Court of Appeal says no conflict between old Afghan country guidance and Strasbourg case law

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In ST (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 2382, the Court of Appeal has ruled that the First-tier Tribunal correctly applied both domestic and Strasbourg case law on international relocation to Kabul. The arguments in this appeal were about an tribunal determination made on 11 May 2015, but since then all the relevant country guidance cases have been considered and re-affirmed by the Upper Tribunal in AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC). The ruling in this case would apply to the findings in AS to the extent they replicate earlier country guidance cases.

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ST is an asylum seeker from Afghanistan who arrived in the UK as a minor. His asylum claim was initially refused, but he was granted discretionary leave to remain because of his age. When this expired he applied for further leave to remain, arguing that removal would breach Article 3 because of the risks he would face in Afghanistan. The Home Office refused this application and ST appealed.

The tribunal found that ST had been the subject of an attempted kidnapping by the Taliban as a child due to his father’s work for a pro-government warlord called Haji Zaman. But ST himself had no political profile and a significant period of time had elapsed since the attempted kidnapping, so the tribunal found he would not be a high-profile target for the Taliban.

Unusually, both parties and the court agreed that the Upper Tribunal decision in this case was of no assistance and therefore the Court of Appeal considered the First-tier Tribunal decision directly.

ST argued that the tribunal was wrong to consider the European Court of Human Rights decision in H and B v United Kingdom (application nos. 70073/10 and 44539/11) rather than relevant Upper Tribunal country guidance decisions. Lord Justice Simon dismissed that argument, noting that there was no conflict between the Strasbourg decision and domestic law:

The FtT in the present case was plainly entitled to regard the decision in H & B v. United Kingdom, based as it was on UT County Guidance cases, as support for its observations in [21] of its decision. There was no inconsistency between H & B v. United Kingdom and AA (unattended children) which required to be resolved.

The Court of Appeal went on to consider the tribunal’s approach to the evidence. It found that the tribunal judge had not erred by disagreeing with a report by one Dr Giustozzi, because the report did not engage with evidence, presented by the same expert in publicly available reports, that only high profile targets would be at risk in Kabul.

The outcome in this case is a reminder that expert reports must defend their conclusions with reasons and evidence. An unexplained assertion by an expert that ST would be at risk in Kabul was not enough to win his appeal, but a fully referenced explanation might have succeeded.