R (ND Afghanistan) v Upper Tribunal (IAC) (CO/3975/2019)

 

ND is a young Afghan man. The FtTIAC accepted he was tortured by the Taliban and would be at future risk in his home area, but dismissed his asylum appeal as he could relocate to Kabul in accordance with the country guideline decision AS (Safety of Kabul) Afghanistan CG [2018] UKUT 11 (“the Afghan CG”). The UTIAC refused an application for permission to appeal, brought by his previous lawyer, describing the grounds in support as “hopelessly vague”.

 

Although ND was eligible for legal aid, his previous lawyer told him that challenging the UTIAC decision by Cart Judicial Review would cost at least £2,500 which ND did not have and could not get from any other source, including from the local authority responsible for him. After several weeks of trying but failing to find a lawyer willing to provide representation, ND attended an out-reach surgery at Coram Children’s Legal Centre who referred him to JCWI for advice on bringing an out of time Cart JR funded by legal aid. JCWI took on the case, secured public funding, and instructed counsel.  

 

In the Cart JR, ND argued that the FtTIAC had failed to consider (1) the UNHCR’s 2018 Eligibility Guidelines on Afghanistan, and (2) the case of AS (Afghanistan) v SSHD [2019] EWCA Civ 873 which (although only available the day after promulgation of the FtTIAC’s decision) held that the Afghan CG was based on a mistake of fact amounting to a material error of law. He argued  any decisions based on it is flawed too (see e.g. OO (AA (1) wrong in law) Zimbabwe CG [2006] UKAIT 0077).

 

The SSHD was named as an interested party in the claim against the tribunal and effectively stood in its shoes. She filed written grounds of resistance and made detailed submissions at a permission hearing in the Admin Court.  Stacey J rejected the SSHD’s arguments, extended time to bring the claim by 2.5 months, and granted ND permission. She held that, together, the grounds created an arguable and compelling reason to hear the claim (satisfying the second appeals test). The SSHD has not contested the case any further so ND’s appeal will soon be transferred to the UTIAC for consideration of the FtTIAC’s errors pending promulgation of the new Afghan CG.

 

ND was represented in his judicial review by Laura Smith of JCWI instructing Ali Bandegani of Garden Court Chambers.