The Queen (on the application of Zolfau Gafaro) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMs D Gill
Judgment Date06 November 2013
Neutral Citation[2013] EWHC 3365 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date06 November 2013
Docket NumberCase No: CO/3982/2012

[2013] EWHC 3365 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Ms D Gill (Sitting as a deputy judge of the High Court)

Case No: CO/3982/2012

CO/9801/2012

Between:
The Queen (on the application of Zolfau Gafaro)
Claimant
and
The Secretary of State for the Home Department
Defendant

Ms. S. Naik (instructed by Duncan Lewis) for the Claimant

Mr. N. Chapman (instructed by The Treasury Solicitor) for the Defendant

Hearing date: 22 October 2013

Ms D Gill

Introduction and the issues

1

The claimant challenges the lawfulness of directions issued for his removal to Afghanistan on 5 April 2012 (CO/3962/2012, lodged on 16 April 2012, the "first claim") and on 14 September 2012 (CO/9801/2012, lodged on 14 September 2012, the "second claim"). The basis of the challenge to each is summarised at paras 4 and 5 below.

2

In addition, I consider a challenge to the lawfulness of a decision by the defendant of 3 January 2007 (the first refusal) to refuse the claimant's asylum application of 3 November 2006 (the first asylum application) which was made shortly after his arrival (on 31 October 2006) as an unaccompanied 16-year old. This challenge is said to be part of the second claim, lodged more than five years after the decision in question was made. It is contended on the claimant's behalf that His Honour Judge Bidder QC, in granting permission to challenge the lawfulness of the two sets of directions for his removal, granted an extension of time. I comment on this at para 6 below.

3

The first refusal did not attract a right of appeal because the defendant granted the claimant discretionary leave to remain (DLR) until 31 December 2007. His second claim for asylum, made on 18 February 2008 (i.e. out of time) (the second asylum application), was refused on 6 April 2010 (the second refusal), the appeal against which was dismissed on 13 July 2010 by Immigration Judge Dawson. That determination was not challenged until an application was made out of time, on 11 September 2012, in response to comments made by Nicol J in refusing an application for a stay on 10 September 2012. The renewed application for an extension of time and for permission to appeal against the determination of Judge Dawson was refused by the Upper Tribunal on 11 October 2012.

4

The claimant contends that, when he made his first asylum application, the defendant failed to discharge her duty to endeavour to trace his family in Afghanistan. This duty is imposed on the defendant under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. The claimant contends that the breach of this duty materially disadvantaged him in the making of the first refusal, the second refusal and the determination by Judge Dawson of his appeal against the second refusal, such that the defendant may not now lawfully remove him. The claimant therefore relies upon what has been described as the " corrective principle", the basis for which is explained in Rashid v. SSHD [2005] EWCA Civ 744. Rashid has been considered in several cases, including, in the context of the duty under regulation 6, KA (Afghanistan) & others v. SSHD [2012] EWCA Civ 1014, [2013] 1 WLR 615 (judgment delivered on 25 July 2012) and EU (Afghanistan) and others v. SSHD [2013] EWCA Civ 32, [2013] Imm AR 496 (judgment delivered on 31 January 2013).

5

That in a nutshell is the basis of the challenge to the removal directions. However, given that two separate claims have been lodged against two sets of directions, it is appropriate to set out how the challenge is brought in respect of each claim. This is as follows:

i. the directions issued on 5 April 2012 for the claimant's removal on 17 April 2012 (the first claim) are unlawful because they rely upon the second refusal and the determination of Judge Dawson;

ii. the directions issued on 14 September 2012 for his removal on 16 September 2012 (the second claim) are unlawful because they rely upon the first refusal.

6

I record here that Mr. Chapman asked me to proceed on the basis that the decision of Judge Bidder of 13 November 2012 granting permission on the first and second claims included an extension of time to permit the claimant to challenge the lawfulness of the first refusal itself, rather than adjourn for a transcript of the judgment. I also record that there was no application to amend the grounds before Judge Bidder nor (it seems) was there any argument before him as to the reasons why time should be extended to challenge a decision made more than five years earlier. Although the order granting permission in each claim did state that time was extended, it is clear that the first claim did not mention the first refusal. There was a suggestion by Ms. Naik herself that the reference to an extension of time in the orders granting permission may have been concerned with the late filing of the renewal grounds, although she did also press the argument that the claimant had been granted permission to challenge the lawfulness of the first refusal.

7

It was not suggested on the claimant's behalf that the breach of the defendant's duty to endeavour to trace disadvantaged him in the sense that he has been deprived of the opportunity of obtaining evidence to corroborate the factual basis of his asylum claim, that is, that his father was shot dead by the Taliban in a targeted killing as opposed to an indiscriminate attack. The disadvantage claimed is that he lost the opportunity to corroborate his claim that, if removed in 2007, he would have been returning as a lone child with no family in Afghanistan. The defendant's simple answer to this is that there was no disadvantage because the decision in the first refusal as to internal relocation to Kabul was made on the assumption that the claimant had no family in Afghanistan.

The facts

8

The basis of the first asylum application was that the claimant's father was shot dead by five or six men from the Taliban dressed in military uniform who came to the claimant's home in Ghazni in the eastern part of Afghanistan in August 2006. They then began to shoot at the claimant. He was knocked unconscious when struck on the head with a rifle. After some days in hospital and at home, his mother took him and his brother to Pakistan. He then travelled to Iran and from there to the United Kingdom by lorry. He had no family members in Afghanistan. He feared persecution from the Taliban because he is a Shi'a Muslim.

9

The background material concerning the situation in Afghanistan is quoted at paras 15 to 17 of the "Reasons for refusal" letter (the refusal letter) dated 3 January 2007. Paras 20 and 21 then state as follows:

"20. In view of the details given in paragraphs 15–17 above, it is accepted that your father may have been killed and you yourself injured and that the Taliban may have been responsible. However, again in view of the details given at paras 15–17 above, it is not accepted that this was a concerted attack on you or your family, but due to the indiscriminate attacks and violence that was occurring in the eastern parts of the country, which may not necessarily have been motivated by your religion. It is therefore concluded that you have not established a fear of return to Afghanistan because of your religion.

21. Consideration has therefore been given to your return to Afghanistan."

10

The defendant then considered background material in relation to Kabul at para 22 and other material at paras 23 and 24, before stating, at para 25:

"25. It is therefore concluded in view of the details given at paragraphs 22–24 that the situation in Kabul is stable and that this is supported by the New Assembly and the ISAF and that there are authorities that you could seek redress from if you felt that you were at risk in any respect and as such it is therefore concluded that you have not established a fear of return to Afghanistan."

11

As stated above, the decision of 3 January 2007 did not attract a right of appeal. On 18 February 2008, the claimant applied (out of time) for leave to remain on asylum and human rights grounds. On 6 April 2010, the second refusal decision was made. At the same time, the defendant issued a decision to remove the claimant as an overstayer.

12

As stated above, the claimant's appeal against the second refusal was dismissed by Judge Dawson. In his determination, Judge Dawson recorded that the basis of the claimant's asylum claim was that he feared he would be targeted by the Taliban who had killed his father in August 2006. He also said he feared he would be at risk as a Shi'a Muslim and in the light of his ethnic group as a Hazara as well as his father's membership of Hizb-e-Wahdat, explaining why he had not mentioned this previously.

13

As to the whereabouts of the claimant's family, Judge Dawson had the appellant's evidence that he had two siblings, a sister and a brother. His sister was in Quetta City in Pakistan with her husband, who was also an Afghan national. The claimant was in touch with them by telephone every two weeks or so. A friend of the claimant's, who was in Tehran and with whom the claimant had contact, had told him three months previously that his brother was still in prison in Iran. The claimant did not know why his brother was in prison.

14

Judge Dawson's findings are set out at paras 21, 22 and 24, which read:

"21. My conclusion from assessment of the Appellant's claim is that the difficulties he encountered and the death of his father arose out of general hostility by the Taliban. It would be too unsafe for the Appellant therefore to be...

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  • ZG (Afghanistan) v Secretary of State for the Home Department
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