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

In asylum cases, procedural delay may be excused where the court must remain attentive to the United Kingdom’s international obligations to determine claims that genuinely concern asylum. A tribunal’s failure to consider a country-guidance case can amount to an error of law rather than a mere mistake of fact. The same may apply to a decision not formally designated as country guidance but treated by its deciding court as having equivalent status. A tribunal assessing protection at a likely future return date does not necessarily err by considering that date, particularly where it finds the claimant safe both at the hearing and on return. The judgment concerned permission to appeal and did not determine the substantive asylum claim.

The appellant, an Afghan national, entered the United Kingdom as an unaccompanied minor shortly before his fifteenth birthday. His claim relied principally on the position of his father, a prominent Taliban commander. An immigration judge found him credible but rejected the claim because he had not established membership of a relevant social group. On reconsideration, the Asylum and Immigration Tribunal found that he faced no risk on return in the autumn of 2008 and reassessed aspects of his credibility.

Following a paper refusal of permission by Sir Henry Brooke, the appellant renewed his application. The issues included the relevant date for assessing risk, the scope of the AIT’s reconsideration, failure to consider RS (Afghanistan) v SSHD [2004] UKIAT00278, guidance concerning unaccompanied children, and the social-group issue.

The court extended time despite unexplained procedural delay. In asylum matters, procedural default should not automatically prevent consideration where the court must remain aware of the United Kingdom’s international obligations to deal with genuine asylum cases.

1. The complaint that the AIT assessed risk by reference to the anticipated return date in September 2008 was regarded as weak. The likely return date was operative, and the AIT had found that the appellant was safe both at the time of decision and on the evidence available about the future date. The court considered that a hearing-date approach would have produced the same result. Permission was nevertheless granted to pursue the point.
2. It was arguable that the AIT had exceeded the proper scope of reconsideration. The immigration judge had found the appellant entirely credible and had rejected the claim on the social-group issue. The AIT therefore arguably should not have undertaken a complete reconsideration and reopened general credibility.
3. The AIT had failed to consider RS (Afghanistan) v SSHD [2004] UKIAT00278, which addressed the risk to children of Taliban leaders. The court treated that omission as capable of constituting an error of law. R (Iran) and Others v SSHD [2005] INLR 633 supported the proposition that failure to address a country-guidance case may be an error of law rather than merely a factual mistake. Although RS was not formally a country-guidance case, it appeared to have a status akin to country guidance and required consideration.
4. It was also arguable that the AIT should have addressed the chief adjudicator’s guidance concerning unaccompanied children when assessing the appellant’s credibility. The social-group issue required reconsideration, including the significance of the finding that the appellant’s father would himself qualify for international protection.

The application was granted. Time was extended, permission to appeal was granted, and the appellant was given leave to redraw the grounds by 10 January 2008. The substantive asylum claim was not finally determined.

• Court of Appeal (Civil Division): On 19 December 2007, the court granted the renewed application for permission to appeal, extended time, and allowed the grounds to be redrawn. The merits of the asylum claim were not determined.
• Asylum and Immigration Tribunal: By a determination dated 8 March 2007, the AIT reconsidered the claim and found no material risk on the anticipated return date. The renewed application followed a paper refusal of permission by Sir Henry Brooke.