Court of Appeal remit Upper Tribunal Country Guideline case on Afghanistan and provide guidance on correct approach to internal relocation

Tuesday 28 May 2019

AS (Afghanistan) v SSHD [2019] EWCA Civ 873

Sonali Naik QCRonan Toal and Gemma Loughran of Garden Court were instructed by JD Spicer on behalf of the appellant. Ali Bandegani, also of Garden Court, was instructed by Baker McKenzie for the United Nations High Commissioner for Refugees.

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AS is an asylum seeker from Afghanistan whose appeal was dismissed by the Secretary of State and the First-tier Tribunal. On appeal, his case was designated by the Upper Tribunal (IAC) as a ‘Country Guideline case’ addressing the question whether those seeking international protection from Afghanistan were refugees, specifically whether they could avoid persecution by safely or reasonably relocating to Kabul. AS appealed to the court of appeal on essentially two grounds and the UNHCR was given permission to intervene. 

In a rare decision of its kind, the court agreed with the appellant on Ground 1 that the Upper Tribunal’s expert assessment was materially wrong in law. It had miscalculated the number of deaths and injuries from security incidents in Kabul (1 in 1,000 as opposed to 1 in 10,000), reaching a conclusion by reference to a statistic 10 per cent less the true figure. 

Dismissing Ground two but accepting UNHCR’s ‘core submission’, the court also 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 the SSHD’s invitation to subordinate the overall test to a relative approach focusing on whether a ‘significant minority’ of a country’s population live in similarly poor conditions to those in the proposed place of relocation, and accepted the appellant’s and UNHCR’s submission that there is ultimately a threshold below which such conditions would be unreasonable. 

The court remitted the appeal to the Upper Tribunal who were invited to take into account the UNHCR’s 2018 Eligibility Guidelines and to consider widening the scope of its enquiry.

Sonali Naik QC, Ronan Toal, Gemma Loughran and Ali Bandegani are members of the Garden Court Chambers Immigration team.

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