The decision

Heard at: Field House

MA (Out of time permission application – Removal) Afghanistan [2004] UKIAT 00216
On: 9 July 2004


Date Determination notified:

.......4th Aug 2004.........
Decision reserved


Mr J Barnes (Vice President)
Mr A E Armitage
Mr B D Yates




Secretary of State for the Home Department



1. The appellant was not represented before us and the Secretary of State was represented by Mr J Jones, a Home Office Presenting Officer.

2. The appellant is a citizen of Afghanistan of Pashtun ethnicity who was born on 5 January 1975 in northern Afghanistan. He arrived in the United Kingdom on 3 April 2003 illegally and claimed asylum on the following day. Following submission of a statement of evidence form his application was refused for the reasons set out in a letter dated 19 May 2003. On 21 May 2003 the Secretary of State issued directions for his removal from the United Kingdom as an illegal entrant after refusal of his asylum application. He appealed against that decision on both asylum and human rights grounds and his appeal was heard on 8 August 2003 by Mrs C M Hawden-Beal, an Adjudicator. The appellant did not attend at the hearing and was not represented before her. Neither was the respondent represented. The Adjudicator dismissed the appeal briefly summarising the nature of the appellant's claim at paragraphs 8 to 11 of her determination as follows:

"8. The appellant's claim may be briefly summarised as follows. At the beginning of 2003 his father was shot and killed by a man he traded sheep with. This man never paid the appellant's father for the sheep. The appellant found out about this and got a message to his father's killer that he wanted payment for the sheep. His father's killer was a member of the Hazara tribe and the appellant's family are Pashtun.

9. The appellant said that if the money did not arrive, it was tribal custom for him to avenge himself on his father's murderer. In response, the murderer sent his brother a former Mujaheddin commander, now part of the present government to kill the appellant and his brothers. Having surrounded the appellant's home and opened fire, they found that the appellant [sic] were not at home but were in the mountains tending their sheep. The appellant claims that they badly assaulted their mother instead. He said that his mother was told that they would be back to kill the appellant and his brothers.

10. A neighbour told the appellant what had happened and said that his mother was at his uncle's home. The appellant went there to see if his mother was alright and stayed there for 12 days in hiding until he could arrange to flee having decided that his life was in danger if he stayed in Afghanistan. The appellant said he did not report the attack to the authorities because the Hazaras are now part of the government and none of the authorities would be interested in protecting a Pashtun.

11. The appellant claims that there is nowhere safe in Afghanistan for Pashtuns and he fears being linked erroneously with the Taliban, having been arrested by them three and a half years ago because he had grown his hair long and shaved off his beard. The appellant claims he used the money held by his father's partner and relatives to pay an agent $16,000 to take him out of Afghanistan, via Pakistan, Iran, Turkey, Bulgaria, Hungary and Greece to the United Kingdom arriving on 3 April 2003."

3. The Adjudicator then summarised the reasons for refusal letter at paragraph 12 of the determination as follows:

"The detailed reasons for the respondent's decision are set out in a Home Office letter dated 19 May 2003. Inter alia, the respondent rejected the asylum claim because there are areas of Afghanistan where Pashtuns are not in a minority and where the appellant could reasonably be expected to relocate; the appellant has failed to show that he will be persecuted in the future because of his political opinion; there are authorities in Kabul to whom the appellant could turn to protection [sic] if the need arose; the harm that the appellant would face at the hands of the Hazara does not constitute persecution and finally the claim was rejected because of discrepancies in the appellant's claim seriously undermines his credibility [sic]. The respondent also considered the appellant's claim under the 1950 Human Rights Convention but has rejected it because he was satisfied that there is no risk that the appellant would be tortured or subjected to degrading treatment in Afghanistan or that his right to a private and family life would be breached if returned there."

4. The Adjudicator noted that the notice of appeal was expressed in general terms only and did not address any of the matters raised in the refusal letter and that nothing else of relevance had been submitted thereafter. She concluded on the evidence before her that she was satisfied that the assertions, analyses and conclusions in the respondent's refusal letter were valid and reasonable and reached similar conclusions on that evidence for like reasons.

5. The Adjudicator's determination was promulgated on 3 September 2003 so that the last date for applying for permission to appeal under the provisions of the Immigration and Asylum Appeals (Procedure) Rules 2003 was 19 September 2003. No application for permission to appeal was received within the prescribed time and we have learned today that the appellant was removed by the Secretary of State to Afghanistan on 20 October 2003. This information first came as a result of making enquiries of his representative on record when there was no appearance before the Tribunal. It resulted in a facsimile letter of today's date being sent at 3.16p.m. in which his representatives asked us to note that the respondents deported their above-named client in November 2003 without waiting to receive a decision from the Tribunal in relation to the application for permission to appeal. Mr Jones then made enquiries as to the removal of the appellant and subsequently informed us that he had actually been removed on 20 October 2003 according to information given to him by the caseworker who had been concerned with the file. He could not now, however, say whether this removal was with the consent of the appellant or a forced removal until the relevant file, which was now in storage, could be recovered and inspected.

6. By a strange coincidence the application for permission to appeal is dated 20 October 2003 and it was received by post by the Tribunal with an accompanying letter from the present representatives of the same date. The date stamp for receipt on that letter is not clear but what is quite clear is that the application for permission was not received by the Tribunal until after the appellant had been removed from this country. The appeal proceedings are governed by the Nationality, Immigration and Asylum Act 2002. The appeal to the Adjudicator was under Section 82(1) of that Act and Section 104(1) provides that such an appeal is pending during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned. Section 104(2) provides as follows:

"An appeal under Section 82(1) is not finally determined for the purposes of sub-section 1(b) while a further appeal or application under Section 101(2) –

(a) has been instituted and is not yet finally determined, withdrawn or abandoned, or

(b) may be brought (ignoring the possibility of an appeal out of time with permission).

7. Section 104(4) provides:

"An appeal under Section 82(1) shall be treated as abandoned if the appellant –

(a) is granted leave to enter or remain in the United Kingdom, or

(b) leaves the United Kingdom.

8. It is clear that at the time the appellant was removed on 20 October 2003 there was no pending appeal under Section 104 of the 2002 Act. It cannot therefore be argued that his removal was not lawful and, whether voluntary or forced, in our view Section 104(4) applies and the appeal is statutorily abandoned from the point in time of removal. Although this could not have been known either to the Vice President who dealt with the late application or probably to the solicitors who submitted it, by the time that application for permission to appeal was received in the Tribunal office the appeal had already been abandoned by virtue of Section 104(4) so that there was no jurisdiction in the Tribunal to consider the application. In our judgment dicta in past judgments of the Administrative Court to the effect that unlawful removal will not result in statutory abandonment under earlier similar legislative provisions is irrelevant to the present appeal since, even if involuntary, the removal was lawful at the time it was effected.

9. It follows that the Tribunal has no jurisdiction to hear this appeal and it must be dismissed on grounds of prior abandonment.

10. If we were wrong in this view, however, it would make no difference to the final outcome notwithstanding that permission to appeal was granted out of time under the Procedure Rules. In granting such permission the Vice President concerned said this:

"At the hearing before the Adjudicator on 8 August 2003, there was no appearance by or on behalf of the claimant. The Adjudicator therefore determined the appeal on the documents.

It is asserted in the grounds that the claimant had been dispersed by NASS and that, as a consequence, the Refugee legal Centre at Dover were unable to represent him on account of the distance.

I have noted that, as long ago as 25 June 2003, the RLC informed the Immigration Appellate Authority that the Claimant had moved to Birmingham and that they (the RLC) were attempting to find representation for the claimant in his local area. The claimant therefore had ample time to obtain representation for his hearing on 8 August 2003. The notice of hearing for the hearing on 8 August 2003 was sent to the claimant at his address in Birmingham, as notified in the RLC's letter of 25 June 2003. The claimant was therefore duly served with the notice of hearing.

The explanation for the claimant's absence at the hearing at paragraph 4 of the grounds lacks credibility, and I do not accept it. I am not persuaded that the claimant should have one more opportunity for an oral hearing before an adjudicator.

However, permission to appeal to the Tribunal is granted solely on the ground that the Adjudicator does not appear to have carried out any independent assessment of the claimant's claim. She seems to have simply adopted the assertions in the refusal letter. She did not refer to any objective evidence and did not make any findings of fact.

The claimant should not, however, overestimate the task he faces, given that he would be returned to Kabul and given the security situation in Kabul."

11. It is certainly arguable that the Adjudicator's determination is sustainable given the failure of the appellant to appear or to file any additional evidence to that which was already before the Adjudicator. It is clear from the terms of her decision that she did consider that evidence and we see no error in principle in her disposing of the appeal on the basis that she agrees with and adopts the reasoning of the Secretary of State as set out in his refusal letter.

12. But if we were wrong in this view, taking the appellant's case at its highest and assuming in his favour that he is for the purposes of the appeal a member of a particular social group, namely his family, it might be that he would be able to make out a well-founded fear of persecution or, at any rate, of treatment in breach of his protected Article 3 human rights in his home area. That, however, would avail him nothing if there are other areas of his own country to which he could safely and reasonably move. He will have been returned to Kabul and there is a considerable body of Tribunal jurisprudence to the effect that Kabul is under effective government control and is to be regarded as a safe haven in Afghanistan, offering a sufficiency of protection even if his return became known and those he claims to fear in his home region at some considerable remove became aware of his return. There is no evidence that such relocation would be unduly harsh and we see no basis on such evidence as is before us on which the appellant could succeed in his appeal either under the Refugee Convention or under Article 3 of the European Convention.

13. On whatever basis it is approached, therefore, there is no prospect that the appellant can succeed before us even if there is jurisdiction for us to hear the appeal.

14. For the above reasons, this appeal is dismissed.

J Barnes
Vice President