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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> NM (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 214 (13 March 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/214.html Cite as: [2007] EWCA Civ 214

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2007

Lord Justice Latham:

1. The appellant, who was born on the 1^st January 1979, entered the United Kingdom illegally on the 2^nd May 2002 and claimed asylum on the same date. By a decision on the 20^th August 2004, the respondent refused his claim for asylum and gave directions for his removal from the United Kingdom. He appealed against that decision on the grounds that to return him to Afghanistan would be a breach of the United Kingdom's obligations under the Geneva Convention relating to the Status of Refugees, and the Convention for the Protection of Human Rights and Fundamental Freedoms. His appeal was heard in the first instance by an Adjudicator and dismissed in a decision promulgated on the 8^th December 2004.
2. The appellant sought leave to appeal that decision to the Immigration Appeal Tribunal, which granted permission to appeal essentially on the grounds that the Adjudicator came to a conclusion as to the appellant's credibility which was not properly reasoned, and failed to take into account significant aspects of his evidence. His appeal was overtaken by the coming into effect of the provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 as a result of which the leave to appeal was treated as an order for reconsideration by the Asylum and Immigration Tribunal. At the first hearing, on the 4^th April 2006, the Tribunal concluded that the Adjudicator's decision did disclose a material error of law and adjourned the reconsideration for a second stage hearing as to the merits, not limited to any issues. After a second stage hearing before Immigration Judge Sacks, the Immigration Judge dismissed the appeal. The appellant now appeals to this court.
3. Before the Adjudicator, the appellant's case, in general terms, was that he feared persecution within Afghanistan from the Northern Alliance because of his political beliefs and involvement with Hezb-e-Islami and subsequently the Taliban. He had joined the Hezb-e-Islami in early 1999, working as the bodyguard of a Commander. That group then formed links with the Taliban. The appellant's duties throughout the period that he was with his Commander and was working for the Taliban, included being present at searching houses of those suspected of having arms. He was involved in the arrest of those who were caught. Most of these activities took place in Mazar-e-Sharif. The Adjudicator stated that the basis of the appellant's case was that he was fearful when the Northern Alliance assumed control of Afghanistan that he would be arrested as a former member of the Taliban. That would be known because he could be identified from the work that he carried out in Mazar-e-Sharif. On his return he would be questioned and it would be found out at that stage that he was a former member of Hezb-e-Islami and subjected as a result to ill-treatment.
4. The Adjudicator considered that the appellant's evidence about his activities with Hezb-e-Islami and the Taliban was vague and implausible, particularly as he said he had been involved in no combat in what was otherwise a period of heavy fighting. He did not consider that there was any reason to suppose that the appellant would be identified as a former member of either the Hezb-e-Islami or the Taliban on his return. He rejected the argument that he might be identified by the families of the 40-50 people he said that he had been involved in arresting in Mazar-e-Sharif. He concluded that in so far as the appellant would be identified as a member of the Taliban, he would be at no serious risk on return, particularly since he had been out of Afghanistan for two years. As a result he concluded that the appellant's return would not be a breach of either Convention.
5. The Tribunal which considered the question of whether or not there was an error in law, having related the Adjudicator's findings, concluded that the Adjudicator had failed to give adequate reasons for concluding that the appellant's account was implausible, and had not taken into account the appellant's claim to have been involved at a fairly high level, in that he had asserted that he was bodyguard to a Commander, and that the Tribunal had failed adequately to take into account the risks on return of a person in the appellant's position which had been identified in RS (Hezb-e-Islami – expert evidence) Afghanistan [2004] UKIAT 00278. Having found a material error of law, the Tribunal concluded that the lack of clarity in relation to the credibility findings did not enable it to dispose of the reconsideration, which was then adjourned for a hearing on the merits, not limited to any issues.
6. The appellant essentially repeated before Immigration Judge Sacks the evidence that he had given to the Adjudicator. This evidence is set out in more detail in the Immigration Judge's determination. In particular the Immigration Judge relates that once the Americans took control of Afghanistan, members of the Northern Alliance began a serious search for those who worked for the Taliban in order to kill them. In the course of those searches the appellant's father was beaten up by people who were looking for him, the appellant. He was in hiding at the time, and it was as a result of this incident that he decided to leave Afghanistan. He underlined the fact that he was well known in Mazar-e-Sharif because of his duties as a bodyguard to the Commander, who was affiliated first to the Hezb-e-Islami and then the Taliban, to an extent that would mean that he was at real risk of being recognised. He accepted that his evidence was that although he had been involved in carrying out numerous duties for his Commander, in particular house searches, which he carried out on 40 to 50 occasions, he was never on active duty and never fought. The nearest he got to being involved in fighting was transporting ammunition from one checkpoint to another.
7. The appellant accepted in cross-examination that he had not been in Kabul for 14 years were he to return. He was unable to give any information about his family or their position in Afghanistan. He agreed that he had obtained a passport from the Afghan Embassy in London. He had done so in order to be able to verify his identity for the purposes of obtaining a driving licence in this country. All he had to do to obtain the passport was to provide a photograph and pay money. When it was put to him that he could not have had any fears of the authorities in Afghanistan if he was prepared to ask for a passport, he said that he did not believe that any checks would be made; obtaining an Afghan passport was simply like buying an item from a shop.
8. Having considered a number of authorities to which the appellant referred, and the up-to-date COI report of April 2006, the Immigration Judge concluded that low-profile or ordinary Taliban members like the appellant would not face problems. He also considered the case of RS to which I have already referred, and which contained a detailed consideration of a report from a Dr Lau on conditions in Afghanistan. The Immigration Judge concluded that those who had come to the attention of the Northern Alliance as having been involved in significant Hezb-e-Islami activities were at risk of being interrogated and mistreated, but there was no evidence that, unlike the appellant in RS, this appellant had ever been arrested, detained or questioned before leaving Afghanistan. He noted that the account that the appellant gave was difficult to challenge or question, because of its lack of detail.
9. In paragraph 36 of his decision, the Immigration Judge said this:

"If I find this appellant to be credible then I would accept that he has been a member of Hezb-e-Islami and the Taliban. I find it however difficult in this case to accept that this appellant is a credible witness. "

10. He then went on to deal with the reasons that he came to that conclusion. Firstly he considered that the appellant would, had he in truth been involved with the Hezb-e-Islami and the Taliban, have been more significantly involved, in particular he would have been involved in fighting bearing in mind the conditions in Afghanistan at the relevant time. He considered that the appellant was in any event not involved at a significantly high level in such organisations. Leaving aside, for the moment, an important paragraph relating to the conclusions to be drawn from his obtaining the passport, the Immigration Judge, although apparently dealing with issues of credibility, then went on to set out conclusions, namely that there was little or no prospect of the appellant being identified as a member of either organisation or coming to the attention of the authorities, and in particular on his being returned to Kabul he did not consider that he would be likely to be questioned in such a way as to be identified. The judge repeated his views about the relevance of the case of RS. But critical to the Immigration Judge's conclusion would appear to be the obtaining of the passport. He dealt with it in these terms:

"I now turn to the question of whether the appellant's rights in any event under the Convention cease to apply by virtue of Article 1C(1) of the Convention. The Appellant states that he goes to the Afghan Embassy to seek a passport so he can obtain a driving licence. The Appellant then wished to use the driving licence as a means of identification. I must ask myself whether the Appellant's actions in doing this caused him to lose his protection under the Refugee Convention on the basis that he has re-availed himself of protection or whether his actions are such that I can find that an exception to the rule exists. If a refugee applies for and obtains a national passport or its renewal, it will in the absence of proof to the contrary be presumed that he intends to avail himself of the protection of the country of his nationality. On the other hand the acquisition of documents from the national authorities for which non-nationals would likewise have to apply, such as birth or marriage certificates or similar services, cannot be regarded as re-availment of protection. There are some exceptions that can be made to this rule and these are referred to in the case of MW Pakistan [2004] UKIAT 00136. There is reference to a person being instructed to obtain a national passport by the authorities of his country of refuge or when he is obliged to do so by circumstances beyond his control. There are also exceptions that can be made for documents which are not passports and so not exclusive to nationals of the country in question. There is no question in this case of the appellant having been instructed to obtain a national passport by the authorities of his country of refuge namely the United Kingdom or him being obliged to do so by circumstances beyond his control. The appellant has applied for a normal Afghan passport which is granted without question. I can find no justification in this case for finding that an exception to the rule exists. In this case I am satisfied that Article 1C(1) of the Refugee Convention applies in this case and that by virtue of his seeking an Afghan passport the Refugee Convention ceases to apply to this appellant, and that he has voluntarily re-availed himself of the protection of the country of nationality namely Afghanistan."

11. It is accepted on behalf of the respondent that in this sub-paragraph the Immigration Judge both misunderstood and misapplied Article 1C(1) of the Convention. Article 1 deals with the definition of the word "refugee". By Article 1A(2) (as amended by the 1967 Protocol relating to the Status of Refugees), a refugee, as is now well known, is a person who has a well-founded fear of being persecuted for a Convention reason, were he to be returned to the country of his nationality. Article 1C provides:

"This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his nationality...."

12. The Immigration Judge concluded that, in the light of this paragraph in Article 1C, the obtaining of the passport provided a discrete and complete answer to the appellant's claim for asylum. In doing so, he clearly followed the Tribunal decision in MW (national passport: re-availment of protection) Pakistan [2004] UKIAT 00136. Unfortunately, the Tribunal in that case did not have the benefit of the copious citing of authority, both judicial and academic, on the proper application of Article 1C which we have had. From this it is abundantly plain that Article 1C is, in itself, of no relevance when the decision-maker is determining whether or not a person is a "refugee" within the meaning of Article 1A. Article 1C contains what are properly described as "cessation clauses". They set out the circumstances in which a person who has been recognised as a refugee loses that status. That follows from the words: "This Convention shall cease to apply to any person falling under the terms of section A." In the context of another paragraph of Article 1C, Lord Brown in Hoxha & B [2005] 1WLR 1063 at para 60, said:

"The whole scheme of the Convention points irresistibly towards a two-stage rather than a composite approach to 1A(2) and 1C(5). Stage 1, the formal determination of an asylum-seeker's refugee status, dictates whether a 1A(2) applicant (who may, indeed be someone previously held not to qualify as a statutory refugee by the International Refugee Organisation – see the second paragraph of 1A(1)), is to be recognised as a refugee. 1C(5), a cessation clause, simply has no application at that stage, indeed no application at any stage unless and until it is invoked by the state against the refugee in order to deprive him of the refugee status previously accorded to him."

13. It follows that Article 1C(1) strictly has no relevance to the present appeal. That does not, however, mean that the facts relating to the appellant's obtaining of the Afghan passport are irrelevant. They form part of the evidence available to the Tribunal to determine whether or not, in truth, the appellant does have a well-founded fear of persecution were he to be returned to Afghanistan. The Immigration Judge was therefore perfectly entitled to have regard to them. But in seeking to apply some sort of "rule" derived from Article 1C(1) as he appears to have done, he erred in law.
14. We have been urged by Miss Giovannetti, nonetheless, to dismiss this appeal on the basis that the Immigration Judge had made sufficiently clear findings in relation to credibility, and in particular in relation to the risks on return to Afghanistan. As always that argument was presented cogently and attractively. But in the end, I have not been persuaded that the Immigration Judge's decision is sufficiently clear to justify such a course. The way he has phrased his credibility findings is not so cogently expressed as to make me confident that his approach to the passport incident has not had some effect on his conclusions as to credibility. The passage which I have cited above is, after all, in the part of his decision which deals with credibility, although, as I have already said, the form of the decision is not perhaps as logically laid out as one would wish. Where the error of law which has been identified as vitiating the earlier decision is a failure to give proper reasons for an adverse credibility finding, it seems to me that this court should be cautious about accepting a credibility finding on reconsideration in such circumstances, unless that finding is one which can be confidently relied on. I do not feel that the findings in the present case fall into that category. I would accordingly allow the appeal, and remit the matter to the Tribunal for a further second stage reconsideration.

CHARLES J: I agree.

WARD LJ: I also agree.