HS (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Carnwath,Lord Justice Wilson,Lord Justice Ward |
| Judgment Date | 18 June 2009 |
| Neutral Citation | [2009] EWCA Civ 463,[2009] EWCA Civ 771 |
| Date | 18 June 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/1888 & B,Case No: C5/2008/2742 |
[2009] EWCA Civ 463
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Before: Lord Justice Keene
Case No: C5/2008/2742
[AIT No: AA/00286/2008]
Ms L Dubinsky (instructed by Messrs Lawrence Lupin) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Keene:
This is a renewed application for permission to appeal on certain grounds against a decision of the AIT dismissing the applicant's appeal in respect of her claims for asylum and under the ECHR and associated claims. The application for permission to appeal was dealt with on paper by Richards LJ. He granted permission to appeal on certain grounds, essentially those concerning Article 8, but he refused permission on the other grounds of appeal. The appeal on Article 8 grounds has now been allowed by consent.
I am today concerned with a renewed application on the other grounds. There are five of those in number. It seems to me, having heard Miss Dubinsky this morning, that this is a case where permission to appeal is to be granted. I do so on all those five grounds, though I say straightaway that some seem to me to be stronger than others. In particular, it seems to me that the first ground of challenge, which was in essence that it was not open to the AIT on reconsideration to widen the grounds of challenge to the first Immigration Judge's decision so as to include a challenge as to the reasons given for finding credibility, is something which, frankly, in the light of the way the matter was dealt with at that hearing by the representative for the applicant, has very little force.
Nonetheless, since the matter is going to be dealt with in any event on other grounds I am prepared to include ground one within the scope of the appeal, so that at least that particular issue can be debated and some further guidance given by this court on the particular role at first-stage reconsideration to the matter that ground one relates to. So ground one is included within the scope of the appeal, even though as I say I have some doubts as to whether it has the same force as the other grounds. It seems to me, in particular, that Miss Dubinsky does have merit in her arguments that the reasons given by the first Immigration Judge, Immigration Judge Martins, for accepting the credibility of the applicant were adequate. Miss Dubinsky has put forward some convincing arguments on that particular topic.
I will therefore grant permission to appeal on grounds one to five that have so far been refused. It can be heard by two Lords Justices of Appeal and a High Court Judge, if appropriate. Three hours would be adequate, and a costs assessment for your legal aid.
Order: Application granted.
[2009] EWCA Civ 771
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Carnwath and
Lord Justice Wilson
Case No: C5/2008/1888 & B
[AIT No: AA/00286/2008]
Ms L Dubinsky (instructed by Lawrence Lupin) appeared on behalf of the Appellant
Mr S Singh (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
(As Approved)
This is an appeal against a reconsideration decision made by the Asylum and Immigration Tribunal. The appellant made claims to asylum under Article 3 and 8 of the Human Rights Convention. Her Article 8 claim has now been conceded following the grant of permission by Richards LJ. Keene LJ has since granted permission to appeal on the grounds which are before us.
I take the summary of her case from her counsel's skeleton. She is an Afghan national who arrived in the UK and claimed asylum on 27 November 2007. Her youngest child arrived with her at the same time and is dependent on her claim. Her claim is that she and her husband were deliberately active in the PDPA, the Afghan Communist Party, and that her husband was a senior official in the KHaD, the security service under the former communist regime. After the fall of the communist regime, her husband was repeatedly detained and persecuted, first by the Mujahadeen and then by the Taliban because of his links with the former regime. He fled Afghanistan in 1999 to the UK. She subsequently relocated to Kabul with her children seeking safety but she was harassed by members of the public who were aware of her own and her husband's political past. Her home was raided in September 2006 by armed men allied to the current Afghan government. She was subsequently targeted by a local commander/warlord with ties to the current regime demanding first her elder then, after the eldest daughter was sent out of Afghanistan, her youngest daughter in marriage.
Subsequently the appellant's home was repeatedly raided and her family repeatedly attacked. During these raids her father was severely beaten and died from his injuries. Her son was temporarily abducted and she herself was raped. That is —in very short summary —her case.
It is also necessary to bear in mind what happened to her husband. He applied in this country for asylum and made claims under Articles 2, 3 and 8 of the Convention. That was in August 2007. In August 2007 Immigration Judge Hodgkinson heard that claim. He accepted that the husband had been a senior KHaD officer and was at real risk of serious harm if returned to Afghanistan as a result of his former role. However, he found that he had been responsible for torture in his KHaD role and was therefore excluded from the Refugee Convention under Article 1F and from humanitarian protection under paragraph 339B of the Immigration Rules. That finding was confirmed when a request for reconsideration to the Secretary of State was refused. That was on 3 January 2008.
The consequence is that he has been granted discretionary leave until 1 June 2009, but his application for extension of that is outstanding. Going back to the position of the applicant before us, her claim was refused by the Secretary of State on 20 December 2007:that is, before the final confirmation of the decision on the husband's case. The Secretary of State's decision letter is avery detailed review of her case running to some eight pages,in the course of which it is made clear that the Secretary of State does not accept her credibility.
The matter then came before Immigration Judge Martins, who gave her decision on 3 April 2008. Before Judge Martins the appellant was represented by counsel, Ms Shirjan, and she gave evidence. There was also a medical report prepared on her behalf by Dr Emma Russell, chartered clinical psychologist. Immigration Judge Martins set out the material that had been put in front of her and the arguments in considerable detail. Her decision runs to some 24 pages. In the course of that, she summarised the Secretary of State's reasons for challenging the credibility of the claimant. She also referred to the previous decision in relation to the husband and she referred to the medical report and to the submissions that had been made by each party on that.
Against that extended background, the reasons for the conclusion are stated quite shortly. The material paragraphs read as follows:
“95. I had the opportunity of hearing and observing the appellant give evidence which she did in a straightforward manner and against the background of the objective evidence and the doctor's report I find her credible. I note that the core of the appellant's husband's account of what happened to him in Afghanistan was accepted by the Immigration Judge in his appeal. I accept that the appellant herself was politically inclined and had involvement with the Communist Party as did her husband. She is a family member of a high ranking KHaD officer. I find that satisfactory explanations have been given by the appellant herself and by Dr Russell for the confusion that occurred in terms of her accounts and the occasions on which the commander's men and family attended at her home. The appellant herself has stated that she became confused and the doctor's report is to the effect that in the light of her mental state the confusion is not unusual or surprising. The only significant discrepancies in the appellant's account were in this respect.
96. I find that as a family member of a high-profile KHaD officer and as someone who had communist leanings herself and now as a woman without any male protection in Afghanistan, on her return, she will be at risk of persecution on account of the political opinion imputed to her and on account of the fact that she is a member of a particular social group namely women in Afghanistan.
97. In the light of these findings I also conclude the appellant would be at risk of inhuman and degrading treatment in breach of her rights under Article 3.”
It should be noted that immediately before stating her conclusions she referred to a Country Guidance case called NS [2004] UKIAT 00328, which dealt with the position of women in Afghanistan. That, among other things, discussed the position of women in Afghanistan and made clear that membership of a particular social group is not...
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