The Appellant appeals against a decision of First-Tier Tribunal Judge Moan promulgated on 21 November 2016 (“the Decision”) dismissing the Appellant's appeal against the Secretary of State's decision dated 19 May 2016 refusing his protection claim. The Appellant was granted discretionary leave to remain on the basis of his age until 22 January 2017 (under paragraph 352ZC of the Immigration Rules). His appeal therefore concerns only his protection claim.
The Appellant is a national of Afghanistan born on 22 July 1999. He entered the UK clandestinely in 2015. He claimed asylum on 26 August 2015. At the time of his claim, the Respondent's decision and the hearing and decision of the First-tier Tribunal he was aged under eighteen. By the time of the hearing before us, the Appellant had reached his majority but that is only relevant in the event that we find a material error of law in the Decision and have to re-make the decision for ourselves (for reasons we will come to).
The Appellant claims that his father was a member of the Taliban (having been forcibly recruited by them), that his parents were killed by the Taliban and that the Taliban had tried forcibly to recruit the Appellant. He claims that he is at risk of forcible recruitment by the Taliban on return to his home area (Nangarhar). The Respondent did not accept that the Appellant's father was associated with the Taliban and rejected the claim of forced recruitment as being inconsistent with the background evidence about the activities of the Taliban. The Respondent also rejected the Appellant's claim that his parents were killed by the Taliban due to inconsistencies in the Appellant's account.
In relation to risk on return, the Judge found that, as a young man with no family in Kabul, it would not be reasonable for him to stay there alone but that, as he has family in Nangarhar Province, those family members could assist him to return to that area. The Judge discounted the failure of the Respondent to carry out family tracing as not relevant to the protection claim. She also considered whether there was a risk of a breach of Article 15(c) of the Qualification Directive by reason of the general level of violence in Afghanistan and in particular the Appellant's home area but rejected that claim also based on the extant country guidance which the Judge found not to be displaced by the later background and expert evidence relied upon by the Appellant.
Permission to appeal was refused by First-tier Tribunal Judge J M Holmes on 9 December 2016 and by Upper Tribunal Judge Southern on 31 January 2017. However, following a successful judicial review challenge to Judge Southern's decision, on 22 November 2017, the Vice President of the Tribunal granted permission to appeal.
The matter comes before us to decide whether the Decision contains a material error of law and, if we so find, either to re-make the Decision ourselves or remit the appeal to the First-tier Tribunal to do so.
An appellant in a human rights appeal who asserts that his or her removal from the United Kingdom would violate Article 3 of the ECHR must establish that claim. In other words, the appellant bears the burden of proof. The standard of proof requires the appellant to show a “reasonable likelihood” or “real risk” of Article 3 harm.
The Immigration Appeal Tribunal so held in Kacaj (Article 3 – Standard of Proof – Non-State Actors) Albania* [2001] UKIAT 00018 (“ Kacaj”). At paragraph 12 of its determination, the IAT said that “the standard may be a relatively low one, but it is for the applicant to establish his claim to that standard”.
Section 107(3) and (3A) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) provides that practice directions made under section 23 of the Tribunals, Courts and Enforcement Act 2007 may require the First-tier Tribunal and the Upper Tribunal to treat a specified decision of, amongst other bodies, the Immigration Appeal Tribunal, as authoritative in respect of a particular matter.
Practice Direction 12 of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal provides that a reported determination of, inter alia, the IAT which is “starred” shall be treated as authoritative in respect of the matter to which the “starring” relates, unless inconsistent with other authority that is binding on the Tribunal.
It is undisputed that Kacaj is “starred” for what it says in paragraph 12 of the determination. There is no domestic case law that is inconsistent with Kacaj. On the contrary, the higher courts consistently follow the same approach. Thus, for example, in AM (Zimbabwe) and Another v Secretary of State for the Home Department [2018] EWCA Civ 64, Sales LJ held:-
“16. It is common ground that where a foreign national seeks to rely upon Article 3 as an answer to an attempt by a state to remove him into another country, the overall legal burden is on him to show that Article 3 would be infringed in his case by showing that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country …”
In the light of this, Mr Bedford accepts, as he must, that the Appellant has a burden to discharge. He submits, however, that what he describes as the “standard direction on appeal against the refusal of an international protection claim” needs modification in order to take account of what he says is the “clear and consistent” line that has emerged from the European Court of Human Rights in the past decade. In this regard, Mr Bedford places particular reliance upon the judgment of the Grand Chamber in JK and Others v Sweden (Application no. 59166/12) (“ JK”), given on 23 August 2016.
According to Mr Bedford, JK holds that the burden on applicants for international protection is discharged when they adduce evidence which is “capable of proving” a real risk on return. At this point, the burden shifts to the government to dispel any doubts or uncertainty.
Mr Bedford further submits that:-
“Any new or modified direction in the Tribunal on the burden and standard of proof must take account of the effect of the Supreme Court decision in R (Kiarie); R (Byndloss) v SSHD … [2017] UKSC 42 at [54], [35] that for the purposes of section 82 [of the 2002 Act] any proposed appeal must be taken to be arguable in the absence of a certificate that it is clearly unfounded.”
The “hard” form of Mr Bedford's submission (to adopt his own description) is, accordingly, that whenever the respondent decides not to certify a human rights claim (at least, one involving international protection), that claim must, logically, involve “evidence...
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