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

Lord Justice Longmore:

This is an application for permission to appeal by a young Afghan. He was born on 27 September 199Around about 2001, when he was ten years old, the Taliban went into decline. Indeed it is even said that they were overthrown, although recent events show that does not seem to have been a permanent state of affairs, and it is said that, after that, local security forces started looking for the applicant's father because his father had worked for the Taliban. It is said that he was compelled to work for the Taliban, but nevertheless the local security forces in the area where the applicant and his father had their family home were keen to find him and suspected him of concealing weapons. In 2007 the local security forces did find the applicant's father and they killed him. That resulted in the applicant leaving Afghanistan. He arrived aged 16 on 30 November 2007 and applied for asylum as a refugee. That was refused by the Secretary of State on 20 March 2008 in a letter which challenged the credibility of his account. The applicant appealed that decision and in September 2008 Immigration Judge Cameron upheld that appeal and said that he was satisfied that the applicant was at risk from the local authorities in Afghanistan in his home area after his father's murder by them.

The Secretary of State chose to appeal that decision and on 26 September 2008 Senior Immigration Judge Nicholls made an order for reconsideration on the basis that Immigration Judge Cameron had given no adequate explanation of why the applicant now faced a risk of persecution in Afghanistan despite what had happened in earlier times. It may be noted that Senior Immigration Judge Nicholls did not in terms suggest that the findings of credibility were insufficiently founded.

The reconsideration took place before Senior Immigration Judge Southern and he held that there was an insufficient recognition by Immigration Judge Cameron of the inconsistencies relied on by the Secretary of State in the account given, and he therefore decided that there should be a full reconsideration and that all issues would be at large including the applicant's credibility.

So a new determination was ordered and that was conducted by Immigration Judge Davey who dismissed the applicant's appeal, holding that the applicant was not credible and that there was no risk to him on return. He relied in particular on the fact that there was no evidence of any physical search for weapons in the family house after the applicant's father had been killed; secondly that if there had been a genuine belief in such weapons existing on the part of the local security forces the family would not have been allowed to stay in the house; thirdly that if they intended to harm the applicant it was surprising that they had allowed him to escape and that in any event the applicant's account of the escape was not credible.

Senior Immigration Judge Gleeson refused permission to appeal from that decision and there is now an application to this court for permission to appeal which was refused on paper by Elias LJ and it is put on two grounds: firstly that Immigration Judge Davey erred in law when concluding that the determination of the first immigration judge, Immigration Judge Cameron, was vitiated by an error of law regarding his findings as to the applicant's credibility; and secondly that the second immigration judge, Immigration Judge Davey, erred in law by himself failing to provide sufficient reasons for rejecting the applicant's credibility.

I pointed out to Mr Middleton at the beginning of his oral application that there was a certain irony in saying that the decision of Immigration Judge Cameron was in fact perfectly well reasoned while that of Immigration Judge Davey was not, when Immigration Judge Davey had given his reasons for rejecting the applicant's credibility in far greater detail than Immigration Judge Cameron had given for accepting his credibility. I do in fact refuse permission to appeal on the second ground since it seems to me that the reasons given by Immigration Judge Davey if he was right to embark on that exercise at all do not reveal any error of law. However, I am sufficiently troubled by the first ground which does require some expansion and indeed has been expanded in the skeleton argument to make it clear that not only is it being said that Immigration Judge Cameron's findings were reasonably open to him, but it was also said that Senior Immigration Judge Southern should not have extended the ambit of the reconsideration from that which had been ordered on the preliminary application by Senior Immigration Judge Nicholls, who appeared not to be troubled by the findings as to credibility but only the findings as to why, in the light of the earlier findings, the applicant should have been at risk, as he put it, “now” on return. I am sufficiently troubled by that aspect of the matter to give Mr Middleton permission to appeal but only on ground one of his grounds. That ground should be amplified so that it does accord with the arguments set out in the skeleton argument, but I will order that the skeleton argument shall stand as the skeleton argument in the appeal provided that the ground on which I have granted permission is amplified to include what is stated in the skeleton argument in the way I have described.

Order: Appeal allowed

Hearing dates : Friday, 7th May 2010

Lord Justice Sullivan :

Introduction

Although this appeal is, as a matter of form, an appeal against the Determination promulgated on 18 ^th March 2009 of Immigration Judge Davey on reconsideration (the 2009 Determination) to dismiss the Appellant's appeal against the Respondent's rejection of his claim for asylum, as a matter of substance the Appellant contends that reconsideration of his appeal was unjustified because the Tribunal erred in concluding that there was a material error of law in the Determination dated 12 ^th September 2008 of Immigration Judge Cameron (the 2008 Determination) allowing his appeal. Thus, the focus of this appeal is on the lawfulness of the 2008 Determination. If reconsideration was justified because it contained a material error of law, there is no challenge to the 2009 Determination.

Background

The Appellant is a young Afghan. He was born on 29 ^th July 1991. He claimed asylum on arrival in the UK on 30 ^th November 2007. In summary, he claimed that he and his family were Hazaras. His father had been forced to work for the Taliban in order to protect his community from being targeted by them. As a result, when the Taliban fell his father was pursued by the Afghan authorities and killed by them in or about September 2007. After his father's death the authorities targeted the Appellant and his mother because they believed that he and his mother had information as to the whereabouts of his father's guns and ammunition. After the last visit of the authorities in October 2007 the family, comprising the Appellant, his younger brother and their mother, fled Afghanistan with the assistance of an agent. The family became separated and the Appellant has had no contact with his mother and brother since the family left Afghanistan.

In a decision letter dated 20 ^th March 2008 (the decision letter) the Respondent rejected the Appellant's claim because his account was “considered to be incredible” (para.34). In paragraphs 27–33 of the decision letter the Respondent gave seven reasons why the claim had not been believed (see below, para.4). The decision letter further stated in paragraphs 35–40 that even if the claim had been accepted the Appellant could still safely return to Afghanistan because (i) the threats made to the family after the Appellant's father's death “were the action of rogue agents and not actually going to result in [the family's] detention”; (ii) in the light of his father's role in saving the lives of Hazara people his past would not place the Appellant at risk in Afghanistan; and (iii) internal relocation would be a viable option.

The 2008 Determination

In his Determination Immigration Judge Cameron accurately summarised in paragraphs 12–16 the reasons why the Respondent did not find the claim to be credible. For ease of reference I have numbered the seven reasons [1] – [7]:

“12. The respondent does not find the appellant's claim to...