AS (Afghanistan) v Secretary of State for the Home Department, 2019

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
Effective access to procedures
Armed conflict
Burden of proof
Country of origin information
Inhuman or degrading treatment or punishment
Internal protection
Relevant Facts
Subsidiary Protection
Internal armed conflict

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:

The appellant is an asylum seeker from Afghanistan in an appeal brought against the decision of the Upper Tribunal that it would not be unreasonable for a single healthy adult male to relocate to Kabul, even in the absence of specific connections or a support network there.
Two grounds of appeal were advanced. Firstly, that there was a serious error in the Tribunal’s finding as to the risk of injury to which residents of Kabul were exposed from ‘security incidents’, and secondly that the tribunal had misunderstood the case law principle that conditions facing a returned refugee in the place to which they are relocated should be considered in the context of the conditions prevailing generally in the country in question.
 

Decision & reasoning:

Firstly, the court starts off by examining the ground 1 issue. It was found that, when examining the percentage of causalities resulting from armed conflict, the Tribunal has made a mistake when referencing the percentage of the population affected by civilian activities. They had incorrectly stated that the percentage risk was 0.01% (1 in 10,000) as opposed to the correct 0.1% (1 in 1,000) from the UNAMA 2017 figures report. 
Secondly, when considering ground 2, the court took the opportunity to provide guidance to be applied by decision makers assessing whether a refugee may internally relocate to avoid persecution in their home country. The court declined AS’s second ground of appeal. The judge endorsed what the Upper Tribunal had said in AAH (Iraqi Kurds – internal relocation) Iraq CG [2018] regarding the test of reasonableness. It was erroneous to compare the condition of returnees to Kabul with ‘the poorest of the poor’. 
 
Decision-makers must ask themselves whether the returnee could lead ‘a relatively normal life without facing undue hardship in the context of the country concerned’ as per the UNHCR Guidelines and quoted by Lord Bingham with approval in Januzi. Relocation might not be unduly harsh and reasonable even if conditions in the place of relocation were very bad by the standards of the country of refuge. However, this does not mean that it will be reasonable for a person to internally relocate, despite the fact that the bad conditions they will face there are normal in their country of origin. Conditions may be normal but nevertheless unduly harsh.
 
Contrary to the appellant’s submission, the judge submitted that the Upper Tribunal did not fall into error of treating the significant minority test as determinative. The significant minority test is whether it is reasonable to expect a returnee to live in bad conditions, if it is established that a significant minority of people in the country in question live in such conditions of great hardship. 
 
The judge decided to remit the case to the Upper Tribunal on a limited basis for it to consider its decision on the reasonableness of Kabul as an internal relocation alternative on the basis of the correct figure as regards to the risk of death or injury. However, it was noted that the scope of the hearing might need to be widening in light of new UNHCR guidelines produced after the original decision of the Upper Tribunal. 
 

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]

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