UK: Court of Appeal, R (on the application of HN and SA) (Afghanistan) v. the Secretary of State for the Home Department
Date:
Thursday, March 3, 2016
This case relates to two Afghan nationals, H.N. and S.A. who each had their asylum claims and appeals refused. They were due to be forcibly returned to Afghanistan in March 2015 but obtained an injunction from the courts to prevent this. They then made subsequent asylum claims arguing that recent evidence on the security situation in Afghanistan justified a departure from the findings in the current country guidance in AK (Article 15(c)) Afghanistan CG, [2012]. As such they would be at risk of indiscriminate violence if returned to their province, and internal relocation to Kabul would be unreasonable, so they should be entitled to subsidiary protection pursuant to Article 15c) of the Qualification Directive . Alternatively, they claimed that under Home Office policy they should be considered as vulnerable persons who should not be returned to Afghanistan. The Secretary of State for the Home Department decided that their claims did not amount to a subsequent application. The lawfulness of this finding was upheld on judicial review to the Upper Tribunal. The Court of Appeal’s role in this case was limited to assessing the lawfulness of this decision.
Pending consideration of this case, a generic injunction was ordered prohibiting the forced removal of anyone who was habitually resident in ‘dangerous provinces’ of Afghanistan (anywhere except Kabul, Bamiyan and Panjshir). The Court of Appeal found that the Secretary of State for the Home Department and the Upper Tribunal had properly considered the relevant tests, the evidence on Afghanistan, and the circumstances of the applicants, and their decisions were upheld. This means that the findings in AK that the security situation in Afghanistan does not meet the Article 15(c) threshold remains valid and the general injunction may now be lifted.
This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.
Keywords:
Indiscriminate violence
Internal armed conflict
Return
Subsequent application
Subsidiary Protection
