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

In an asylum appeal, the tribunal must assess whether removal would create a well-founded fear of persecution at the date of the hearing. A later removal date may be relevant to the practical timing of removal, but it does not replace the statutory assessment date. Country guidance concerning persons associated with an organisation does not automatically establish a risk to their children or other relatives. The evidence must address the claimant’s own position and the claimed Refugee Convention reason. An appellate court will not entertain a new social-group case that was not advanced before the tribunal. A tribunal’s finding that there is no objective basis for risk is sufficient where each of its stated, disjunctive reasons independently supports the conclusion.

The appellant, an unaccompanied Afghan minor, claimed asylum and humanitarian protection on the basis that his father had been a prominent Taliban and Hizb-i-Islami commander. The Secretary of State refused asylum but granted discretionary leave until the appellant’s eighteenth birthday. The first appeal was dismissed, reconsideration was ordered, and the Asylum and Immigration Tribunal dismissed the appeal again on 12 March 2007.

The appellant challenged the reconsideration decision on six grounds, including use of the wrong date, treatment of his credibility, failure to apply guidance for unaccompanied children, failure to consider country material, and failure to recognise membership of a particular social group. The central issue was whether the tribunal had erred in finding no objective basis for a risk to the appellant on return.

1. Appeal dismissed. The tribunal had to assess hypothetical refoulement at the date of the hearing under sections 84(1)(g)(iii), 84(3) and 85(4) of the Nationality, Immigration and Asylum Act 2002. Its references to September 2008 acknowledged when removal could occur and did not show that it had applied the wrong date. In any event, any error would not have been material because the evidence related to the situation no later than the hearing date.
2. The court did not need to decide whether the tribunal was entitled to revisit the earlier credibility finding, because its conclusion was independently supported by the absence of an objective basis for risk.
3. Although the tribunal should have referred expressly to guidance on assessing evidence from unaccompanied child asylum seekers, the reference to the appellant’s age did not show that it had made the impermissible assumption identified in the guidance.
4. The guidance in RS (Hizb-i-Islami) v SSHD concerned current or former members, or persons suspected of involvement, with Hizb-i-Islami. It did not establish a risk merely from being the child or family member of such a person. The same was true of the country material relied on. The tribunal’s two reasons for finding no objective basis for risk were disjunctive: there was no reason why the relationship with the father would come to light, and no evidence that teenage children of a Taliban commander attracted interest from the Kabul authorities. Each reason independently supported the dismissal.
5. A claim based on membership of the father’s family as a particular social group had not been advanced below and could not be raised for the first time on appeal.

Lord Justice Mummery and Lord Justice Maurice Kay agreed with Lord Justice Dyson. The order was: appeal dismissed.

• Court of Appeal (Civil Division): The appeal from the Asylum and Immigration Tribunal was dismissed. Lord Justice Dyson gave the judgment, with Lord Justice Mummery and Lord Justice Maurice Kay agreeing.
• Asylum and Immigration Tribunal: The appellant’s appeal was dismissed on reconsideration in a decision promulgated on 12 March 2007. Reconsideration had followed the earlier dismissal by Immigration Judge Youngerwood on 23 November 2005.