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

For the purposes of Council Directive 2004/83/EC, article 4(4) is engaged only where earlier persecution, serious harm or direct threats are accepted as such. It is not engaged merely because injuries occurred while an applicant was in the company of an alleged persecutor. Where a tribunal rejects the account of how injuries were caused and has no alternative evidential basis for treating them as relevant harm, its findings exclude the factual premise required by article 4(4).

The applicant challenged the decision of Deputy Upper Tribunal Judge Bowen, promulgated on 12 January 2012, which held that Immigration Judge Ford had made no error of law. Immigration Judge Ford had dismissed the applicant’s appeals on asylum, human rights and humanitarian protection grounds in a decision promulgated on 19 May 2011.

The renewed application concerned the interpretation and application of article 4(4) of Council Directive 2004/83/EC. A second ground concerned whether alleged Taliban persecution was for the Geneva Convention reason of religion. The central issue was whether either ground disclosed an arguable error satisfying the second-appeal criteria.

1. Permission refused. This was a renewed application for permission to bring a second appeal from the Upper Tribunal. Under CPR Part 52.13, permission could be given only if one of the specified second-appeal criteria was met. The guidance in PR (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 988 was relevant.
2. The challenge under article 4(4) of Council Directive 2004/83/EC had no real prospect of success. Article 4(4) treats previous persecution, serious harm or direct threats as a serious indication of future risk unless there are good reasons to consider that they will not be repeated. Immigration Judge Ford had not found that the applicant’s injuries were caused by the Taliban or Hizb-i-Islami, or that they constituted relevant persecution or serious harm.
3. The tribunal’s decision had to be read as a whole. Its acceptance that injuries occurred during the applicant’s time with the Taliban did not leave open the possibility that he had been the victim of persecution or serious harm at their hands. The judge had rejected the applicant’s account of causation and had no alternative explanation before her. Her findings therefore precluded engagement of article 4(4).
4. The reliance on Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, at 469, did not alter the result. The principle that material matters should be considered in assessing future risk was inapplicable because the relevant factual possibility had not been left open. Immigration Judge Ford had given full and clear reasons for finding that the applicant would not be at risk on return.
5. The second ground, concerning the Geneva Convention reason of religion, was parasitic upon the first and could not justify permission once the first ground failed. The proposed appeal satisfied neither second-appeal criterion.

• Court of Appeal (Civil Division): the renewed application for permission to appeal was refused by Lord Justice Rimer on 25 July 2012.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Bowen held that Immigration Judge Ford’s decision was not infected by an error of law and that her findings should stand; decision promulgated 12 January 2012.
• First-tier Tribunal: Immigration Judge Ford dismissed the applicant’s appeal on asylum, human rights and humanitarian protection grounds; decision promulgated 19 May 2011.