RS (Afghanistan) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Underhill,Lord Justice McCombe |
| Judgment Date | 24 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1179 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 November 2016 |
| Docket Number | Case No: C5/2011/1516 |
[2016] EWCA Civ 1179
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Asylum and Immigration Chamber)
Senior Immigration Judge Grubb
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Underhill
The Right Hon Sir Stanley Burnton
Case No: C5/2011/1516
Mr Raza Hussain QC and Mr Chris Buttler (instructed by Sutovic & Hartigan) for the Appellant
Mr Nicholas Chapman (instructed by the Government Legal Department) for the Respondent
Hearing date: 15 November 2016
Introduction
This is the appeal of RS, a young Afghan male born on 5 June 1992, from the determination of Senior Immigration Judge Grubb dated 14 October 2010 dismissing his appeal against the refusal of the Secretary of State to vary his leave to remain so as to enable him to remain in this country. At the conclusion of the submissions on behalf of the appellant, we dismissed his appeal and stated that our reasons would be given in writing subsequently. These are my reasons for dismissing the appeal.
The facts
The relevant facts may be stated quite shortly. The appellant arrived in the United Kingdom illegally on 12 July 2008. He was detained by the police and claimed asylum. On 14 January 2009, the Secretary of State refused his application for asylum but, as he was an unaccompanied child, he was granted discretionary leave to remain in the United Kingdom until 5 December 2009, when he would be 17 1/2 years old. On 2 December 2009, he made an application for an extension of that leave on the basis of his continued fear that he would suffer persecution or serious ill-treatment if returned to Afghanistan. On 14 January 2010 the Secretary of State refused to vary the appellant's leave to remain for reasons set out in the refusal letter of that date.
The appellant appealed. In a determination dated 10 March 2010 the First-tier Tribunal dismissed his appeal. He sought permission to appeal on the ground that the judge had erred in law in not granting an adjournment in order for the appellant, then a minor, to obtain legal representation, public funding having been agreed in principle. On 10 May 2010, Senior Immigration Judge Spencer granted permission on that ground. On 15 July 2010, SIJ Spencer decided, without a hearing, to set aside the decision of the First-tier Tribunal and directed that the Upper Tribunal should remake the decision. The appellant's appeal was heard by SIJ Grubb.
Since his arrival in 2008, the appellant has lived in Gloucester, in the care of Gloucestershire social services. He attended school in Gloucester, and was regarded as a hard-working student. He formed a very close relationship with his English teacher, Mrs Lange, and her children. She had wished to adopt him, but did not do so because of his age: by the time an adoption could be effected he would be over 18. The Senior Immigration Judge accepted that the appellant had a close relationship with Mrs Lange and with her family and that his private life in the UK was strong.
The Senior Immigration Judge decided that the appellant was not entitled to humanitarian protection in the United Kingdom and that his return to Afghanistan would not place the United Kingdom in breach of its obligations under the Refugee Convention or under Articles 2, 3 or 5 of the European Convention on Human Rights. If returned to Kabul, there would be no real risk of serious harm within the terms of article 15(c) of the Qualification Directive. It would not be unduly harsh or unreasonable for him to be returned to live in Kabul instead of his home area of Kandahar. Although the appellant's rights under article 8 would be interfered with if he were returned to Afghanistan, the interference was lawful and proportionate in the exercise of immigration policy and therefore no breach of Article 8 had been established. Accordingly the interference did not justify the appellant being allowed to remain in this country.
The grounds of appeal
The first and principal ground of appeal is that the Upper Tribunal erred in treating the Appellant's adulthood as a "bright line" in the assessment of risk.
The second ground of appeal is that the Upper Tribunal failed to address the unfairness suffered by the appellant through (1) the failure of the Secretary of State to comply with her duty under Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 to endeavour to trace his family; and (2) resulting from the loss...
To continue reading
Request your trial
-
Hysaj (Deprivation of Citizenship: Delay)
...and Others [2019] EWCA Civ 615; [2019] 1 WLR 5687; [2019] 4 All ER 787 RS (Afghanistan) v Secretary of State for the Home Department [2016] EWCA Civ 1179 Secretary of State for the Home Department v R (on the application of Rashid) [2005] EWCA Civ 744; [2005] Imm AR 608; [2005] INLR 550 TN ......
-
Upper Tribunal (Immigration and asylum chamber), 2020-03-19, [2020] UKUT 128 (IAC) (Hysaj (Deprivation of Citizenship:Delay))
...into one that establishes such grave injustice as to be illegal. In RS (Afghanistan) v. Secretary of State for the Home Department [2016] EWCA Civ 1179 Stanley Burnton LJ observed, at ‘... [T]he appellant seeks to elevate the significance of the error of the First-tier Tribunal by calling i......
-
Upper Tribunal (Immigration and asylum chamber), 2020-03-19, DC/00035/2018
...into one that establishes such grave injustice as to be illegal. In RS (Afghanistan) v. Secretary of State for the Home Department [2016] EWCA Civ 1179 Stanley Burnton LJ observed, at ‘... [T]he appellant seeks to elevate the significance of the error of the First-tier Tribunal by calling i......
-
Upper Tribunal (Immigration and asylum chamber), 2016-12-07, AA/06825/2014
...& Ors v SSHD [2013] EWCA Civ 32, TN, MA and AA (Afghanistan) v SSHD [2015] UKSC 40 and even more recent RS (Afghanistan) v SSHD [2016] EWCA Civ 1179. In light of those authorities, the appellant cannot expect a positive In applying the case law, it must be recalled that Judge Broe was the s......