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

A renewed application for permission to appeal should be granted where the proposed appeal raises an issue of principle requiring determination by a full court. In assessing the risk of returning a child to Afghanistan without family resident there, the court may need to determine whether family living abroad can and will return or provide support, whether that may be inferred without positive evidence, and where the burden lies. Earlier decisions, including HK & Ors [2010] UKUT 378 and [2012] EWCA Civ 315, concerned the relevance of family resident in Afghanistan and their willingness and ability to receive and protect the child. The grant of permission left the substantive issue for the full court.

The appellant, an Afghan national aged 16 when the First-tier Tribunal decided his case, challenged the conclusion that he could be returned to Afghanistan. The First-tier Tribunal relied on the possibility that his father, who lived and worked in the United Kingdom and held indefinite leave to remain, could return to Kabul or provide financial support there.

The Upper Tribunal refused permission to appeal. On renewal, the appellant argued that the conclusions about his father’s return or financial support were based on inference without evidence of his means or intentions. The central issue was whether, where family lived outside Afghanistan, a tribunal could infer that the family could and would return or provide support, and on whom the evidential burden lay.

Permission granted. Lord Justice Beatson held that the renewed application raised an issue of principle for consideration by a full court.

1. The existing authorities, including HK & Ors [2010] UKUT 378 and [2012] EWCA Civ 315, addressed the return of children who had family resident in Afghanistan. They indicated that return could be possible where a family member had been involved in the child’s welfare and life, and there was no evidence that the person was unable or unwilling to receive and assist the child, notwithstanding difficulties with reception facilities in Kabul.
2. The present case raised a materially different issue because the appellant’s father lived in the United Kingdom. The First-tier Tribunal had inferred that the father could either return to Afghanistan or provide sufficient financial support in Kabul. The appellant contended that there was no evidence of his father’s means or intention to do either.
3. The full court therefore needed to determine the proper approach to the risk on return of a child without family resident in Afghanistan where family lived abroad. It also needed to determine whether it was permissible to infer, without positive evidence, that the family could return or provide support, and on whom the burden lay. Lord Justice Beatson did not decide those substantive questions.
4. Permission was granted. The matter was to be listed for half a day before a three-judge court, including a judge with immigration-law experience. Order: application granted.

1. Court of Appeal (Civil Division): granted the renewed application for permission to appeal and directed that the substantive issue be considered by a three-judge court.
2. Upper Tribunal (Immigration & Asylum Chamber): refused permission to appeal.
3. First-tier Tribunal: held that the appellant could be returned to Afghanistan, relying on the possibility of return or financial support by his father.