In March 2018, the Upper Tribunal promulgated the country guidance decision AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118. The tribunal dismissed AS’s appeal and provided guidance on the suitability of Kabul as a site for “internal relocation”. It broadly held that relocation to Kabul was generally safe and reasonable save for women, children and men who can demonstrate cumulative vulnerabilities.

On appeal — AS (Afghanistan) v SSHD [2019] EWCA Civ 873, decided last week — Lord Justice Underhill (with whom Singh LJ and King LJ agreed) held that the tribunal’s assessment of whether it is safe to relocate to Kabul was made in error.

The United Nations Assistance Mission in Afghanistan reported a statistic for death and injury resulting from armed conflict and security incidents in Kabul as 0.1% (representing 1 in 1,000 people). The tribunal erroneously expressed the risk of harm as being 0.01% (representing 1 in 10,000 people).

The court held that to be an error of law and directed the case be remitted for reconsideration on the basis of the correct figure — paragraphs [26-29]. This will not come as a huge surprise, as the error was declared in open court in March.

Guidance on approach to internal relocation

Against the background facts, the court provided guidance on the correct approach to whether it is reasonable for a person to internally relocate to a safe haven within their country of origin at [61(1)-(7)]. In summary, omitting references to the law:

• Internal relocation is not an alternative where there is a real risk that the applicant for asylum will suffer persecution or serious harm within the safe haven [61(1)].
• The ultimate question is whether, taking account of all relevant circumstances pertaining to the claimant and his country of origin, it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. When in doubt it is to that question tribunals should return [61(2)].
• The test is one of great generality. It only excludes a comparison of the conditions, including the degree of respect for human rights, between those obtaining in the safe haven and those in the country of refuge. It requires consideration of all matters relevant to the reasonableness of relocation, none having inherent priority over the others. The necessary assessment is “holistic” [61(3) and 68].
• One way of approaching that assessment is to ask whether in the safe haven the applicant can lead a relatively normal life without facing undue hardship in the context of the country concerned but that should not be treated as a substitute for the true test. Rather, it is “one touchstone” [61(4) & 65-67].
• The above point does not mean it will be reasonable for a person to relocate to a safe haven, however bad the conditions are. Conditions may be normal but nevertheless unduly harsh. An objective assessment must be made [61(5)-(6) & 62-63].
• The UNHCR Guidelines on International Protection of 23 July 2003 contain a full (and “valuable”) discussion of factors relevant to the reasonableness analysis. Although not everything said may be authoritative, decision-makers must consider those factors, so far as material, in each case [61(7)].

It also worth pointing out that the impact of a change from, say, a rural environment (e.g. Laghman) to an urban one (e.g. Kabul) is in principle a relevant consideration in assessing the reasonableness of relocation but requires particularised pleading based on evidence [78].

What now for the country guidance?

Although the Court of Appeal directed remittal on a limited basis [80], it noted that the fresh tribunal would not be privy to the evidence called on the previous occasion, or the submissions made. That would mean that the evidence as to security risk adduced at the previous hearing would have to be adduced again (unless agreed), together with any updating evidence that might now be available, and further submissions [81].

And as the court noted, after the country guidance was promulgated the UNHCR produced its Eligibility Guidelines for assessing the International Protection Needs of Asylum Seekers from Afghanistan in August 2018. Unlike its 2003 and 2016 versions, Kabul is not, in general, a safe or reasonable internal relocation option. For that reason, the court invited the tribunal to consider whether, upon remittal, its country guidance required revision [82]:

It will be for the Tribunal, no doubt after hearing submissions, to consider whether that assessment requires a reconsideration of its country guidance on a more extensive basis than is required by the remittal of this appeal. If it decides that it does, it is likely to make sense either for the scope of hearing to be increased or (which may be procedurally more correct) for the remittal in this case to be heard along with whatever appeal is the vehicle for that wider consideration.

It would be surprising if the tribunal did not take up the court’s invitation, given its duty to assess evidence on appeal at the date of the hearing, the considerable respect that UNHCR reports command in this field, and because the tribunal’s miscalculation is highly relevant to its assessment of whether relocation to Kabul is reasonable [80].

In the circumstances, the tribunal’s conclusion in AS that Kabul is, in general, a safe and reasonable internal relocation option can no longer be considered authoritative.