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Some thoughts on the New Country Guidance case on Afghanistan.

The much-delayed Upper Tribunal Country Guidance case, AS (Safety of Kabul) Afghanistan CG [2020] UKIAT 00130 (IAC) has just been promulgated. It might be recalled that following AS (Afghanistan) v SSHD [2019] EWCA Civ 873 a statistical error was found in the original hearing (AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC)) so the case had to be reheard in part. Sensibly the Upper Tribunal took account of fresh developments in Afghanistan in relation to Kabul Province (not just Kabul) to deal with the risk of serious harm in Kabul (and so any Article 15 (c) of the Qualification Directive point) and the reasonableness of internal relocation to Kabul.

Now in outline the position the Tribunal adopted was to endorse the previous Country Guidance case AK (Article 15 (c) Afghanistan CG [2012] UKUT 00163 (IAC) [in which I and fellow Chambers member Emma Rutherford appeared for the Appellant], which as a result still remains Country Guidance. However, in my view the position is slightly more sympathetic in relation to relocation. Previously the Guidance had held that being an Internally Displaced Person in Kabul was in general neither unsafe nor unreasonable (save for alone women), although (see AK (supra) [243]) it would still be necessary to examine individual circumstances.

In the new Guidance, the head note (iii) in AS (supra) reads that in general it would not be unreasonable or unduly harsh for a single adult male in good health to relocate to Kabul even without specific connections or a support network, and even without a Tazkera. However and importantly, this is qualified by head note (iv) which states that a list of factors would need to considered as to whether a person fell into the general position as stated. The list is quite large, and includes age, support and connections with Kabul/Afghanistan, physical and mental health, language, education, and vocational skills.

Further points are then made in head note (v) as to matters to take into account, such as the familiarity with the social and cultural norms of the country, which may be affected by the age the person left the country, and the length of absence, and any support network/connection with Kabul.

Potentially then, given these factors to be taken into account, there is now a little more scope to argue against the reasonableness of internal relocation if a person can demonstrate a well-founded fear of persecution in his home area of the country.

Stephen Vokes, Head of the Immigration, Asylum and Human Rights team, No.8 Chambers.

What’s left now of Chikwamba v SSHD [2008] UKHL?

Sharp-eyed observers will have seen already the recent decision of the Upper Tribunal in Younas (section 117B (6) (b); Chikwamba; Zambrano) [2020] UKUT 129 (IAC) which in my view is legally problematic in several different ways. This short article merely concentrates on one aspect of the decision. In Chikwamba [44] Lord Brown stated “it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad”.

This view to no great surprise given the tendancy of the (now) Supreme Court not to depart from its own decisions was endorsed in R (Agyarko) v SSHD [2017] UKSC 11 [51] “If on the other hand an applicant—even if residing in the UK unlawfully-was certain to be granted leave to enter, at least if an application was made from outside the UK, then there might be no public interest in his or her removal. The point is illustrated by the decision in Chikwamba”.

Now the Upper Tribunal, and to a certain degree the Court of Appeal have never been that happy, that these statements are legal principles to be applied, without more (see SSHD v Hayet (Pakistan) [2012] EWCA Civ 1054, R (Kaur) v SSHD [2018] EWCA Civ 1423, both of which stated it would be fact specific as to whether an appellant could show entry clearance was certain, and appeared to consider the public interest as well. Although see TZ (Pakistan v SSHD [2018] EWCA Civ 1109 [28] (not cited by the Tribunal in the present case) for a different view). Indeed, the Tribunal insisted that a proportionality exercise under Article 8 ECHR based on evidence would need to show temporary removal being disproportionate—see R (Chen) v SSHD IJR [2015] UKUT 189 (IAC), and Lord Brown was not laying down a legal test. This appears to be drifting a long way from the comparative rare circumstances of refusal.

The importance of Younas is that the Tribunal now consider section 117B (1) of the 2002 Act, which states that the maintenance of immigration controls is in the public interest, and so they apply a public interest test (see [95], and state that the Appellant’s immigration history, as she was found to be an overstayer who had no intention of leaving the country after she arrived was such that the public interest is served in the maintenance of effective immigration controls [98]. It is pointed out that Chikwamba itself pre dates Part 5A of the 2002 Act [90]. So it appears where there is clear breach of immigration control the Tribunal will hold the public interest requires entry clearance even if the Rules are in fact met. There is, it appears only a narrow window to apply this leading decision of the House of Lords/Supreme Court presently.

Stephen Vokes, Head of the Immigration, Asylum, and Human Rights team, No.8 Chambers.

Zoom - Immigration Law Update Seminar - 7 May - Notes

This session will cover by video conference recent developments in asylum, human rights and Immigration Law.

It will also provide and update on changes in policy and precedure due to COVID-19 and will cover making applications to remove a no recourse to public funds condition. There will also be an update in the EU settlement scheme.

4 PM 7 May Immigration Law Update Seminar notes for download

Immigration Asylum and HR Update AP.

Covid 19 Policy Procedure ER.