Blog post by Eric Fripp, Barrister at The 36 Group and RLI Visiting Fellow.
On Friday 13 August 2021, Afghanistan was ruled by a government led by Dr Mohammad Ashraf Ghani Ahmadzai (‘Dr Ashraf Ghani’), who was elected in 2014 and had been re-elected in 2019. That government was engaged in an armed conflict against the Taliban, an armed opposition movement. In the course of Sunday 15 August 2021 Dr Ashraf Ghani departed from Afghanistan and his government effectively collapsed, the country becoming entirely dominated by the Taliban. Given past crimes by the Taliban against significant parts of the Afghan population this obviously raises immediate protection concerns as regards many people and groups in Afghanistan.
It seems inevitable that many Afghan nationals will in due course seek asylum or other protection in the United Kingdom. Some have never made any such claim before. Some have made a claim which is still under consideration or in litigation, and the change of circumstances will have to be dealt with either within ongoing proceedings, or by a new claim to protection. Some others will already have failed in a previous claim, either because this was refused by the Secretary of State for the Home department or because appeal from a refusal was unsuccessful.
How do these events affect Afghan nationals in the United Kingdom who have in past been unsuccessful in representations seeking protection from return? The University of London (UoL) offers a Refugee Law Clinic that provides pro bono legal advice for refugee clients based on a model of clinical legal education for its diverse student body. To its work I have contributed an introductory Background Paper on Fresh Claims to Protection from Refoulement. What follows is an account of some considerations which may arise, for those considering potential fresh claims from Afghans in the United Kingdom.
First, in the United Kingdom a claim to protection will be recognised as a fresh claim, and so attract a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) if the representations ‘are significantly different from the material that has previously been considered’ which will be the case if the content both (i) ‘had not already been considered’ and (ii) ‘taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection [earlier]’.
As set out in the Background Paper, at paras 7-8, the Court of Appeal has held that the basic character of the claim- for example the characteristic by reference to which someone is seeking protection, such as political opinion or race- need not have changed: Rotao Senkoy v SSHD  EWCA Civ 328;  INLR 555,  Imm AR 399. What matters is that, as presented, a new claim is assessed as having a realistic prospect of success, notwithstanding the failure of a previous claim by the same individual. The ‘had not already been considered’ requirement’ is almost otiose. A claim which raises new facts as regards the claimant will not have had past consideration. A claim where there is no change to the immediate position of the claimant, but surrounding circumstances have changed, will show new facts in relation to the latter, even if not the former.
In general it is important to act without delay. That enables consideration and presentation of representations without external pressures such as the threat of imminent removal, and it helps to anticipate and disarm a claim that delay somehow reflects lack of merit. But in the immediate hours and days after a coup de main such as occurred in Afghanistan, with, for instance, no new government or system of laws in place, there is great uncertainty, and uncertainty is generally unhelpful to the party who bears the burden of proof- the claimant in the fresh claims situation. This may be exacerbated where decision makers have become used to dependence on aids to decision such as Country Policy Information Notes produced by the Home Office, or Country Guidance decisions of the Upper Tribunal. But even today, little more than two days since the change of power, some useful material is beginning to appear, for instance in today’s Guardian (here and here). Concerned bodies- not least the United Nations High Commissioner for Refugees, which issued a non-return advisory today are already providing documentation which will require close consideration in considering any potential fresh claims.
While attention will have to be drawn to new material, it will also be important to review older documentation, for instance records which may show statements made previously in interview or appeal going to the new claim, which may have been relevant earlier, or may only have acquired relevance in the context of the new factual background.
It is also important to remember that not everything has changed. Change in the facts may be extreme but does not create a tabula rasa. It seems likely that some persons who had good claims showing a realistic prospect of success on Friday, have claims which today have only been strengthened- for instance (in a non-exhaustive list) those seeking protection from the Taliban because of past experience and/or because of disagreement with them, those associated with the foreign intervention, cases based on gender, LGBTI+ cases. Others may have claims which on Friday would have struggled more in relation to realistic prospect of success, but which now more clearly meet that standard- for instance, the prospect of internal relocation to Kabul to avoid the Taliban, long an important factor in the domestic Country Guidance, has now disappeared.
At a separate stage, it seems likely that individuals may continue to qualify under article 15(c) of the EU Qualification Directive by reason of ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’ The definition of international or internal armed conflict seems to look to international humanitarian law. What matters for present purposes, is that as the International Criminal Tribunal for the Former Yugoslavia Appeals Chamber held in re Prosecutor v Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, at para 78, ‘International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.’ Conflict for these purposes does not conclude with the end of large scale combat or exchange of territory between parties, and it seems unlikely that article 15(c) is displaced as yet given the absence of any conclusive settlement to the conflict.
In addition, and outside the Background Note in its present version, article 8 of the European Convention and Human Rights and Fundamental Freedoms has been the subject of legislation and policy, including para 276ADE(1)(vi) of the Immigration Rules HC 395, which set out the policy of the Secretary of State in exercising discretionary powers. Para 276ADE(1) is specifically identified as expressing article 8 ECHR which inter alia protects the right to maintain ‘physical and moral integrity’ (see for instance Bensaid v United Kingdom – 44599/98  ECHR 82; 33 EHRR 10, para 34) This provides that leave to remain should be granted, other conditions being met, if there are ‘very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.’ This of course is not a substitute for refugee or other international protection, but the breadth of this, for instance not requiring a Convention reason for a fear of persecution, or the existence of an armed conflict within article 15(c) of the Qualification Directive, may provide a valuable backstop.
In conclusion however, as all those associated with the Refugee Law Clinic have stated, work on fresh claims to protection from refoulement is of vital importance. It calls for access both to the body of knowledge necessary for dealing with protection claims generally and to the law and policy applicable to fresh claims per se. And present circumstances show how this can be tested as the facts change.
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