HKK v Secretary of State for the Home Department

An applicant relying on Article 3 of the ECHR bears the legal burden of showing a real risk of prohibited harm. The returning state must dispel doubts only after the applicant adduces evidence capable of proving substantial grounds for that risk. This does not shift the burden in every non-certified protection claim.

Article 4.5 of the Qualification Directive protects a cogent claim from failing solely for want of corroboration. It does not require acceptance merely because apparently supportive documents have been produced. A claimant must show that documents relied on can be relied upon. Strasbourg fact-finding conclusions must not be treated as general legal rules.

The appellant, an Afghan national, appealed against First-tier Tribunal Judge Moan’s decision of 21 November 2016 dismissing his appeal against refusal of his protection claim. He alleged that the Taliban had forcibly recruited his father, killed his parents and sought to recruit him in Nangarhar Province.

The First-tier Tribunal rejected his account as not credible, found no real risk from the Taliban, and rejected his Article 15(c) claim. The Upper Tribunal considered whether that decision contained a material error of law. The principal issues were the burden and standard of proof in an Article 3 protection claim, the effect of Article 4.5 of the Qualification Directive, and country material concerning forcible Taliban recruitment.

1. Appeal dismissed. The First-tier Tribunal made no material error of law. Its decision dismissing the protection appeal was upheld.

2. An appellant alleging that removal would breach Article 3 bears the legal burden of proof. The applicable standard is a reasonable likelihood or real risk of Article 3 harm. The Strasbourg requirement that the government dispel doubts applies after evidence capable of proving substantial grounds for the risk has been adduced; it does not displace the appellant’s burden in every non-certified claim.

3. Article 4.5 of the Qualification Directive, reflected in paragraph 339L of the Immigration Rules, concerns claims whose aspects lack documentary or other confirmation. If its conditions are met, a cogent claim should not fail merely because supporting documents are absent. The provision does not create the converse rule that a claimant with facially supportive documents has made out the claim despite credibility problems.

4. A document does not require the respondent to allege forgery before its weight may be challenged. The claimant must show that the document can be relied upon. Reliable documentary evidence may require the government to explain why there is nevertheless no real risk, but there is no bright-line rule governing fact-finding.

5. The First-tier Tribunal was entitled to reject the alleged risk of actual forcible recruitment. Read as a whole, the background material did not objectively establish the claimed risk. The extant country guidance required evidence of a real risk for the particular child, not a mere possibility. The credibility challenge based on the appellant’s age was not permitted and, in any event, lacked merit.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed; the First-tier Tribunal’s decision was upheld.
• First-tier Tribunal: First-tier Tribunal Judge Moan dismissed the appellant’s appeal against the Secretary of State’s refusal of the protection claim on 21 November 2016.
• Permission stage: Permission was initially refused in the First-tier Tribunal and Upper Tribunal. Following a successful judicial review of the latter refusal, permission was granted by the Vice President on 22 November 2017.