AS (Afghanistan) v Secretary of State for the Home Department, 2019
| Country of Domestic Proceedings: | United Kingdom |
| Country of applicant: | Afghanistan |
| Court name: | Court of Appeal (Civil Decision) |
| Date of decision: | 24-05-2019 |
| Citation: | AS (Afghanistan) v SSHD [2019] EWCA Civ 873 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Armed conflict
Description
A dispute involving the use of armed force between two or more parties. International Humanitarian law distinguishes between international and non-international armed conflicts.“An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state”. |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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Subsidiary Protection
Description
The protection given to 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, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
Headnote:
The Court of Appeal set aside the Upper Tribunal’s Country Guidance on internal relocation to Kabul, on the basis that it had made a factual error, wrongly stating that civilian causalities amounted to less than 0.001 per cent, rather than less than 0.1 per cent, of the population of Kabul. However, it did dismiss AS’s ground of appeal, which concerned whether internal relocation would be unreasonable.
Facts:
Decision & reasoning:
Subsequent proceedings:
Case remitted on limited basis
Observations/comments:
It would be unreasonable to expect a person to relocate to face economic destitution or existence below at least an adequate level of subsistence. However, it is important to point out that a simple lowering of livings standards or worsening of economic status would not be unreasonable.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| The Refugee or Person in Need of International Protection (Qualification) Regulations 2006 |
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 3 January 2002, Svazas v Secretary of State for the Home Department [2002] EWCA Civ 74 |
| UK - House of Lords, 15 February 2006, Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5 |
| UK - AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 4 All ER 190, [2008] 1 AC 678, [2007] 3 WLR 832 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
Other sources:
E v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004] QB 531
EB (Lone Women - PSG - internal relocation – AA (Uganda) considered) Sierra Leone [2008] UKAIT 00090
AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC)
Thirunavukkarasu v Canada (Minister of Employment and Immigration) (1993) 109 DLR (4th) 682
Ranganathan v Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164
UNHCR Guidelines on International Protection 2003, Storey [The Internal Flight Alternative Test: The Jurisprudence Re-examined (1998) 10 International Journal of Refugee Law, 499]