GH (Afghanistan) v Secretary of State for the Home Department

An appellate immigration tribunal whose jurisdiction is confined to points of law may entertain only a point discernible in the grounds on which permission was granted, subject to properly permitted amendment.

The special duty to identify an obvious Convention point protects the United Kingdom’s compliance with positive obligations under the Refugee Convention. It does not enable the Secretary of State to raise an unpleaded European Convention on Human Rights point, because granting relief beyond that Convention’s requirements does not breach an international obligation.

An asylum claim and an Article 3 claim do not necessarily stand or fall together. They may depend on materially different facts, including country conditions and their probable effect on a particular family.

An Afghan national, his wife and their five children entered the United Kingdom and claimed asylum. An adjudicator rejected the asylum claim but found that returning the family to Kabul, where they lacked a family or social network, would expose them to inhuman or degrading conditions contrary to Article 3 of the European Convention on Human Rights.

The Immigration Appeal Tribunal allowed the Secretary of State’s appeal. It held that the adjudicator had applied the wrong Article 3 test and, after considering updated country evidence, found no breach.

The claimant appealed. The central issue was whether the Tribunal had jurisdiction to decide the Article 3 threshold point when that point of law was not discernible in the Secretary of State’s grounds of appeal.

1. Appeal allowed. The Immigration Appeal Tribunal’s decision was quashed and the adjudicator’s decision restored. The Tribunal could entertain only an appeal on a point of law under section 101(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State’s grounds did not raise the legal distinction between domestic Article 3 cases and expulsion cases, or contend that exceptionally compelling circumstances were required. The Tribunal therefore lacked jurisdiction to decide the case on that basis.

2. The Tribunal had also misplaced its reliance on Kacaj [2002] Imm AR 213. The asylum claim concerned alleged persecution by the Taliban and the Mujahideen. The Article 3 claim concerned prevailing conditions in Afghanistan and their probable impact on this family. The two claims were not based on the same facts.

3. The rule in R v Secretary of State for the Home Department, ex p Robinson [1998] QB 928 requires an immigration tribunal to identify an obvious Convention point favourable to an asylum seeker where the point has a strong prospect of success. That exceptional duty reflects anxious scrutiny and the United Kingdom’s positive obligation to comply with the Refugee Convention. Its extension in A (Iraq) v Secretary of State for the Home Department [2005] EWCA Civ 1438 was justified by the mandatory exclusion in Article 1F.

4. The Robinson principle could not assist the Secretary of State here. The European Convention on Human Rights imposes no positive obligation to refuse relief. Granting relief when Article 3, properly understood, does not require it would not breach that Convention. An omitted obvious point may instead be added when permission is granted or, exceptionally, by an amendment allowed at the appeal hearing.

5. The jurisdictional conclusion disposed of the appeal. The court added that this was not a medical-treatment case. An adjudicator assessing living conditions abroad need not compare them with conditions in the United Kingdom, but must consider their probable impact while recognising that failed asylum seekers may be returned to countries with worse conditions. The court expressed no concluded view on that issue because it had not heard submissions upon it.

1. Court of Appeal (Civil Division): The claimant’s appeal was allowed. The Immigration Appeal Tribunal’s decision was quashed and the adjudicator’s decision restored: [2005] EWCA Civ 1603.

2. Immigration Appeal Tribunal: The Secretary of State’s appeal was allowed. The Tribunal found an error of law, considered updated country evidence and held that return to Kabul would not breach Article 3.

3. Adjudicator: The asylum appeal was dismissed, but the human-rights appeal was allowed because returning the family to Kabul in the prevailing conditions would breach Article 3.