SM (Afghanistan) v The Secretary of State for the Home Department

A reconsideration of an immigration decision is justified only by an arguable error of law. A specialist tribunal’s determination must give clear and self-contained reasons, but concise reasoning does not constitute an error of law where its findings, the country material and its conclusion adequately reveal the basis of the decision.

When internal relocation is relied upon to answer a risk from non-state actors, the tribunal must assess the individual risk of pursuit, whether it extends to the proposed place of relocation, the actor’s capacity there, and the adequacy of state protection. These are fact-sensitive questions to be answered from the claimant’s circumstances and the country evidence.

The appellant, an Afghan national, had been found credible by Immigration Judge Metzer. He had long associations with Hizb-I-Islami, had refused an order to carry out a suicide bombing, and had significant learning difficulties. The immigration judge allowed his asylum appeal, finding a real risk throughout Afghanistan, including Kabul.

Following reconsideration, the Upper Tribunal allowed the Secretary of State’s appeal and substituted a dismissal. It held that relocation to Kabul would be safe and not unduly harsh. The appellant appealed to the Court of Appeal. The central issue was whether the original immigration judge had made an error of law by inadequately reasoning his findings on risk in Kabul and state protection.

1. Appeal allowed. Pill LJ, with whom Munby LJ and Baron J agreed, held that Immigration Judge Metzer’s decision disclosed no error of law. His decision allowing the asylum appeal therefore remained operative.

2. The immigration judge’s factual findings were clear. The evidence entitled him to find a real risk of retribution by Hizb-I-Islami. Material considerations included the appellant’s long association with the organisation, his status as the heir of a martyr, his refusal of a direct order to carry out a suicide bombing, and the killing of his uncle after a comparable refusal.

3. The judge was also entitled to conclude that the risk extended to Kabul. The country material, including that considered in [2007] UKAIT 00089, supported a finding that Hizb-I-Islami remained active and capable of operating there. Although the reasoning was thin, it sufficiently connected the findings and the country evidence to the conclusion. Further reasoning was desirable but its absence did not create an error of law.

4. Munby LJ analysed the case as requiring answers to four questions: the risk of retribution; whether it extended to Kabul; the organisation’s capacity to act there; and the adequacy of state protection. In a non-state actor case, inadequate state protection must be established. The immigration judge had made that finding by necessary implication in reaching his conclusion that the appellant had a well-founded fear of Convention persecution. The country guidance in [2008] UKAIT 00013 confirmed that, where a real individual risk in Kabul was established, the authorities were not capable of providing individual protection to the requisite standard.

• Court of Appeal (Civil Division): Allowed the appellant’s appeal in [2011] EWCA Civ 573 and restored the original decision allowing asylum.
• Upper Tribunal (Immigration and Asylum Chamber): On 20 May 2010, allowed the Secretary of State’s appeal following reconsideration and substituted a decision dismissing the appellant’s appeal.
• First-tier tribunal decision: On 26 May 2009, Immigration Judge Metzer allowed the appellant’s appeal against the Secretary of State’s refusal, dated 12 November 2008, to grant asylum.