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

Under article 8 of the Qualification Directive, internal relocation requires a holistic assessment of whether the particular applicant can reasonably be expected to live in the proposed safe haven without undue hardship. The fact that comparable hardship is experienced by a significant minority, or even more widely, may inform what is relatively normal in the country concerned. It is not a separate or determinative test.

All relevant country conditions and personal circumstances must be considered. Conditions which are common may nevertheless be unduly harsh. The phrase “relatively normal life” is a valuable touchstone, not a substitute for the governing question stated in [2006] UKHL 5 and [2006] UKHL 49.

The Upper Tribunal gave country guidance that internal relocation to Kabul would generally not be unreasonable or unduly harsh for a healthy single adult man, even without a support network. It dismissed AS’s appeal against removal to Afghanistan on that basis.

AS appealed on two permitted grounds. First, he challenged the Tribunal’s calculation of the proportion of Kabul’s population directly affected by security incidents. Secondly, he contended that the Tribunal had misunderstood the comparison required when assessing whether conditions in Kabul would permit a relatively normal life.

The central issue was whether the Tribunal had lawfully applied article 8 of the Qualification Directive when assessing Kabul as an internal-relocation alternative.

1. Appeal allowed on ground 1 and dismissed on ground 2. The Upper Tribunal’s conclusion that fewer than 0.01% of Kabul’s population would be casualties of security incidents was unsupported by the evidence. The correct calculation on the figures used was 0.1%. That factual error was an error of law because it materially informed the assessment of whether relocation was reasonable.

2. The question under article 8 is whether, taking account of all relevant circumstances concerning the applicant and country of origin, it is reasonable to expect relocation or unduly harsh to require it. The assessment is holistic. No relevant factor has inherent priority. The ability to lead a relatively normal life without undue hardship in the context of the country is a useful touchstone, but it is not a distinct legal test.

3. Conditions experienced by a significant minority can be relatively normal in the relevant country context. Lord Brown’s observation in AH (Sudan) did not establish a “significant minority test” which makes relocation reasonable whenever a comparator group experiences equivalent hardship. Conditions may be widespread but objectively unduly harsh. The decision-maker must still assess their impact on the particular applicant.

4. The Tribunal’s formulation of the law risked placing undue focus on a significant-minority comparison. Read in context, however, its dispositive reasoning reviewed the relevant security, humanitarian and personal factors and reached an objective conclusion on undue hardship. Apart from the erroneous security calculation, no error of law was established. The Tribunal was not required expressly to address the difference between life in rural Laghman and Kabul without a particularised case on its impact.

5. The case was remitted to a differently constituted Upper Tribunal to reconsider the security-risk element only, using the evidence afresh and any updated evidence. The Tribunal could consider whether subsequent UNHCR guidance required a wider reconsideration of the country guidance.

• Court of Appeal (Civil Division): Allowed the appeal on the error in the security-risk calculation, dismissed the challenge to the legal approach to internal relocation, and remitted the security issue: [2019] EWCA Civ 873.
• Upper Tribunal (Immigration and Asylum Chamber): On 23 March 2018, issued country guidance that Kabul was generally a reasonable internal-relocation alternative for a healthy single adult male and dismissed AS’s appeal.