Upper Tribunal (Immigration and asylum chamber), 2013-09-24, AA/06251/2008
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 September 2013 |
| Published date | 12 November 2013 |
| Status | Unreported |
| Appeal Number | AA/06251/2008 |
Appeal Number AA/06251/2008
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06251/2008
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Sent |
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On 16 July 2013 |
On 24 September 2013 |
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Before
THE PRESIDENT, THE HON MR JUSTICE BLAKE
UPPER TRIBUNAL JUDGE PITT
Between
AN
(Anonymity Order Made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mark Henderson, instructed by Lawrence Lupin Solicitors
For the Respondent: Peter Deller, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
Introduction
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The appellant is an Afghan citizen. He was born on 1 January 1962.
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The appellant brings this appeal as he maintains that he will face a real risk of serious mistreatment if returned to Afghanistan because of his history as a commander in Hisbi-i-Islami.
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This appeal comes before us as a remittal from the Court of Appeal. The terms of the remittal are set out in a Statement of Reasons attached to a Consent Order dated 28 March 2012. The Statement of Reasons is comprehensive regarding the appellant’s background and the history of the appeal and it is expedient to set it out here in full:
“1. The Appellant, a citizen of Afghanistan, was born on 1 January 1962 and clandestinely entered the UK on 1 December 2006 and claimed asylum on the same day.
2. The Appellant claimed, inter alia, that he joined Hizb-i-Islam at sometime around 1982 and was selected as a leader. He was in charge of up to 500 people until around 1996 when the Taliban came into power. The Appellant claimed that between 1992 and 1996 he was responsible for security in the district of Z, as well as in Cherasiab, however that he spent most of his time in Z. He stated that on one occasion he was sent to defend the area know as Arzam Qemat.
3. The Appellant claimed to have been detained by the Taliban in 1997, interrogated and tortured for information about Hizb-I-Islam and kept in prison for six months. Between 1997 and 2006 the Appellant was a Malak of his village and used bodyguards. In October 2006 he received information that Jamiat I Islami were going to kill him. He fled from his home and later from Afghanistan. His house was repeatedly attacked. He fled to the UK via Pakistan.
4. The Respondent refused the Appellant’s asylum claim in (sic) 24 July 2008 and on 28 July 2008 made a decision to remove the appellant from the UK. In particular, given his senior role in Hizb-I-Islam and that he admitted giving his men rocket launchers and having a personal involvement in the bombardment of Kabul, it was considered that he was both directly and indirectly complicit in war crimes. For this reason he was refused protection under the 1951 United Nations Convention relating to the Status of Refugees (“the Refugee Convention”) by operation of Article 1F(a). Article 1F(a) states that the Convention shall not apply to any person to (sic) whom there are serious reasons for considering has “committed a crime against peace, a war crime, or a crime against humanity as defined in the international instruments drawn up to make provision in respect of such crimes”.
5. The Secretary of State further considered whether the Appellant’s return to Afghanistan would breach Articles 2 and/or 3 ECHR. Consideration was given to the country guidance case of PM and Others (Kabul – Hizb-I-Islam) Afghanistan CG [2007] UKAIT 00089, on the basis of which it was considered that the Appellant’s past association with Hizb-I-Islam would not result in him experiencing treatment amounting to persecution if he was returned to Kabul.
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It was not disputed that the Appellant had been targeted in his home area, but it was considered that it was open to him to relocate to Kabul, whether (sic) it was considered that there was not a reasonable likelihood of being considered an opposition member by the authorities there (on the basis of PM and Others).
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The Secretary of State further considered and dismissed the Appellant’s claim that his removal from the UK would breach Article 8 ECHR as he had a brother in the UK.
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The Appellant appealed to the (then) AIT and, in a Determination promulgated on 22 October 2008, Immigration Judge Aziz allowed the Appellant’s appeal under Article 3 ECHR, but upheld the Secretary of State’s decision that he was excluded from the protection of the Refugee Convention by operation of Article 1(F)(a).
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The Secretary of State applied for reconsideration of the decision to allow the appeal under Article 3 and on 11 November 2008, Senior Immigration Judge Nichols ordered reconsideration. He found it arguable that Immigration Judge Aziz had failed adequately to reason his conclusion that the Appellant had been targeted and found further that the Immigration Judge had not dealt with the Secretary of State’s position in relation to this evidence. Senior Immigration Judge Nichols additionally found it arguable that the Immigration Judge had failed to have regard to the current country guidance case of PM and Others.
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The Appellant lodged a reply on 15 December 2008 contending that Immigration Judge Aziz’s decision was sound and adding a new issue, namely that the Immigration Judge had been wrong to find that the Appellant was excluded from the Refugee Convention.
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Before Designated Immigration Judge Wilson in the AIT on 9 February 2010, the issue of Article 1F exclusion was adjourned until the outcome of the case of JS (Sri Lanka) [2010] UKSC 15. In relation to the Secretary of State’s grounds for appeal against Immigration Judge Aziz’s decision to allow the Appellant’s appeal under Article 3 ECHR, Designated Immigration Judge Wilson found material errors of law in the Immigration Judge’s determination of those issues.
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Subsequently, following the decision of the Supreme Court in JS (Sri Lanka), Designated Immigration Judge Barton heard the adjourned hearing in the Upper Tribunal on 30 July 2010 and found there had been no error of law in the reasoning and findings of Immigration Judge Aziz in regard to exclusion of the Appellant from the protection of the Refugee Convention by operation of Article 1F.
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The hearing therefore proceeded exclusively in regard to Article 3 ECHR and was heard by Designated Immigration Judge Barton in the Upper Tribunal on 8 December 2010. In his Determination promulgated on 9 February 2011, Designated Immigration Judge Barton held that the Appellant “fits within the same category of returnees as those appellants whom the Tribunal considered in PM and who were found to be able to re-settle in Kabul” and so dismissed the Appellant’s appeal on the Article 3 ground.
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The Upper Tribunal subsequently refused the Appellant’s application for permission to appeal to the Court of Appeal (Senior Immigration Judge Spencer, dated 16 March 2011). The grounds of appeal were:
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That there was an error of approach with respect to Designated Immigration Judge Barton’s reliance on the apparent failure of Immigration Judge Aziz’s (sic) to consider PM and Others
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That there was an error of approach with respect to Designated Immigration Judge Barton (sic) finding that the only risk to the Appellant was from those who took his property. Under this ground the Appellant also challenged the Designated Immigration Judge’s finding that he was only a middle ranking officer in Hizb-I-Islam and so would not fit the profile of a suspect; and
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That there was an error of approach with respect to Article 1F.
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The Appellant then made an application for permission to appeal to the Court of Appeal on 4 April 2011 on essentially the same grounds. These grounds were subsequently amended on 3 June 2011 and, following refusal of permission to appeal by Sedley LJ on 11 July 2011 in a further skeleton argument prepared for the hearing of the Appellant’s renewed application for permission to appeal on 25 October 2011. In an order dated 31 October 2011, Lady Justice Arden granted permission on the grounds 1 and 2 which were as follows:
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The Upper Tribunal erred in law in its consideration(§§35-36) of the Appellant’s case that there are substantial grounds for considering that he faces a real risk of serious ill-treatment and/or torture if removed to Afghanistan in failing properly to consider A’s case and, in particular:
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failing to have any regard to the finding of IJ Aziz that Jamiat-e-Islami had attacked A’s home twice in 2006 intending to kill him because of his position as the commander of forces of Hizb-i-Islami ‘Hizb’) before 1996;
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failing to consider whether the...
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