R Jansil Jabarkhail v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] EWHC 1798 (Admin) |
| Docket Number | Case No: CO/12305/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 June 2013 |
[2013] EWHC 1798 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewis
Case No: CO/12305/2012
Sonali Naik and Jo Wilding (instructed by Duncan Lewis) for the Claimant
Thomas Roe (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 20th June 2013
Approved Judgment
INTRODUCTION
This is a claim by a national of Afghanistan challenging a decision of the Secretary of State of 2 nd November 2012 to issue directions that he be removed to Afghanistan. The Claimant is now 19 years old. He came to the United Kingdom at the age of 15 in 2009. He applied for leave to remain in 2009 and again in 2012 contending that he would be at risk of persecution in Afghanistan. The applications were rejected by the Secretary of State in 2009 and in March 2012 respectively. An appeal against the second decision was dismissed by the First-tier Tribunal in a determination promulgated on 17 May 2012 which found that the Claimant was not at risk of persecution if he were returned to Afghanistan and that removal would not involve a breach of his rights under the European Convention on Human Rights. There has been no appeal or challenge to those conclusions.
The Claimant, however, contends that, when he first came to the UK as an unaccompanied minor at the age of 15, the Secretary of State failed to comply with her duty under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 ("the Regulations") to endeavour to trace his family. He contends that, by reason of that breach of duty, he has suffered prejudice or disadvantage and it would now be so unfair to remove him from the United Kingdom that no Secretary of State, acting reasonably, would do so.
The Facts
The Claimant was born on 1 January 1994 in Ragnia village in the province of Jalalabad. He lived there with his mother and two brothers. A sister, sadly, died. The Claimant's mother also died when he was aged 14. He continued to live in the family home and a neighbour looked after him and his siblings. In the six years before the Claimant left Afghanistan, his father only came to the family home about once a year.
When the Claimant was 14, the government came to his home and detained his father. The Claimant was not at home at the time but when he did return home he was told what had happened. He says that he was told that his father had been involved with Hezb-e-Islami, that he had been a commander with that group and that he had been detained by the Afghan government. The Claimant was told that he, too, would be in danger because of his association with his father. He left his village and travelled by foot to the home of his aunt (his mother's sister) and uncle. In his asylum interview, he says that he spent about 1 month at his uncle's home. His uncle paid an agent to arrange for the Claimant to leave Afghanistan. He arrived in the United Kingdom on 17 March 2009 when he was 15 years old.
The Claimant applied for asylum on his arrival on 17 March 2009 and asked to be recognised as a refugee under the 1951 Geneva Convention relating to the Status of Refugees on the basis that he had a well-founded fear of persecution in Afghanistan because his father had been a commander in Hezb-e-Islami and had been detained by the government. He said that his father's political views would be imputed to him and he, too, would be at risk of persecution. The Secretary of State considered but rejected the claim for asylum and for humanitarian protection under the Immigration Rules for the reasons given in a letter dated 16 September 2009. The Secretary of State did, however, grant the Claimant discretionary leave to remain until he was 17 1/2 years old or until adequate reception arrangements could be made for him in Afghanistan in accordance with her policy on unaccompanied child for whom adequate reception arrangements could not be made. The Claimant did not appeal the decision rejecting his claim for asylum. The Secretary of State made no attempt to trace the Claimant's family in Afghanistan either then or at any time when he was a minor.
On 30 June 2011, the Claimant applied to vary his leave to remain again on the basis that he would face persecution or breach of his human rights on return to Afghanistan, again because his father was a commander in Hezb-e-Islami and had been detained for his political views and his father's views would be imputed to him and he, too, would face a risk of persecution in Afghanistan. That application was rejected by a letter dated 15 March 2012. The Secretary of State considered that the Claimant had not established that he faced a real risk of persecution for the reasons given in the letter. The Secretary of State also considered that, having reached the age of 18, it would no longer be unduly harsh for the Claimant to return to his home village in Jalalabad or to relocate to another area such as Kabul.
The Claimant appealed against the decision to the First-tier Tribunal (Immigration and Asylum Chamber). As part of his evidence prepared for the tribunal hearing, the Claimant made a witness statement in which he said that he had not had contact with his aunt or uncle since arriving in the UK. He said that he had tried calling his uncle on his uncle's mobile phone but the number was disconnected and the Claimant had now forgotten the number and was not able to call him. The Claimant said that he had made contact with a friend and other people from the neighbourhood of his village and asked them to assist him in providing evidence to show that his life was at risk if he returned to Afghanistan.
The First-tier Tribunal found that the Claimant was a credible witness and said:
"I accept that the Appellant is an Afghan national whose mother has died. I accept that he saw his father about once a year for the 6 years prior to leaving Afghanistan. I accept that he has been told by others that his father was involved with Hezb-e-Islami, held a commander's role and was detained. I find no reason to doubt that the Appellant was told that he was in danger."
Despite the fact that the Claimant had been told and believed that he was in danger, the First-tier Tribunal found on the facts that he did not have a well founded fear of persecution. The First-tier Tribunal said:
"22. However I do not accept that the facts as put forward by the Appellant are such as to give him a real and well founded fear of persecution. The Appellant's father was detained in 2008 when the Appellant was around 14 years old. The Appellant was never involved in his father's activities and indeed knew nothing about them. The Appellant lived either at home or with neighbours until his father's detention and does not suggest that he was ever troubled by the authorities. If there was any belief that he had any involvement in his father's activities there can be no reason why he would not have been challenged about this whilst he was living at home, the authorities would not need to wait until they had detained his father. The Appellant was never approached. There is no suggestion that the authorities had a persecutory interest in the Appellant, his mother or indeed anyone other than his father. There is no suggestion that the authorities believed that the Appellant or his mother held any information about Hezb-e-Islami. The Appellant says that his neighbour told him that the authorities wanted to see him after the detention of his father. They may well have but there can be no reason at all why these authorities never having troubled the Appellant before would then think that this 14 year old child was involved in any way.
23. The Appellant's suggestion that the authorities may wish to detain, mistreat or even kill him is wholly speculative and without any logical basis. There is no motivation for the authorities to persecute the Appellant; he was a teenager living at home who had no information to give and on his account there is no reason at all why the authorities would believe that he has any information to give. Whereas I accept the facts of the Appellant's account I do not accept the credibility of his fear. In my finding the Appellant did not leave Afghanistan with a real and well founded fear of persecution rather he left at the behest of his uncle.
24. There is no reason to believe that the Appellant will face a persecutory interest on return because I do not accept that he was facing any persecutory interest before he left. I do not accept that having been outside Afghanistan for the last 4 years will cause the Appellant to be of adverse interest and I do not accept that there is any reason for the authorities to consider that the Appellant, a person with no personal involvement with Hezb-e-Islami will have nevertheless been involved or will decide to be involved in the future simply because his father was with Hezb-e-Islami some years ago. There is no objective evidence that would suggest otherwise.
25. Even if the Appellant faced adverse interest in his home area, and I do accept that he does, there is no reason why he would face such adverse interest in Kabul. The appellant is now 18 years old and he was last in Afghanistan at the age of 14. He has never previously been to Kabul. It is facile to suggest that in a city of such size he may be recognised because of his family resemblance to his father either by the authorities or by Hezb-e-Islami. There is no basis for...
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