SA (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Baker,Lord Justice Underhill |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWCA Civ 53 |
| Date | 05 February 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/1886 |
[2019] EWCA Civ 53
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
AA/04979/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Simon
and
Lord Justice Baker
Case No: C5/2016/1886
Ms Nathalie Lieven QC and Ms Tamara Jaber (instructed by Sutovic & Hartigan, solicitors) for the Appellant
Ms Julie Anderson (instructed by Government Legal Service) for the Respondent
Hearing date: 18 December 2018
Approved Judgment
Introduction
This is the appellant's appeal from the decision of First-tier Tribunal Judge Archer (‘the FtT’) promulgated on 24 August 2015, in which he dismissed the appellant's appeal against the decision of the respondent (‘the Secretary of State’) to refuse his claim under article 1A(2) of the 1951 Refugee Convention, a claim for humanitarian protection and claims under Articles 2, 3 and 8 of the European Convention on Human Rights (the ‘ECHR’).
That judgment was upheld by Deputy Upper Tribunal Judge MacDonald on 9 March 2016 and, after initial refusal by the Upper Tribunal and the Court of Appeal, permission to appeal was granted at an oral renewal on 11 July 2017. The delays in this process are more than regrettable.
The appellant is an Afghan national who arrived in this country as a child, aged 14, in August 2009 and has remained here since then.
The grounds of appeal
The grounds of appeal focussed on three aspects of the relevant statutory and regulatory framework for the decision; and it is convenient to set these out in the order in which they were advanced by Ms Lieven QC on the appellant's behalf, and to provide a short summary of the nature of the argument.
Section 117B of the Nationality, Immigration and Asylum Act 2002 (as amended)
Part 5A of the amended 2002 Act deals with the public interest considerations which may apply when considering claims under Article 8 of the ECHR.
Section 117A provides:
…
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B
…
(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).
Section 117B, which is entitled ‘article 8: public interest considerations applicable in all cases’, provides (among other things):
(1) The maintenance of effective immigration control is in the public interest.
…
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
The criticism is that FtT failed properly to consider the weight that was to be given to the appellant's private life, which developed while he was a child in this country, and that, in effect, no (or no sufficient) weight was given to that private life.
Paragraph 276ADE(vi) of the Immigration Rules
This provision of the Rules sets out the requirements to be met by an applicant relying on the development of a private life under Article 8:
276ADE(1) The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are at the date of application, the applicant:
…
(vi) subject to sub-paragraph (2), is under the age of 18 years or above, has lived continuously in the UK for less than 20 years … but there would be very significant obstacles to the applicant's integration into the country to which he would have to go if required to leave the UK.
The appellant's complaint is that the FtT failed to consider all the factors relevant to his integration in Afghanistan. These included the difficulty in sustaining a private and family life, in particular, in relation to his employment and educational prospects, as well as his physical and psychological integrity, against a background of growing up in this country since the age of 14.
Directive 2011/95/EU of the European Parliament and Council dated 13 December 2011 (‘The Qualification Directive’)
The Qualification Directive sets out standards for the qualification of third-country nationals eligible for subsidiary protection.
Article 2(f) defines ‘persons eligible for subsidiary protection’ as:
A third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin … would face a real risk of suffering serious harm as defined in Article 15 …
The definition of serious harm in Article 15, so far as material, includes:
…
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
The criticism is that the FtT failed to address the serious threat to the appellant's life from indiscriminate violence in the prevailing situation in Kabul as a result of internal armed conflict.
The findings of the FtT
Before considering the appellant's developed arguments and those of Ms Anderson on behalf of the Secretary of State, it is necessary to summarise the findings of the FtT.
First, the appellant had given an untruthful account of the circumstances in which he had left Afghanistan. He continued to be ‘a wholly unreliable witness because of his continued reliance on a fabricated account’ (§30). Materially, he was not at risk of violence from those whom he had identified nor from the Afghan government (§32).
Second, during his time in the United Kingdom he had settled well into the community and had developed close relationships with a reliable group of friends from varying backgrounds with whom he socialises from time to time (§33). He remained involved with social services, requesting assistance when he needed it (§34).
Third, the appellant was aged 20 and was not obviously vulnerable. ‘He appears to be a physically robust and healthy adult male’. He was ‘confident and personable’ with ‘good social skills’ (§36).
Fourth, the failure to trace family members had greatly contributed to his sense of isolation, and he feared being sent back to Afghanistan (§33). It was ‘reasonably likely’ that the appellant would return to Afghanistan as a young adult with no adult support (§31). He would face harsher conditions there. However, he had the ‘personality, capacity and intelligence’ to manage independently in Afghanistan (§37).
Fifth, the FtT rejected the submission that accelerating violence in Afghanistan and the appellant's personal circumstances meant that he could qualify for international protection under Article 15(c) of the Qualification Directive. He was from Kabul province and could live independently in Kabul (§37).
Sixth, although he could not succeed under the relevant Immigration Rules (paragraph 276ADE or Appendix FM), the FtT had to consider whether there were circumstances outside the Rules which entitled the appellant to succeed in a claim under article 8 of the ECHR. Judge Archer identified the necessary questions that arose: whether the appellant's removal involved an interference with his private life, whether it was sufficiently serious to engage article 8(1), whether it was in accordance with the law and pursuant to legitimate aims, and whether the interference with private life was proportionate (§38).
Seventh, by reference to the findings set out in §§33 and 34, the FtT found that there was evidence of a private life in the United Kingdom in terms of friendship and engagement with the community; but that there was ‘no great depth or breadth to the appellant's life’ in the United Kingdom (§39). Having considered article 8, the FtT found that ‘the appellant had developed a limited degree of private life in the UK’ and that his removal would interfere with that private life; but that it would be in accordance with the law, because the appellant no longer had a right to remain in the country (§40).
Eighth, the FtT then considered s.117B of the Nationality, Immigration and Asylum Act 2002, and said this (§42):
To his credit, the appellant has developed good English language skills. However, all other relevant factors count against him. He has developed private life in the UK whilst his immigration status has been precarious, and he is not financially independent …
Ninth, having considered the question of delay, the FtT concluded (at §43):
The appellant is capable of living independently within his own culture and society. Removal is not disproportionate.
The argument
Section 117B of the 2002 Act
Ms Lieven submitted that the appellant's private life had developed as a child in this country. Such private life had a special and compelling character, which qualitatively distinguished it from private life developed by an adult. It was irrelevant therefore that the appellant was now an adult. The Secretary of State's approach would disadvantage looked after young people who had long residence in this country. It was wrong and unlawful to ‘blame’ a child for the development of a private life in circumstances where that child would have no awareness of the precariousness of his or her immigration status. The appellant had developed a private life which was of particular importance since he had no family in this country nor, so far as this could be ascertained, in Afghanistan.
The starting point for considering the application of s.117B of the 2002 Act is now the decision of the Supreme Court in Rhuppiah v. Secretary of State for the Home Department [2018] UKSC 58, [2018] 1 WLR 5536; and...
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