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

Internal relocation is available only if the individual faces no real risk of persecution in the proposed area and it would not be unduly harsh to expect relocation. Both questions require a fact-specific assessment informed by the latest Country Guidance and the totality of expert evidence. A tribunal may decide the weight of expert evidence but should explain any material rejection. Country Guidance must be applied to the evidence in the later case, with case-specific facts distinguished where necessary. Family connections are relevant to undue harshness but are not decisive. Maturity, health, education, language, cultural familiarity, independence and resettlement assistance may all be relevant.

The appellant, an Afghan national who arrived in the United Kingdom as an unaccompanied minor, sought further leave to remain after discretionary leave expired. He relied, among other matters, on articles 2 and 3 of the European Convention on Human Rights, fearing Taliban ill-treatment. The Secretary of State considered that he could relocate safely to Kabul. The First-tier Tribunal accepted his core account but rejected the expert assessment of risk and found relocation safe and reasonable. The Upper Tribunal upheld that conclusion in its determination dated 23 November 2015, [2015] UKAITUR AA056652014. The appeal concerned whether the findings on risk and undue harshness were unlawful or contrary to Country Guidance.

The appeal was dismissed. Lord Justice Simon gave the judgment, and Lord Justice Sales agreed.

1. Applicable test. Internal relocation requires separate inquiries: whether the individual faces a real risk of persecution in the proposed area and whether it would be unduly harsh to expect relocation there. Each inquiry is fact-specific. Undue harshness is assessed by considering whether the individual could live a relatively normal life by the standards generally prevailing in the country of nationality, as explained in Januzi v Secretary of State for the Home Department [2006] UKHL 5.
2. Country Guidance and evidence. Tribunals must have regard to relevant Country Guidance and expert evidence. Country Guidance provides general guidance on country conditions and risks to particular categories of people. The tribunal determines the weight of expert evidence by reference to the totality of the evidence and should explain why material evidence is not accepted.
3. Application to risk in Kabul. Country Guidance is authoritative for the identified issue where the later case depends on the same or similar evidence, but case-specific findings must be distinguished. The appellant was not greatly assisted by the materially different facts in AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC). H & B v The United Kingdom (2013) 57 EHRR 17 had considered the relevant Country Guidance and supported the approach taken by the First-tier Tribunal. There was no inconsistency requiring one authority to be preferred over the other.
4. The First-tier Tribunal had assessed the risk by reference to the appellant’s low public profile and the lapse of time since the attempted kidnapping. Evidence of attacks on high-profile targets did not establish a comparable risk to this appellant. A challenge to the weight given to evidence faced formidable difficulties and did not establish perversity, irrationality or illegality.
5. Undue harshness. The absence of family connections in Kabul was a relevant factor but was not decisive. The appellant’s maturity, resourcefulness, health, education, language skills, familiarity with Afghan culture, ability to live independently and available resettlement assistance sufficiently supported the conclusion that relocation was not unduly harsh. The assessment was consistent with AK (Article 15(c) Afghanistan CC) [2012] UKUT 163 (IAC) and H & B v The United Kingdom (2013) 57 EHRR 17.

1. Court of Appeal (Civil Division). On 31 October 2018, dismissed the appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber). In a determination dated 23 November 2015, [2015] UKAITUR AA056652014, upheld the First-tier Tribunal’s conclusion on internal relocation.
3. First-tier Tribunal. In a determination promulgated on 11 May 2015, accepted the appellant’s core account but found that he could safely relocate to Kabul.
4. Secretary of State. A decision dated 17 July 2014 refused further leave and concluded that relocation to Kabul or another area of Afghanistan was available.