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

On a second appeal, permission requires a point of principle or practice, or another compelling reason for the Court of Appeal to intervene. Serious but fact-specific complaints do not satisfy that threshold where they would fail even under the first-appeal test.

In assessing an adult’s relationship with foster carers under Article 8, a tribunal may consider the temporary nature of fostering, the claimant’s age, independence and changing circumstances, and the likely attenuation of ties. A tribunal must take a minor’s age into account when assessing credibility, but may reject an extremely vague account where corroborative enquiries were not adequately explained. A country report must be assessed by reading the determination as a whole.

The appellant challenged the Upper Tribunal’s determination of 21 October 2013, which dismissed his appeal against refusal of further leave to remain, asylum and humanitarian protection. His earlier appeal had been dismissed by the First-tier Tribunal in December 2010. An earlier Upper Tribunal determination was later set aside and the matter remitted for reconsideration.

The renewed application concerned alleged errors in the assessment of Article 8 family life with foster carers, the appellant’s credibility, his minority, and an expert country report. The central issue was whether those complaints disclosed a compelling reason for a second appeal.

1. Disposition. The renewed application for permission to appeal was refused. The grounds had no real prospect of success even under the first-appeal test and fell far short of the threshold for a second appeal.
2. Article 8. The Upper Tribunal expressly accepted that the appellant had established private and family life with his foster carers and that removal engaged Article 8. It was entitled to assess the nature and quality of that relationship by reference to the criteria derived from Kugathas. Describing fostering as inherently temporary and limited was not an error of law. The Tribunal was also entitled to take account of the appellant’s age, his participation in a leaving-care programme, his increasing independence, his stated reliance on friends, and the likely attenuation of ties as he established an adult life.
3. Credibility. The Upper Tribunal expressly took account of the appellant’s young age when assessing his account of events. It nevertheless had adequate reasons for attaching little weight to an extremely vague account, particularly after the account had been challenged and the appellant had not satisfactorily explained why enquiries had not been made of relatives who might have provided further information.
4. Country evidence. The expert country report was considered at the outset of the Tribunal’s findings. The determination had to be read as a whole. It was therefore untenable to suggest that the report had been considered only in relation to risk and not when assessing credibility.
5. The alleged errors were fact-specific and disclosed neither a point of principle or practice nor another compelling reason for the Court of Appeal to hear the second appeal.

1. Court of Appeal (Civil Division) — The renewed application for permission to appeal was refused in [2014] EWCA Civ 735.
2. Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Shaerf dismissed the appellant’s appeal in a determination dated 21 October 2013, following the setting aside and remittal of an earlier Upper Tribunal determination.
3. First-tier Tribunal — The appellant’s original appeal was dismissed in a determination promulgated on 11 December 2010.