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

On a second appeal, an asylum decision is not perverse merely because the evidence might support a different assessment. Where the tribunal has considered the material evidence and its conclusion is reasonably open to it, the Court of Appeal will not substitute its own view. An accepted history of intelligence work, a genuine but ephemeral newspaper reference with a small circulation, and speculative risks from a chance encounter or local enquiries did not establish a current real risk on relocation to Kabul. Country-guidance decisions must be read in context. Findings based on exceptional personal circumstances do not create a general rule for materially different cases.

MS, an Afghan national and former intelligence officer, claimed asylum on the basis that he faced a real risk from the Taliban if returned to Afghanistan and relocated to Kabul. Immigration Judge Mace dismissed his appeal, finding no current adverse interest sufficient to establish a real risk. The Upper Tribunal found an error of law in the treatment of a newspaper article referring to MS, but remade the decision, confined to risk on return in light of that article, and dismissed the appeal.

The Secretary of State offered a concession involving remission to the Upper Tribunal. MS rejected it and pursued an appeal on the sole ground of perversity. The central issue was whether the Upper Tribunal’s conclusion that MS faced no real risk in Kabul was perverse.

1. Disposition. The appeal was dismissed. MS had rejected the Secretary of State’s offer to remit the case and accepted that, if the perversity challenge failed, there would be no further opportunity for remission.
2. Scope of appellate review. The argument did not establish perversity. The Upper Tribunal had considered the newspaper article, the expert evidence and the accepted background in intelligence work. It was entitled to conclude that the article had little incremental value, particularly because it was an ephemeral publication with a very small circulation and was six years old. The speculative possibility of a chance encounter with Taliban or Hizb-e Islami members, or of local enquiries revealing MS’s history, did not necessarily reach the level of a real risk.
3. Country guidance. AJ (Homosexuals: risk) Afghanistan CG [2009] UKAIT 0001 turned on its particular and exceptional facts. Its discussion of relocation to Kabul did not establish a general rule. Similarly, AA (unattended children) Afghanistan CG [2012] UKUT 00016 distinguished between general country guidance and findings based on the individual circumstances of an unattached child without family protection. The evidence in those cases did not make the Upper Tribunal’s different assessment in MS’s case perverse.
4. The question whether MS himself had inspired the newspaper article, and why he had not relied on it for several years, remained unresolved. The Court of Appeal nevertheless could not decide of its own motion that MS was entitled to asylum or protection under Articles 2 and 3.

• Court of Appeal (Civil Division) dismissed the appeal: [2013] EWCA Civ 7.
• Upper Tribunal Immigration and Asylum Chamber found an error of law in Immigration Judge Mace’s treatment of the newspaper article, remade the decision on the confined issue of risk on return to Kabul, and dismissed the appeal.
• First-tier Tribunal Immigration Judge Mace dismissed the appeal on 25 October 2010, finding no current real risk from the Taliban or other insurgents on relocation to Kabul.