SO and SO (KhaD – members and family)
| Jurisdiction | England & Wales |
| Judge | DR H H STOREY,SENIOR IMMIGRATION JUDGE |
| Judgment Date | 12 October 2005 |
| Neutral Citation | [2006] UKAIT 3 |
| Court | Asylum and Immigration Tribunal |
| Date | 12 October 2005 |
[2006] UKAIT 3
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Dr H H Storey (Senior Immigration Judge)
Mr I F Macdonald (Immigration Judge)
For the appellants: Ms S Khan of Counsel, instructed by Barry Clarke Solicitors
For the respondent: Mrs R Aslam, Home Office Presenting Officer
SO and SO (KhaD — members and family) Afghanistan CG
Given recent evidence, which includes evidence about significant numbers of former KhaD officers working in the present Afghanistan Intelligence Service, it cannot be said that past service in KhaD suffices to establish a risk on return. Cases have to be considered by weighing up a number of factors, including some personal to the appellant. In this regard it is important to bear in mind that past or present personal conflicts are more important than political conflicts. In assessing whether family members of a PDPA and/or KhaD member would be at risk, it must be borne in mind that there may be factors reducing or removing risk such as the death of the PDPA/KhaD member, and the amount of time that has elapsed since his death.
The appellants are brothers. Both are nationals of Afghanistan. Both were the subject of decisions refusing to grant them asylum and to remove them as illegal entrants, made on 22 January 2004 and 14 December 2004 respectively. The appeal of the first appellant, who is the older brother, was heard before an Adjudicator, Mr J.H. Bryan, on 24 November 2004 and was dismissed by him on 17 December 2004. The appeal of the second appellant was heard on 15 March 2005 before an Adjudicator, Miss L. Thornton. In a determination notified on 7 April 2005 she dismissed his appeal.
The basis of the brothers' claim was as follows. Their father had been a prominent member of the Communist People's Democratic Party of Afghanistan (PDPA) who had acted as an Adviser to President Najibullah. He was also a senior officer for KhaD, the secret service wing of the communist regime (Khadimat-e-Atalat-e Dawlati). He worked for the Soviet police in Riagor 5 branch. The first appellant believed that his father had recruited many young men into the army. His father was known as a PDPA commander both in Kuhdaman (where fighting had taken place between the PDPA and the Mujahadeen) and in Kabul city. Their father's brother had also been a PDPA commander. Following the fall of the communists, whilst the Mujahadeen were in power, their father ran a business in Kabul. When the Taliban came to power in 1996 they almost immediately detained him and the first appellant. Both were tortured. The first appellant was forced to give the names and addresses of Mujahadeen. Their father was beaten to death in custody. Some months later the first appellant's release was secured by paying a bribe, although it took place without the knowledge of a certain Soofi Naeem, one of the Taliban commanders, whose men had first pursued the family in Kabul. He came looking for the first appellant. In 1997 the family fled to Mazar-i-Sharif. They managed to live in hiding there from 1996/7 until the Taliban captured the city in 2001. Fearing the Taliban would track them down, the two brothers fled Afghanistan in 2001.
Following a grant of permission to appeal, the appeal of the first appellant came before a panel constituted under the Asylum and Immigration Tribunal as a reconsideration hearing on 25 May 2005. This was chaired by Mr P. King, Senior Immigration Judge. This panel found that there was a material error of law which was stated as follows.
‘No proper findings or consideration as (sic) issue of father's membership of KhaD. Such was material issue as to return [CIPU 6.280, 6.283. Expert evidence Marsden p.27 of bundle and Dr Giustozzi page 169–173 of bundle].’
Mr King directed:
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‘1. Oral evidence of the appellant limited to issues of (i) whether father in Khad, (ii) if so what risk does that present for the appellant upon return.
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2. Afghan-Dari interpreter.
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3. Expert evidence to be served no later than fourteen days before hearing (if not agreed — oral evidence only to be given).
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4. Any further applications to be made no later than fourteen days from today.’
At the time the second appellant applied for review of the determination of Miss Thornton, it was already known that his brother had been granted permission to appeal. Mindful of this fact Mr J. Freeman, Senior Immigration Judge, in a decision of 26 April 2004 ordered reconsideration in the following terms:
‘If the grounds of appeal filed for the claimant's brother SZ (case HX.10838/2004, to be reconsidered by the Tribunal on 25 May) were to succeed, then it might be arguable that two inconsistent decisions in what is suggested are identical cases could not be allowed to stand (for similar reasons to those identified by the Court of Appeal in Shirazi [2003] EWCA Civ 1562). On that basis only, reconsideration is directed in this case also to be carried out together with reconsideration of Shahzad's; but, whether they represented Shahzad before the Adjudicator or not, the solicitors will have a good deal of explaining to do as to why they did not take steps to get the cases linked at first instance. They have laid themselves open to the charge that they were trying to secure a favourable result in one case to exert leverage on the other, and there may be costs or disciplinary implications, so they had better instruct counsel on their own behalf, as well as the appellant's.’
Thus we have before us two cases which have been joined, one presenting as a second-stage reconsideration, the other as a first-stage reconsideration.
We should say at the outset that having looked more closely into the history of the proceedings in both cases, we did not consider that any blame for the failure to seek an early joindering can be laid at the door of the current solicitors.
We asked the parties to address us first on the appeal of the second appellant. Ms S. Khan asked us to find that the determination of Miss Thornton (dealing with the second appellant) was legally flawed because she had not engaged with the determination of Mr Bryan (dealing with the first appellant) or with his different assessment of the first appellant (who gave evidence before Mr Bryan as well as Miss Thornton). Mrs Aslam contended that the determination of Miss Thornton was legally sound as she had considered Mr Bryan's determination and properly stated that she would reach her decision independently. The Court of Appeal in Otshudi [2004] EWCA Civ 893 had made clear that discrepant outcomes of appeals by two brothers, founded on much the same evidence, did not import any legal error. She also submitted that neither the grounds of appeal nor Mr Freeman's order in fact identified an error of law.
Having considered the submissions we concluded that there was a material error of law, which we set out in the following terms:
‘The Immigration Judge (IJ), Miss Thornton, materially erred in law in failing to take into account as a relevant consideration the evaluation and assessment made by a previous Adjudicator (Mr Bryan) in respect of the appellant's brother. Whilst the evidence of the two brothers was not in identical terms, their position so far as the claim to risk on return was concerned was near identical and they were similarly situated. The IJ was perfectly correct in paragraph 47 to make clear that she would reach an independent decision. However, what she was not entitled to do was fail to engage with the findings made by Mr Bryan and the reasons he gave for those findings. This failure was all the more glaring in this case since she heard evidence from the brother which had been the subject of assessment by Mr Bryan (see paragraph 11). She was in no way bound by Mr Bryan's findings, but she was obliged to give reasons why she took a different view. She failed to do so.
Neither the case of Shirazi nor Otshudi address the specific issue arising in this case, namely the relevance of another Adjudicator's determination as a piece of evidence, to be weighed and evaluated along with other pieces.
Whilst we accept that the grounds forming the application for review did not in terms identify the legal error as we have above, their underlying concern regarding the two cases being decided differently on virtually identical factors was directed at Miss Thornton's determination and the evident fact that she had Mr Bryan's before her. In our view logically implicit in that concern was the way in which Miss Thornton had approached Mr Bryan's determination as a part of the overall evidence.’
Having decided there was no reason to adjourn the second-stage reconsideration of the second appellant's appeal, we thus proceeded with the two appeals, now both at the second-stage of reconsideration.
We informed the parties that before going ahead with the hearing in accordance with Mr King's Directions, we wished them to address us as to whether the appellants could succeed, even assuming the accounts they gave of their past experiences were accepted as fully credible. We explained that there would be no point in proceeding to examine the factual issue identified by Mr King — whether the father was in KhaD — if the appellants could not succeed even accepting that he was.
Miss Khan submitted that both appellants should be able to succeed on this basis. She identified a number of risk factors. Firstly, the appellants' father had been a high-ranking member of the PDPA, having been an Advisor to President Najibujllah, having visited Russia on government business and having appeared on TV at least twice. She relied on the April 2005 CIPU Report paragraphs 6.289 and 6.290 in particular:
‘ Former Members of the PDPA (People's Democratic Party of Afghanistan)
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