PA/13825/2017

• Status of case: Unreported
• Hearing date: 18 Jul 2022
• Promulgation date: 18 Aug 2022
• Publication date: 18 Jul 2024
• Last updated on: 18 Jul 2024

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13825/2017


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On the 18th July 2022
On the 18th August 2022



Before

UPPER TRIBUNAL JUDGE KEITH

Between

‘FS’
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court. The reason is because the appeal relates to the appellant’s claimed fear of persecution in his country of origin.

Representation:
For the Appellant: Mr A Bandegani, instructed by Duncan Lewis Solicitors
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of his protection and human rights claim.
2. On a preliminary issue, the appellant’s son, ‘OS’ had previously been added as an interested party, acting by his litigation friend, Sarah Bako, who was also his social worker. The progress of this litigation had previously been delayed pending a decision by the Legal Aid Agency on whether it would provide legal aid for OS to be legally represented. Its decision was to refuse to provide funding for OS. Ms Bako has since left the employment of Wolverhampton Children’s Services and instead, OS was accompanied by a new social worker, whom it is unnecessary to name, but who confirmed that OS did not wish to continue to be an “interested party”, as his legal interests did not diverge from his father, whose appeal he wished to support. I agreed with the parties that OS should cease to be an interested party, although he gave witness evidence in support of his father in the hearing today.
Background
3. The appellant, a citizen of Afghanistan, entered the UK clandestinely on 23rd August 2002. He claimed asylum and his application was refused. He appealed unsuccessfully against that refusal and his appeal was dismissed in a decision of Adjudicator Osborne on 1st March 2005. On 30th December 2005, he was appeal rights exhausted. On 30th November 2006, he made further submissions which were refused without a right of appeal, on 3rd May 2007.
4. On 7th May 2005 and 14th September 2008, he received cautions for common assault.
5. On 5th May 2009, he was convicted of destroying or damaging property and given a conditional discharge.
6. On 11th January 2010 the appellant was granted ILR outside the Immigration Rules. The reasons for the grant are unclear, but the grant of leave is relevant as it was from this point on that the appellant had leave to be in the UK, at least until the deportation order was made against him.
7. On 24th September 2010, the appellant was convicted of battery and given a community order.
8. On 28th October 2011, OS was taken into foster care due to his mother’s alcohol abuse and, the respondent stated, the appellant’s alleged abuse towards OS’s mother.
9. On 20th April 2012, the appellant was convicted of the index offence of wounding with intent to do grievous bodily harm, for which he was sentenced to eight years and three months imprisonment. In the meantime, on 17th May 2012, Birmingham local authority was granted a full care order for OS.
10. A deportation order was made in respect of the appellant on 3rd October 2014. The respondent also refused his human rights claim, certifying it under section 94B of the Nationality, Immigration and Asylum Act 2002, the certification of which was later withdrawn.
11. In February 2015, the appellant submitted a further human rights claim and on 2nd December 2015 he submitted a further asylum claim, which he supplemented with further representations on 8th April 2016 and 21st March 2017.
12. On 29th March 2017, the respondent served the appellant with a notice under section 72 of the Nationality, Immigration and Asylum Act 2002, notifying him that she regarded his crime as particularly serious and that he constituted a danger to the community of the UK.
13. On 12th December 2017, having considered further submissions, the respondent issued the impugned decision, confirming the section 72 certification and refusing the appellant’s protection and human rights claims. In doing so, the respondent referred to the remarks of the sentencing judge, who described the appellant launching a “frenzied”, “sustained” and “repeated” knife attack on his victim, in front of OS, who at the time was aged only six and was said to be badly affected by witnessing the attack. The appellant had provided no response to the presumption that he constituted a danger to the community of the UK. Accordingly, the respondent upheld the section 72 certification.
14. The respondent also referred to the appellant’s claim that he was at risk from family members in Afghanistan as a result of a land dispute and at risk under article 15(c) of the Qualification Directive, if he were returned to Afghanistan. The respondent referred to Adjudicator Osborne’s decision of 2005, in which she had rejected his claim to have a well-founded fear of persecution, on the basis that whilst family members may seek to prevent the appellant from returning to land which he regarded as belonging to him, he would not suffer any adverse treatment amounted to persecution either because of the dispute or any imputed political belief, said to relate to his father having supported the Soviet regime which had ended in the 1980s. Any fear that he had about the consequences of having set fire to his uncle’s shop during a family dispute, many years before, amounted to a fear of prosecution, rather than persecution. The respondent also rejected the article 15(c) claim on the basis that there was no relevant risk in Kabul, to where he could relocate. Moreover, any protection claim was excluded on the basis of the danger he constituted to the community of the UK.
15. The respondent noted his relationship with his son, ‘OS,’ born on 11th April 2005 and that he had lived in the UK for over 15 years, including with ILR (he now has a second son, post-dating the decision). However, the respondent also noted that, as Adjudicator Osborne had considered, the appellant was not living with OS’s mother and OS had been taken into foster care in October 2011 and had been in the full care of the local authority children’s services since May 2012, under whose care he currently remains. Whilst there was some contact between the appellant and OS, OS, was not dependent on the appellant and deportation would not breach the appellant’s article 8 rights.
16. The respondent also considered, by reference to article 3 ECHR, the appellant’s claims of PTSD, depressive disorder, migraine and claims of attempted suicide but concluded that there was a sufficient medical treatment available in Afghanistan and the appellant could be safely removed to that country, with access to necessary medication.
The FtT’s decision
17. On 26th March 2019, First-tier Tribunal Judge Young–Harry upheld the section 72 certification on the basis that there was no new evidence about rehabilitation which was capable of rebutting the respondent’s presumption. As a consequence, he dismissed the appellant’s protection claim. Nevertheless, he considered the substance of the protection claim, taking as his starting point Adjudicator Osborne’s 2005 decision. In particular he noted inconsistencies in the appellant’s account as described in the 2005 decision and that whilst there may have been a land dispute and that the appellant had set fire to his uncle’s shop in Afghanistan, the appellant’s relatives would not have any interest in the appellant on his return. As a result, the FtT attached no weight to the conclusions of experts about the likelihood of land disputes in Afghanistan and the ability of the appellant’s relatives to locate him.
18. The FtT also considered the article 3 ECHR claim and the high threshold to meet the requirement of such a claim, when analysing the expert medical evidence of a number of doctors. The FtT noted that two of the experts referred to the appellant’s uncertain immigration status affecting his mental health, and were his immigration status to be resolved, this would be a significant mitigating factor. His last suicide attempt was in 2015, a number of years previously and the appellant had managed effectively his mental health, which could continue in Afghanistan.
19. The FtT considered the appellant’s rights under article 8 ECHR by reference to section 117C of the 2002 Act. The appellant had parental relationships with two qualifying children, OS, who at the time was 12 years old and a second child aged only one, who resided with his mother. The FtT considered section 55 of the Borders, Citizenship and Immigration Act 2009. The FtT accepted that the children could not be expected to leave the UK and concluded that it would not be unduly harsh for them to remain in the UK without the appellant . Moreover, the FtT concluded that there were not very compelling circumstances over and above the statutory exceptions, noting the seriousness of the appellant’s offence which he had committed in front of OS. The FtT regarded the appellant’s attempts to address his offending behaviour as limited, bearing in mind that he continued to blame his victim for attacking him first.
20. The appellant appealed against the FtT’s decision. Permission was initially refused by the First-tier Tribunal, but the application was renewed, and permission was later granted by Upper Tribunal Judge Pickup on 17th July 2019. At a hearing before this Tribunal on 21st August 2019 (Judge Kopieczek and Deputy Judge Metzer) the parties agreed that the FtT had erred in law, such that the FtT’s judgment had to be set aside, without preserved findings. Remaking was retained in the Upper Tribunal and as a consequence, is now before me.

The issues in this appeal
21. I agreed with the representatives that the issues in remaking the FtT’s decision, are:
(a) Section 72 - whether the appellant has rebutted the presumption under section 72 of the 2002 Act that he constitutes a risk to the community of the UK, notwithstanding the accepted seriousness of his index offence, in the context of his previous offending?
(b) Refugee Convention - If he has rebutted the presumption, whether he has a well-founded fear of persecution on the basis of three characteristics, individually or in combination:
(i) His “westernisation” (see YMKA and Ors (‘westernisation’) Iraq [2022] UKUT 00016 (IAC)) from which political opposition to the Taliban might be imputed, or the appellant’s lack of religious adherence to Islam would be discovered;
(ii) his mental illness, PTSD, (see DH (Particular Social Group: Mental Health) Afghanistan [2020] UKUT 00223 (IAC));
(iii) a “family feud “with family members over land.
(c) Article 3 ECHR – all of the circumstances relied on for the asylum claim are also repeated in respect of Article 3. In addition, whether the appellant’s mental health is of such seriousness and any treatment (or its absence) in Afghanistan would be so severe, in the context of the appellant’s claimed destitution on return, that such return would risk being in breach of article 3 ECHR.
(d) Article 8 ECHR – This is a “very compelling circumstances” case (section 117C (6) of the 2002 Act), so the appellant cannot rely on Exceptions 1 and 2, but the parties accepted that I might consider section 117C(6) by initial reference to those exceptions. In respect of Exception 1, the appellant accepts that he has not lived in the UK lawfully for most of his life, but the remaining questions are:
(i) Whether he is socially and culturally integrated in the UK?
(ii) Whether there are very significant obstacles to his integration in Afghanistan?
(iii) Whether there are very compelling circumstances in respect of the appellant’s private life?
(iv) In respect of Exception 2, it is accepted that he has genuine and subsisting relationships with two British citizen children. He no longer has a relationship with OS’s mother but claims to have a non-resident relationship with the mother of his youngest son. The respondent accepts that the so-called “go scenario” of his current partner and two British citizen children relocating with him to Afghanistan would be unduly harsh but does not accept that the “stay” scenario” (they stay while he is deported) would be unduly harsh. The question is whether the effect the appellant’s deportation would be unduly harsh on his current partner and children?
(v) Are there very compelling circumstances in respect of the appellant’s family life and/or private life, individually or when considered together?
22. For the avoidance of doubt, as the issue of “westernisation”, had not been raised in correspondence previously, (as Mr Bandegani accepted), I canvassed with Mr Tufan whether any issue was taken that this raised a new matter, to which the respondent needed to consent. Mr Tufan said that to the extent there was a new matter the respondent confirmed to consent, and he was content for me to consider the matter.
23. No article 15(c) appeal was pursued.
The hearing before me
24. The appellant provided a bundle which ran to some 1,120 pages. I mention the length of the bundle because it comprises a substantial amount of historic documentation which, whilst it provides the context and history of the appellant’s claims, does not in material parts represent his current circumstances. By way of specific example, I was conscious that I should consider the appellant’s current mental health in the context of his article 3 claim. In addition, whilst the appellant’s son, OS had provided earlier witness statements a number of years before, he had since provided a more recent witness statement. A third specific example is in relation to the respondent’s rationale for not accepting that the appellant had a well-founded fear of persecution in 2017, which substantially predated the Taliban’s takeover of Afghanistan in August 2021. Whilst the respondent maintained that the claimed fear of persecution was not well-founded, nevertheless, even on the respondent’s case, circumstances had developed since her decision and therefore the more recent country evidence as well as her Country Policy and Information Notes or “CPIN”s should apply as opposed to country evidence adduced many years previously before the Taliban takeover.
25. Therefore, whilst I have referred to documents to which my attention was specifically drawn and other documents which I considered relevant, I indicated to the representatives that I would not consider all of the 1,120 pages, as many of them were plainly no longer relevant.
26. In terms of witness evidence, I heard witness evidence from the appellant and his son, OS. Both gave oral evidence on which they were cross-examined. I should say from the outset that I was conscious that OS is a minor, aged 17 and I therefore treated him as a vulnerable witness. In any event, I had no reason to doubt his credibility and he appeared as a straightforward and honest witness, clearly expressing his wish for his father to remain the UK. He gave evidence accompanied by a social worker from Wolverhampton Children’s Services. At one stage, when the appellant gave evidence in relation to the index offence, OS was, with the agreement of his social worker, absent but for the remainder of the hearing, the social worker indicated no concerns about OS’s attendance during the hearing.
27. I do not recite the submissions and evidence in full, except to provide a summary of each party’s case and then go on in the findings later on in these reasons to refer to the respective party’s submissions and any dispute of fact where it is necessary to do so. Where I refer to a page number, it is contained in the appellant’s bundle.
The appellant’s case
28. Mr Bandegani relied upon a skeleton argument for this hearing and also adduced before the FtT. Mr Bandegani relied upon the following relevant facts:
(i) The Taliban is in control of the whole of Afghanistan.
(ii) The appellant is not a practising Muslim (see §3 of the appellant’s most recent witness statement, page [A1]).
(iii) The appellant has been living in the UK for 20 years, is fully integrated here and has adopted western attitudes and mores (see §§3 and 5 of his statement, page [A1]).
(iv) There is accepted violence towards those transgressing Islamic mores as interpreted by the Taliban (see §3 of the same statement).
(v) The appellant has no family support, accommodation, or contacts in Afghanistan and no money with which to support himself in there (see his witness statement at §5).
(vi) The appellant has PTSD and severe depression.
29. In respect of the section 72 certificate, the appellant’s evidence was sufficient to rebut the presumption that he constituted a risk to the community of the UK. In particular, the expert psychological assessment of Dr Samantha Baker dated 17th August 2020, §14.1.2, page [D20], assessed the risk of the worse scenario of the appellant being significantly provoked, and being overwhelmed by his emotions to the point of losing control, which has occurred once in his previous history, as low. In addition, the appellant’s offender manager, had, in correspondence of 26th January 2021 (page [D1]), confirmed that the appellant had completed various training programmes and had been assessed as gaining significant knowledge on how his offending behaviour had impacted on his victim and the wider community and as a consequence, on completion of his licence on 30th January 2020, the risk had been reduced to low. She also confirmed that the appellant had been living at his present address for a lengthy period of time without any concerns, at the end of his licence period. Put into context, the OASys Report, which was now nearly six years old, being dated 18th October 2016, page [D66] onwards, which had assessed the appellant as presenting a risk in the community of a medium level of serious harm to children, members of the public and known adults, did not reflect current circumstances. Even in 2016, the report made clear, in the definition of the types of harm, at page [D95], that there were identifiable indicators of risk of serious harm, and the offender had the potential to cause serious harm, but he was unlikely to do so unless there was a change in circumstances. The appellant had not in any way sought to excuse his behaviour when he had explained in oral evidence that he was, in one sense, just as much a victim as the person he had stabbed. This was because of his traumatic upbringing in Afghanistan and also the injuries that he himself had suffered during the altercation. In addition, the appellant had not offended since the index offence committed on 26th October 2011, although, as must be appreciated, the appellant was subsequently in detention for a long period. He had had a conditional release date of 30th October 2015 but was only released, with tagging restrictions, on 15th January 2016.
30. In respect of the appellant’s refugee claim, the appellant relied on the objective evidence not only his own expert evidence but also the respondent’s own CPIN – Afghanistan: Fear of the Taliban Version 3.0 April 2022, §2.4.9, which refers to risk of those perceived as having “westernised”. This risk was consistent with the evidence of Tim Foxley, who had produced an expert report starting at page [B1]. Tim Foxley, in his expert report on the country situation in Afghanistan, had referred to the risks as only increasing since the Taliban had gained power (see §§62 and 63 at page [B34]). The Taliban were imposing their strict moral codes and adherence to Sharia law with increasing use of checkpoints. If the appellant were detained, noting that the UK is still very much considered an enemy country, he would be at greater risk of adverse attention. The Taliban could identify the appellant through his language, clothing, documents on his person or mobile phone, or his body tattoos. The adverse attention could range from questioning, legal detention, human rights abuses, torture and even death. The change to the cosmopolitan environment in Kabul had been rapid since the Taliban takeover and any westernised mannerisms, lack of linguistic fluency or convincing local knowledge and background could mark him out for adverse attention. As per the authority of YMKA, the appellant could well be perceived as having an imputed political opinion contrary to the Taliban regime or a lack of adherence to the Islamic faith as interpreted by the Taliban authorities. The appellant’s evidence had been clear that he was not a practising Muslim on a daily basis. He might occasionally attend mosque for the festivals of Eid but did not pray five times a day and even occasionally read non-Muslim texts such as the Bible. The fact that he was not an adherent of Islam would then be reflected on his risk to return. If he returned to Afghanistan and carried on the way that he lives his lifestyle in the UK, he would risk being killed. If he did not, then this Tribunal had to ask why not. If that were because of fear of persecution, then his protection claim should succeed. If instead he were merely indifferent to any secular identity he had and would adopt the clothing and customs of the Afghan population, indifference alone would not be sufficient, as per the authority of RT (Zimbabwe) v SSHD [2012] UKSC 38.
31. In respect of the other protected characteristics relied upon, Mr Bandegani accepted that Adjudicator Osborne’s decision should be my starting point, noting that it was trite that this was not in any way a straitjacket. Taking that decision as a starting point, Judge Osborne had accepted the core of the claim at §§41, 43 and 47, in particular, the fact of a land dispute, with the remainder of the claim not being seriously disputed, in particular whether as a consequence he would have a well-founded fear of persecution. Moreover, since then, there had been a wealth of additional evidence. Dr Cohen, in her report dated 30th November 2016 at page [C72] onwards, had made an assessment of scarring injuries at §56, page [C88] where she had examined scarring typical of the attribution of repeated head injuries from assault with blunt objects. Her assessment had been carried out in accordance with the Istanbul Protocol and there was no evidence that the scarring had been fabricated. Dr Cohen had also referred to the appellant’s psychological condition as being consistent with typical reactions to extreme stress within the appellant’s social and cultural context.
32. In respect of the appellant’s PTSD, this had been clinically diagnosed by Dr Cohen at §59 in accordance with the ICD-10 criteria, with further updating evidence of Dr Wilson. Neither of these experts’ expertise or credentials had been properly challenged by the respondent.
33. Whilst the respondent attempted to distinguish the authority of DH, on the basis that the appellant would not display florid symptoms, for example associated with a condition like psychosis, there was a real risk that the appellant would kill himself on return. Moreover, even if I were to conclude that he could access medication or patient care, such medications placed him at real risk of serious harm through the prescription of poisonous fake medicine or through physical ill-treatment by healthcare professionals such as restraints, chains or injections, which could also violate article 3.
34. Dr Wilson’s report was also consistent with the report of Dr Ayesha Ahmad dated 10th January 2021 at page [B75] onwards, who provided a country expert’s report from a perspective of expertise in global health. She suggested at §9.4 that the practical availability of psychological support that the appellant required was unlikely to be available in Afghanistan. He required long-term psychotherapeutic treatment as an outpatient and there was no evidence of any such facility in Afghanistan, notwithstanding the large numbers of Afghan people with PTSD. This was also consistent with the country guidance case of AS (Safety of Kabul) Afghanistan (CG) [2020] UKUT 130 (IAC), which confirmed the inadequacy of psychiatric services in Afghanistan. At §83 of that authority, public healthcare was described as of poor quality and psychiatric services as inadequate (§83) with little understanding of mental health and with people with mental health issues stigmatised and socially ostracised (§83). That was even before the Taliban takeover in August 2021. Following that, as Tim Foxley confirmed at §36, page [B19], all aspects of healthcare in Afghanistan were in a dire state and were likely to decline further from an already low base. Mental health resources were correspondingly limited, and the appellant was very unlikely to be able to access any of the facilities he may need or to have benefited from in the UK. Medical products were in short supply or expensive or both (§53, page [B29]). Moreover, there was a risk not only that the appellant would not be able to obtain the treatment that he needed, but also that any treatment he did receive could positively harm him. Mr Foxley provided a view that the Taliban’s approach to mental health would most certainly be harsh, and intolerant based on ignorance and denial (§40, page [B21]) and many cases of counterfeit and unproven medicines being sold in the country which was unlikely to worsen (§53, page [B30]). Mr Foxley opined that the appellant could get into situations where he would be restrained, punished, imprisoned or abused simply because no-one in the community knew how to treat or recognise his difficulties. The shackling and imprisonment globally of mental health patients was widely recognised as per the Human Rights Watch Report at §60, page [B33].
35. All of this was compounded by the risk of destitution which linked in with the appellant’s protection claim but also a claim under article 3 ECHR. In particular, the country guidance case of AS suggested that there was a real risk that appellant would not be able to re-establish himself in Afghanistan, would become destitute and unable to avoid inhuman and degrading treatment, bearing in mind his personal characteristics. Work in the informal sector would depend on his capability to undertake such work in the light of his age, health, physical capabilities and other factors and whether he could present himself in a way that would attract employers who would frequently be selecting individuals from a pool of men bringing their own tools to congregate at known meeting points. This was all in the context that the appellant had no network in Kabul or Afghanistan, had never worked in the UK even though he was now literate and had had some building training whilst in prison. As §234 of AS confirmed, without connections, stable and secure employment would be virtually impossible to obtain. It was far from certain that he would be able to obtain his Tazkera identification document, which would prevent him from accessing many government services or obtaining formal employment or access to accommodation, bearing in mind that three quarters of Afghans living in Kabul lived in informal settlements which had very limited sanitation, drainage or access to clean drinking water (§231 of AS). Drawing this together, Tim Foxley had opined that Kabul would be a highly stressful and difficult environment for the appellant with risks of destitution, unemployment, and exploitation in the absence of any secure and dependable family support network (§83, page [B46]). It would expose him to a risk of exploitation and trafficking and possibly recruitment to groups such as Islamic State and predatory exploiters whilst looking for work. Any mental health issues would exacerbate the risks of ostracism, destitution and exploitation and make it difficult for the appellant to negotiate his way through a very adverse security environment. In these circumstances, the appellant’s mental health would impact on his ability to obtain access to work and accommodation, which in turn would worsen his mental health.
36. In response to the respondent’s purported criticism of the medical experts, in particular by reference to the authority of HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC), whilst the respondent was now taking issue with Dr Wilson’s assessment using the PHQ-9 (Patient Health Questionnaire) test which the Upper Tribunal in HA had been concerned was not a diagnostic tool, and in circumstances where the same Tribunal had stressed the importance of GPs’ records, in this case, there had been no challenge to the expertise or the credentials of any of the witnesses. There had been no notice of the challenge to the diagnosis of PTSD, whether that was by reference to PHQ-9 or otherwise. The assessment was on a number of criteria, including clinical judgment, with an overall assessment so that the authority of HA did not take the respondent’s case anywhere.
37. In respect of article 8, the focus was on the appellant’s relationship with his children, namely OS, now aged 17 and a younger son having been born in 2018. OS gave evidence and clearly had a strong family life with the appellant as confirmed by OS and his social worker, who described the appellant as the son’s most significant closest family member in the UK, with minimal contact with between OS and his mother. The social worker had expressed the view that the appellant’s deportation would have significant negative impact on OS’s development as he would be at risk of losing his family ties, which could impact on his identity. There was, in the social worker’s view, no-one who could replace the appellant. In the circumstances, not only was it unduly harsh but notwithstanding the seriousness of the appellant’s conviction, there were very compelling circumstances to this case. The same applied in respect of the appellant’s private life, noting the significant barriers to the appellant’s integration into Afghanistan and the attendant risks. Put simply, if the appellant succeeded in his protection and article 3 claims it was inevitable that his article 8 claim would succeed in respect of right to respect for his private life.
The respondent’s case
38. Mr Tufan relied upon the respondent’s skeleton argument. In respect of certification under section 72 of the 2002 Act, there was no question that the appellant had committed a particularly serious crime, as reflected in the prison sentence of eight years and three months. He had attempted to minimise his responsibility for the offence at §8 of his most recent witness statement (page [A2]) where he had referred to the person whom he had repeatedly stabbed as the “victim is what the Home Office always call him”, and the appellant accused the victim of being racist towards him. He had attempted to minimise the impact on the victim, saying that he had apologised to his victim and his victim had apologised to him and had shaken his hand.
39. With regard to the protection claim, in respect of the family feud, the starting point was Adjudicator Osborne’s decision. There were inconsistencies between the appellant’s account before Adjudicator Osborne and his more recent evidence. For example, before Judge Osborne, he had claimed that a property had been left half to his father and with the other half shared equally between stepbrothers but a 2019 statement, he had claimed that the stepbrothers did not inherit any of the land and this was the cause of the dispute. In light of the inconsistencies and the appellant’s general core credibility it was not accepted there was a family dispute. Even Tim Foxley in his report at §29, page [B15], had said that it was difficult to give a confident answer about a risk arising as a result of a land dispute, based on events that had taken place over 20 years ago.
40. Moreover, the appellant’s alleged persecutors, including his step-uncle, had previously been linked to the Mujahideen, which were a rival faction to the Taliban and had fled when the Taliban were previously in power, as per the appellant’s answer to question 14 of the asylum interview at page [A142]. In addition, Tim Foxley cautioned at §32, page [B16] against cliched assumptions about Afghan culture relating to revenge, as the basis for any family feud.
41. In respect of risk from the Taliban based on westernisation, the appellant’s claim not to be a Muslim was at odds with what he had informed Dr Wilson, as confirmed at §74.5 of her report (page [C17]). She had referred to the appellant concentrating on things such as reading the Koran, in the context of assessing his ability to concentrate.
42. Moreover, Tim Foxley had noted at §3 of his report, in respect of the general situation in Afghanistan (page [B2]) that it was hard to give a clear assessment of the state of the security situation in Kabul or elsewhere as reliable information was now extremely limited. Mr Foxley’s comments about travel between Kabul and his home city of Ghazni were generalised in nature and were no more than speculation.
43. In respect of article 3 and the appellant’s mental ill health, the test under article 3 was a high one. Even the most recent of the appellant’s medical reports was now over 18 months old and the GP records were from 2018. They are of limited assistance in establishing that the appellant is a seriously ill person or that removal would lead to a serious, rapid and irreversible decline in his health. Dr Wilson’s assessment had been based on one interview via video-link without evidence from the appellant’s GP, which was critical to the full picture. There were also issues with the account that the appellant had given to Dr Wilson on which she had based her report, in particular his claim that he had been taken by force by his uncle from his mother. In light of the appellant’s credibility issues, to base conclusions about his mental health on a disputed account, seriously undermined the conclusions of the medical report. It was also clear that the assessment of PTSD was based in part on the PHQ-9 report in respect of depression, when such a test was not diagnostic. Moreover, in her own conclusions at §83.1.2.1, page [C27], Dr Wilson was unable to confirm that there would be a serious, rapid and irreversible decline in the appellant’s mental ill-heath, were he not to have access to treatment.
44. With regard to article 8 ECHR and section 117C of the Nationality, Immigration and Asylum Act 2002, whilst the respondent accepted that the appellant had a family relationship with his children, he was not resident with either. Whilst his removal would have an adverse effect on their relationship, once again, the test was a high one. Weighed against their best interests was the serious nature of his offence, which had resulted in a very substantial sentence. There were not very compelling circumstances in respect of the appellant’s family life. In respect of the appellant’s private life, with regard to re-establishing himself in Afghanistan, the appellant had told Dr Wilson that he had some support from friends in the UK and there was no reason they might be unwilling to offer him assistance, were he returned to Afghanistan.
45. Finally, a weak article 3 claim was not the basis of an article 8 claim as per the authority of SL (St Lucia) v SSHD [2018] EWCA Civ 1894. The appellant had lived for most of his life in Afghanistan, spoke Dari and notwithstanding the challenges to returning to life in Afghanistan, he had not established that there were very compelling circumstances in respect of his private life.
The Law
Asylum protection
46. I must consider first whether the appellant is excluded from protection as a result of section 72(10) of the 2002 Act, which would oblige me to dismiss the appellant’s claim:
“Section 72 Serious criminal
(1)This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).
(5A)A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.
(6)A presumption under subsection that a person constitutes a danger to the community is rebuttable by that person.
(10)The Tribunal or Commission hearing the appeal—
(a) must begin substantive deliberation on the appeal by considering the certificate, and
(b) if in agreement that a presumption under subsection (5A) applies (having given the appellant an opportunity for rebuttal) must dismiss the appeal…
(10A) Subsection (10) also applies in relation to the Upper Tribunal when it acts under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.”
47. The appellant accepts that he was convicted of a particularly serious crime. He argues that he has rebutted the presumption that he still constitutes a danger to the community of the UK.
48. Assuming that he rebuts the presumption, paragraph 334 of the Immigration Rules states that the appellant will be granted asylum if the provisions of that paragraph apply. The burden of proof rests on the appellant to satisfy me that he falls within the definition of a refugee in Regulation 2 of the Qualification Regulations, as read with article 1(A) of the Refugee Convention. In essence, the appellant has to show that that there are substantial grounds for believing that he is outside Afghanistan by reason of a well-founded fear of persecution for a Refugee Convention reason and is unable or unwilling, owing to such fear, to avail himself of the protection of that country. In particular, I consider the authority of YMKA in respect of Westernisation and for the sake of brevity, cite the relevant headnotes:
“The Refugee Convention does not offer protection from social conservatism per se. There is no protected right to enjoy a socially liberal lifestyle.
The Convention may however be engaged where
(a) a 'westernised' lifestyle reflects a protected characteristic such as political opinion or religious belief; or
(b) where there is a real risk that the individual concerned would be unable to mask his westernisation, and where actors of persecution would therefore impute such protected characteristics to him.”
49. In respect of article 3, I remind myself of the recent authority of AM (Art 3; health cases) Zimbabwe [2022] UKUT 00131 (IAC). I set out the headnotes below:
“1. In Article 3 health cases two questions in relation to the initial threshold test emerge from the recent authorities of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17 and Savran v Denmark (application no. 57467/15):
(1) Has the person (P) discharged the burden of establishing that he or she is ‘a seriously ill person’?
(2) Has P adduced evidence ‘capable of demonstrating’ that ‘substantial grounds have been shown for believing’ that as ‘a seriously ill person’, he or she ‘would face a real risk’:
[i] ‘on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment,
[ii] of being exposed
[a] to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering, or
[b] to a significant reduction in life expectancy’?
2. The first question is relatively straightforward issue and will generally require clear and cogent medical evidence from treating physicians in the UK.
3. The second question is multi-layered. In relation to (2)[ii][a] above, it is insufficient for P to merely establish that his or her condition will worsen upon removal or that there would be serious and detrimental effects. What is required is ‘intense suffering’. The nature and extent of the evidence that is necessary will depend on the particular facts of the case. Generally speaking, whilst medical experts based in the UK may be able to assist in this assessment, many cases are likely to turn on the availability of and access to treatment in the receiving state. Such evidence is more likely to be found in reports by reputable organisations and/or clinicians and/or country experts with contemporary knowledge of or expertise in medical treatment and related country conditions in the receiving state. Clinicians directly involved in providing relevant treatment and services in the country of return and with knowledge of treatment options in the public and private sectors, are likely to be particularly helpful.
4. It is only after the threshold test has been met and thus Article 3 is applicable, that the returning state's obligations summarised at [130] of Savran become of relevance – see [135] of Savran.”
50. I also bear in mind the recent guidance in HA (expert evidence; mental health) Sri Lanka [2022] UKUT 00111 (IAC) in relation to evidence in relation to mental health.
51. In relation to article 8, as the appellant is a “foreign criminal” as defined in section 117D of the 2002 Act, section 117C applies, in addition to section 117B:  
“PART 5A 
Article 8 of the ECHR: public interest considerations 
117A Application of this Part 
(1)This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— 
(a) breaches a person’s right to respect for private and family life under Article 8, and 
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard—
(a) in all cases, to the considerations listed in section 117B, and 
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. 
(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). 
117B Article 8: public interest considerations applicable in all cases 
(1) The maintenance of effective immigration controls is in the public interest. 
(2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English— 
(a) are less of a burden on taxpayers, and 
(b) are better able to integrate into society. 
(3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— 
(a) are not a burden on taxpayers, and 
(b) are better able to integrate into society. 
(4) Little weight should be given to— 
(a) a private life, or 
(b) a relationship formed with a qualifying partner, 
that is established by a person at a time when the person is in the United Kingdom unlawfully. 
(5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. 
(6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where— 
(a) the person has a genuine and subsisting parental relationship with a qualifying child, and 
(b) it would not be reasonable to expect the child to leave the United Kingdom. 
117C Article 8: additional considerations in cases involving foreign criminals 
(1) The deportation of foreign criminals is in the public interest. 
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal. 
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies. 
(4) Exception 1 applies where— 
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. 
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh. 
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
52. A person must meet an increasing scale of hurdles, to succeed in a human rights appeal, ranging from a person who is not liable to deportation at all, who may succeed on the basis of section 117B(6), to the most significant hurdle for foreign criminals who have been sentenced to a period of imprisonment of four years or more (which applies to this appellant, of “very compelling circumstances” (section 117C(6)). Even though he cannot rely on ‘Exceptions 1 or 2’, I can nevertheless consider his circumstances through the initial lens of parts of those exceptions when considering “very compelling circumstances”.   
53. Bearing in mind the case of HA (Iraq), RA (Iraq) and AA (Nigeria) v SSHD [2022] UKSC 22, when considering “unduly harsh”, I do not apply any notion of exceptionality or an objectively measurable baseline of the “ordinary” effects of deportation on “any” child. There is no notional “comparator” that can be applied and every assessment of “unduly harsh” must have as its focus the effects on the specific relevant children and spouse, considering the best interests of the children. The wording “unduly harsh” reflects section 117C(1), that the deportation of foreign criminals is in the very strong public interest, so it does not start off as a neutral evaluation, but in the context of that public interest, the focus remains on the effects on the children and partner. Unduly harsh effects may be commonplace and are highly fact-specific, particularly as they centre on the effects on individual children, including (but only as examples and not as a ‘tick-list’) their ages; educational and emotional needs; and the role played by the potential deportee parent.    
54. In the assessment of “very compelling circumstances”, which reflects the very strong public interest in deportation, such a public interest still has a moveable quality, i.e. the public interest may not have the same weight for all serious foreign criminals; “public revulsion” is too emotive a concept to be weighed in the assessment of such public interest, but the public interest in deterrence remains a relevant factor; and at its heart, it is helpful to assess very compelling circumstances through the “balance-sheet” approach, weighing on the one hand, the factors in the appellant’s favour, holistically, against the very strong (but not immovable) public interest in deportation. Factors which can be relevant (although of varying weights and which again are examples, and not an exhaustive list) include: the nature of the offence (for example, whether it includes an element of violence), its seriousness and the appellant’s role in the offence, as often reflected in the sentencing Judge’s remarks; the extent of rehabilitation and likelihood of reoffending; the depth of the appellant’s integration in the UK and quality of his relations with his partner and children; whether his relationship could be sustained after his removal; the need to promote the children’s welfare; and the obstacles to the appellant’s integration in Afghanistan (noting that this is a broad evaluative assessment, with the concept of being “insider” meaning the appellant having enough of an understanding of how Afghanistan works to be able to participate in it, be accepted within it, operate day-to-day and build up a network of relationships there) (see §§50 to 71 of HA (Iraq)).
55. Even if there are very compelling circumstances, I then need to consider the wider section 117B factors.    
Findings of fact
56. As I have already indicated, given the extent of the documentation, running to 1,120 pages, I refer to only a fraction of the relevant evidence and I have not considered all of the evidence except either where it has been referred to explicitly by the parties or alternatively, I have regarded it as appropriate to do so. To assist the parties’ representatives in preparation of future cases, it would assist if where, as here, the case has progressed over many years, there is instead a narrower core bundle of up-to-date documents rather than extensive previous documentation.
Section 72
57. Notwithstanding that caveat, much of the facts were in fact not disputed. Where there is dispute is in terms of the effects of those facts on the eventual conclusions I reach. An example in point is the question of certification under section 72. The parties accept that the appellant’s offence was a particularly serious crime. It was one of violence involving a “frenzied” knife attack (as described by the sentencing judge) on the appellant’s victim. The seriousness of the offence is reflected by the term of imprisonment and the sentencing judge’s remarks. The appellant had committed the offence in front of his own son. The judge found that he had come into the shop with a knife and “there was therefore a clear degree of premeditation at that stage.” (Page [A36]). The judge reflected that the appellant may have suffered a degree of provocation albeit which was outweighed by the appellant’s culpability.
58. The OASys Report is of some age, dated 6th July 2016, following the appellant’s release from prison, after his index offence. The one adverse comment about the appellant’s behaviour while in prison was that he had been confrontational with a member of educational staff whom he felt was ignoring him and had been given a warning (page [D74]). There is nevertheless no evidence of any adjudications whilst in prison.
59. The OASys assessor referred to the appellant’s previous offences including two cautions for common assault against his ex-partner in 2005 and 2008 (page [D67]), a conviction for criminal damage in 2009 which related to destroying his former partner’s SIM card and in 2010 for battery, where he asserted that the victim of his battery was somebody who had been racist towards him. The OASys manager was conscious that although the appellant accepted responsibility for his offences, he had a tendency to place partial blame upon victims for attacking him first or to give other justifications, for example his own sense of victimisation or injustices towards him, particularly on grounds of his race (page [D101]). This is reflected in the appellant’s oral evidence before me where he once again recited the context of being attacked by a gang of people during the index offence, and he had only sought to defend himself. He denied that he had any premeditation and returned to the fight. He also claimed that in relation to the battery offence, he was merely defending himself. I accept that there is a pattern of seeking to blame others for what he regards as injustices or his own victimisation. There is a history of impulsive behaviour, lack of consequential thinking (page [D97]) and use of aggression, when the appellant is challenged or unhappy about something (page [D79]), with convictions for offences of violence against his former partner, which are relevant to his offending behaviour and risk of harm (page [D72]).
60. That being said, the OASsys assessor had no concerns about the appellant’s choices in terms of lifestyle and associates (page [D74]). The OASys assessor also referred to the appellant taking prescribed medication for depression as a positive factor (page [D77]); his appearing to show genuine remorse (page [D78]); and his compliance with his licence and supervision conditions (page [D79]). The appellant’s Offender Violence Predictor or “OVP” score over two years was 26%, and the risk of violent re-offending was low. His Offender General Predictor (“OGP”) score, indicated a probability of proven non-violent re-offending over two years of 26%. As Mr Tufan had already identified, at page [D95], the risk of serious harm in the community to children, the public and known adults was medium, but with the caveat, as Mr Bandegani pointed out, as to how that risk was defined, namely that it was unlikely to occur unless there was a change of circumstances such as loss of accommodation, drug or alcohol abuse.
61. I also accept Mr Bandegani’s submission that the OASys report cannot be considered in isolation, given its age, but I do not discount its contents entirely. More recently, the appellant’s probation worker, Ms Nash, had confirmed in January 2022 that the appellant had been on licence during his probation from 18th January 2016 until his licence ended on 30th January 2020. As with all offender-managed cases, his risk flags were reassessed and, in his case, removed. His compliance and engagement were assessed as good, and he had not accrued any warning letters. He had completed training courses and in his probation manager’s view, he had gained significant knowledge of the impact of his offending and an ability to use thinking skills to consider the consequences of his actions. On completion of his licence, his risk was decreased further to low given his continued compliance, without further offending, and stable accommodation. Ms Nash’s report was consistent with the report of the clinical psychologist, Dr Baker, starting at page [D2].
62. Dr Baker confirmed her awareness of her professional duties as an independent expert witness. There was no challenge to her expertise or the report itself. Dr Baker considered the appellant’s offending history, including the lack of adjudications in prison. She assessed his risk of future violence in accordance with the Historical, Clinical and Risk 20 item Version 3 or “HCR-20 V3” assessment tool, grouped into past risk, present and future assessment of risks. She considered, as predisposing risk factors, the appellant’s significant childhood trauma in Afghanistan, noting that it was not possible to verify all the information but also the scarring, which in the opinion of a previous medical expert, was consistent with his narrative. She considered his lack of education and consequential social isolation (pages [D15] and [D16]). She considered what she termed “precipitating” and “perpetuating” factors at §12, page [D16], including the psychological difficulties already referred to and the ongoing stress of an unresolved deportation appeal, together with frequent debilitating headaches, which impacted on his quality of life and stress levels, including poor sleep.
63. In terms of “protective” factors, Dr Baker assessed at page [D17] his completion of restorative justice programmes, compliance with supervision and an absence of any violent behaviour since the index offence. The main protective factors were his relations with his two sons, with whom he had good relationships. It was in the context of that balanced scenario that Dr Baker did not rule out a future risk of violence and indicated at §14, page [D19], that it was most likely to be triggered by entering into arguments with others, when he perceived he had been insulted and/or humiliated. The risk was most likely to occur if such encounters escalated to physical violence and/or in the presence of children which could result in his feeling embarrassed or humiliated. Any consumption of alcohol could further disinhibit him, with the most likely victims being adult males and could result in violence including hitting, punching and, were the opportunity to present itself, using a weapon, such as a knife, as had occurred previously.
64. However, Dr Baker was clear that this worst-case scenario of the use of a knife had only occurred once in the appellant’s history in the context of a specific set of circumstances and the risk of that scenario was low. Having summarised the factors that might increase or decrease risk at §§14.2 and 14.3 (page [D20]), Dr Baker did not then go on to make an overall assessment as to risk more generally, other than the low risk of the serious incident outlined. This results in there being a potential gap in the evidence, in the sense that whilst the risk of the worst-case scenario is assessed by Dr Baker as being low, a more general risk to the community of the UK may still remain.
65. Dr Baker considered how the risk of violence might be reduced, which included medical treatment for PTSD, in order to attempt to resolve the most distressing aspects of his previous trauma. She considered that cognitive behavioural therapy might also seek to address his feelings of worthlessness and low mood, as well as change his cognitive bias about hostile intentions of others and the world being a dangerous place.
66. I am acutely aware that the appellant has not committed a further offence since the index offence in 2011. He has no lifestyle choices that might otherwise increase the risk of his offending. The OGR scores, as already identified in 2016, were low. While her report was a singe page letter and not an OASys report, Ms Nash, a probation officer, assessed the risk to the public as low, in January 2021, in light of his compliance with his probation conditions and engagement in rehabilitation courses (page [D1]). However, even if, as Dr Baker opined, such a worst-case scenario of knife-related violence is low, that risk remains. Dr Baker’s report, which was far more detailed than Ms Nash’s letter, did not go so far as to say that the general risk of less violent offending was low. I do not criticise Ms Nash’s letter, but the fact that Dr Baker does not go so far, is relevant. This is because the appellant has a history of previous offences of less serious domestic violence involving a former partner (two cautions and a conviction for criminal damage) and battery in respect of a relative of his former partner in 2010. These were all in a period of time resulting in a pattern of escalating seriousness from 2005, the initial caution, up to the index offence in 2011, since when the appellant has not offended.
67. The difficulty, and ultimately why I conclude that the appellant has not rebutted the presumption, is that even on the appellant’s own account, he is not undergoing any counselling in respect of his PTSD. This is not because it has not been offered, or might be available at a later date, but because he does not wish to engage in it because he regards talking about traumatic matters as upsetting for him. Dr Baker makes clear that the appellant’s PTSD is the context of his offending and that treatment for his mental health might decrease risk, to help him regulate his emotions (page [D20]). The same treatment would mitigate his perceptions of the hostility of the world in general, in order to move on with his life. There remains a risk, while he does not engage with treatment, that he has not moved on.
Section 72 - findings
68. In conclusion, whilst the worst-case scenario is low, that does not in my view detract from the continuing risk of offences involving violence where the materially contributing factor of PTSD (identified as a “predisposing” and “perpetuating” factor) remains unresolved. I am therefore not satisfied on the evidence before me that the appellant has demonstrated that he has rebutted the presumption under section 72, even if the more likely risk is not of an offence of violence as serious as the index offence. I also bear in mind that for the “worst case” scenario, while the risk is low, the impact of such a scenario, in the event that it occurs, is potentially catastrophic.
Findings on well-founded fear of persecution
69. However, for completeness, in any event, I consider the appellant’s claim of fears of persecution based on the alleged family feud; his PTSD; and his “westernisation”. As Mr Bandegani rightly accepted, I must take as my starting point Adjudicator Osborne’s decision. A broad outline of that decision, which begins at page [A125], is of the appellant’s father being a general in the regime of the former President Najibullah, as a result of which he faced certain ostracism from family members who regarded the appellant’s father as what was termed a “kuffar” on the basis that he opposed the Mujahideen insurgents. Adjudicator Osborne found that after the Soviet regime had left Afghanistan in 1989, the appellant had been sent to live with his uncle, who had mistreated him. The appellant’s father was then killed in 1989 in clashes with the Mujahideen, at which time the appellant then lived with his mother and sister until 1999 when his mother died. His sister married and moved away in 2001, leaving him with his uncle. There was then an incident in April 2002 when he had returned to his former family home to visit his father’s grave and four people whom he believed were coming to kill him, whom he believed were his paternal cousins and relatives of his uncle, caused him to flee. His sister encouraged him to take revenge and he then went to his uncle’s business premises and set it alight. He then fled Afghanistan with his sister’s help, who funded his departure by selling an orchard. Crucially, at §29, page [A130], the Adjudicator made clear that at no stage had the appellant based his claim upon physical ill-treatment by his uncle. The claim was on the basis of future ill-treatment, were he returned to Afghanistan. In particular, at §34, the Adjudicator regarded as important the fact that the four people who had approached the appellant could not be identified and had never actually attacked him. The only motive which he could ascribe to these people were that they wished him to leave the land so they could take it over. Contrary to Mr Bandegani’s assertions, the Adjudicator did make adverse credibility findings, notably at §37, where she noted that he had failed to mention a fear that the brother of one of his potential attackers had been killed in battle between the Mujahideen and communist forces and at §39, he had not mentioned in oral evidence a possible dispute over ownership of land.
70. The Adjudicator accepted at §40 that the appellant moved around from place to place, after the death of his parents, which would have been unsettling and distressing and that he simply wished to return to his land. She also accepted at §41 that his cousins may well have decided to try and prevent him from returning to the family land but found that nothing amounting to adverse treatment had occurred to him. She accepted that he had set fire to his uncle’s property (at §§45 and 46, pages [A132] to [133]). However, at §47, she also concluded that any fear he had of repercussions was of prosecution for that damage, not persecution. She was not satisfied that the uncle’s family would be looking for the appellant, particularly if he were not living on the land to which he believed he was entitled, and he could internally relocate.
71. The Adjudicator also made findings in respect of the appellant’s family life, albeit matters have substantially moved on since those findings and it is unnecessary therefore to repeat them.
72. I accept the force of Mr Bandegani’s submission that in contrast to the case before the Adjudicator in 2005, there is a wealth of additional evidence not only in respect of objective evidence on the likelihood of a family feud concerning land but also specifically in relation to scarring, namely the expert report of Dr Cohen dated 30th November 2016. There have been no criticisms of Dr Cohen’s assessment. She specifically provided an opinion on the appellant’s scarring and mental health issues. For completeness, I deal with mental health issues but address scarring first. At §47, page [C85], Dr Cohen assessed the attribution of a number of lesions, by reference to the well-known Istanbul Protocol. I do not recite all of these findings but very briefly, at §48, she referred to the appellant having a swelling on his cheekbone, which was consistent with an attribution of being beaten. He had 14 lesions on the back and top of his head. One was a scar “in keeping” with it being a deep wound as the appellant had described. Dr Cohen attributed all 14 head scars to blunt trauma wounds, which the appellant described as being caused by the appellant’s uncle and cousins. Dr Cohen stated, at §49, page [C86]:
“The appearances are typical of this attribution of repeated assault with blunt objects. Other possible cause would be accidental falls. Whilst it is not unusual to have one or two small scars from accidental injuries, as the number increases the chances of them all being due to accidental cause becomes correspondingly less. The exception might be found in a person with epilepsy … There is no evidence that [the appellant] has this condition. I therefore conclude that the cause attributed is relatively by far the most likely.”
At §50, Dr Cohen considered a scar on the appellant’s left shin attributed to a beating with a spade handle which she assessed as “highly consistent.” At §§56 to 59, Dr Cohen states:
“56. He has physical evidence that I consider to be typical of the attribution of repeated head injuries from assault with blunt objects with other possible causes for these lesions relatively very much less likely …
58. There was no exaggeration or embellishment of the physical evidence. The history, examination and findings and timeline are all clinically congruent. I therefore find no indications for fabrication as per paragraph 150 f of the Istanbul Protocol.
59. In addition, he has psychological evidence linked to his account. He has re-experiencing symptoms with intrusive recall and distressing dreams…”
73. At this stage, I then turn to the assessment of the appellant’s psychiatric conditions. As touched on at §59, Dr Cohen considered his avoidance behaviour. He had “numbing symptoms” with avoidance of conversations, a diminished range of activities, feelings of detachment and a sleep disorder. He had frequent suicidal thoughts and a feeling that he could not identify any pleasures in life. He met the diagnostic criteria for post­traumatic stress disorder under “ICD-10” and for depression. Those conditions were said to commonly co-exist. Dr Cohen made clear at §60, page [C89] that she made this diagnosis not based solely on the history related by him but on her observations throughout the examination, the responses made to specific clinical questions and her objective findings on examination of his mental state. Her diagnosis was not solely of her own, but that of Dr Basu and he had been treated by other clinicians with antidepressants. She specifically considered at §61 the possibility of fabrication but regarded her psychological findings as entirely consistent with the report given, namely typical reactions to extreme stress within his social and cultural context. The core experiences from his childhood had the greatest impact and she did not regard it as likely that he was fabricating his condition. She thought it unlikely that he would improve significantly until he was able to feel secure and supported and engaged in therapy. He remained extremely fearful of return to Afghanistan and at §64, page [C94] she regarded that regardless of the objective evaluation of risk, his subjective fears would remain overwhelming and place him at a very high risk of further suicide attempts if he were facing return. Importantly, she noted at §69, page [C93]:
“I note finally he has disclosed greater details about his past experiences to me than are apparent in the earlier documents relating to his asylum claim. For example he had not clearly explained before that his father was killed in front of him. I note that this highly traumatic experience would have occurred when he was very young and would have been associated with extreme levels of stress and fear. This can affect the way in which a memory is stored and the ability to retrieve it. Clinical questions asked in a relatively therapeutic setting will often elicit more and different details than have previously been recalled.”
She continued at §71:
“It is a particular feature of sexual violence experiences that victims find it extremely difficult to disclose them or give full details and this particularly the case where victims come from a culture where there is a strong stigma attached to the victims of domestic violence.”
74. Two things therefore emerge. First, the additional detailed evidence of alleged sexual violence by family members against the appellant including rape, and mistreatment which resulted in the scarring has been assessed in detail by an expert whose expertise has not been challenged. I accept that this provides a fundamentally different and greater context of evidence than was before Adjudicator Osborne.
75. The additional evidence is not limited to Dr Cohen’s report. In 2020, Dr Baker diagnosed the appellant as suffering from PTSD, at §13.3, page [D18]. She concluded that the risk of the appellant committing suicide was “highly likely to increase”, should the decision to deport him be upheld (§13.6, page [D19).
76. Moreover, Mr Foxley regards the account of violence, beatings and sexual assault from a young age as entirely plausible (see §22, page [B11]) because of social norms within a very poor country, including widespread domestic violence against children and stigmatisation of those who are the victims of sexual violence. There were two specific “sub-cultures” within Afghanistan relating to male sexual abuse (see §25, page [B13]): “bacha bazi”, or the use of male children as sexual “playthings” in exchange for favour; and second, to humiliate rivals.
77. The other aspect of Mr Foxley’s evidence which is relevant is relation to whether the appellant would attract the adverse interest of his family, if he were to return to Afghanistan, despite having left Afghanistan many years ago. Mr Tufan placed particular emphasis on §29, page [B15], where Mr Foxley stated:
“It is difficult to give a confident answer based on events that took place over 20 years ago in an Afghanistan that is now a very different place. I am unclear whether [the uncle] is still alive. Much depends upon what [the appellant] does, where he goes and what information becomes known about him. If he has contacts with family members, perhaps through forms of social media it is certainly plausible that his arrival and whereabouts could be ascertained by family members that might mean him harm.”
78. However, this is, in my view, to take Mr Foxley’s comments out of context. Mr Foxley continues at §30:
“30. But the risks from a blood feud must not be underestimated…. The death or injury of one or more parties … could certainly trigger a blood feud… It is possible for family members to be involved in disputes that happened when they were children or not yet born….
31. [The appellant] plausibly describes the dispute within his family over the deaths of family members fighting for the Mujahideen against the Communist Army in which the [appellant’s] father was serving. It is plausible that such a dispute could have transferred to [the appellant]. Generations-long blood feuds are not uncommon in Afghanistan. Honour – protecting and guarding the reputation of self, family and tribe is an important concept for Afghans. Loss of honour can be caused by somebody damaging your reputation by insulting, degrading, stealing property or attacking a family member or part of the tribal group. It is at least plausible that [the appellant] could remain a target of vendetta.…”
79. Mr Foxley’s views are consistent with those of Dr Giustozzi, who provided a report, albeit at an earlier date, 13th February 2017. In relation to the issue of whether the appellant could be tracked down if he relocated to Kabul, Dr Giustozzi opined at §18, page [B137], that it might take some time before the family became aware of his presence, but he could not escape them indefinitely unless he were able to hide indefinitely without seeking employment. This was because of the tribal networks and the contacts and sooner or later, once his identity and family background became known, it would quickly and easily spread around Afghanistan. There is no reason to suppose that the relevant family networks and exchange of information have changed since the Taliban takeover of Afghanistan. He pointed out at §19, page [B138], that any attempt to obtain accommodation or employment would result in prospective landlords and employers asking for references and information about the appellant’s place of origin and family background. Eventually the background of individuals would be checked, and the process of checking would be likely to give away an individual’s presence. In Dr Giustozzi’s view the appellant would “certainly” be at risk from cousins and/or his uncle if returned to Afghanistan.
80. I am prepared to accept the combined evidence of Dr Giustozzi, Dr Cohen and Mr Foxley in finding that there is a real risk that if the appellant returned to Afghanistan, any family members would be alerted to the appellant’s presence and that he would face adverse interest from them, beyond prosecution. The nature of such adverse interest is contextualised by the previous treatment which I find he suffered, namely violent assaults and rape at the hands of family members, which is consistent with his trauma and the scarring and also Adjudicator Osborne’s finding that he burnt down premises belonging to his uncle. Family members have the motivation and means to persecute the appellant. I accept that the appellant’s fear of persecution based on a family feud is well-founded.
81. Separately, in relation to the risk of persecution in the context the appellant’s westernisation, which in turn may result persecution because of imputed loss of Muslim faith or opposition to the Taliban regime, I accept that the appellant may on occasion read the Koran in English, as he has now learned to read English. On his unchallenged evidence, he cannot read or write Koranic Arabic and does not pray five times a day. He accepts that he goes to mosque occasionally for common celebrations such as Eid, as it is part of his cultural heritage. However, I also accept that upon return he would be readily perceived as having adopted a western lifestyle. This is for a number of reasons. In terms of his physical appearance, and mindful of the risk of stereotyping, he clean-shaven, has excellent English, does not pray five times a day, and knows little of Taliban politics. If questioned upon arrival and were his family background to become known, he would rapidly be identified as the son of a general within the rule of President Najibullah, and an opponent of the fundamentalist Mujahideen. I do not accept Mr Tufan’s proposition that although there were disputes between the Mujahideen and the Taliban that this would somehow reflect favourably upon the appellant’s links to his father. He would be perceived as coming from a non-Muslim background by virtue of his father and a lack of adherence to strictly conservative Islamic social mores as exemplified in daily life in Afghanistan. I reject any suggestion that even if he were apathetic enough to attempt to blend in, rather than out of fear, this would be effective. This is because of his lack of recent familiarity with Afghanistan, coupled with his ready identification. I am also satisfied that the appellant’s fear of persecution based on imputed opposition to Islamist fundamentalism or loss of faith is well-founded.
82. I am also satisfied that the appellant would be identifiable as part of a particular social group, as having PTSD and depression. In particular, I do not accept Mr Tufan’s submission that because large numbers of Afghan people suffer from PTSD, this makes it less likely that he would be identified as having significant mental health issues. He would attract attention because of a combination of factors, including not only the risk to a deterioration in his mental health on his return, but his struggle to access accommodation and work, which would worsen his mental health, and in turn, reduce his ability to work further. I find that there is a real risk that he would be destitute, without access to accommodation, work, government support, or any other network of support.
83. I base my conclusion about the deterioration in the appellant’s mental health on the expert reports already cited of Dr Cohen, Dr Wilson, whose report was dated November 2020, and Dr Baker’s report dated August 2020. Any criticism of Dr Wilson’s report as relying improperly on non-diagnostic criteria (PHQ-9), ignores the other reports, which in turn had referred to correspondence from mental health practitioners, patient medical records, and Dr Basu’s report. I accept that neither of the two more recent 2020 reports refer to updated GP records, something which, as this Tribunal has highlighted in HA (expert evidence), would be a useful source of information. Mr Tufan argued that the medical records which were disclosed, covering the period up to 9th March 2018, and begin at page [C267], suggest that the appellant did not, at times, have suicidal ideation (page [C269]). However, I do not accept that these isolated instances undermine the longstanding nature of the appellant’s conditions, recorded over a long period, which include suicide attempts. There is no reason to suppose that the appellant’s condition has improved since 2020, the dates of the most recent reports. The fact that the appellant has not adduced further evidence does mean that there is a gap in the evidence such that the appellant has failed to show, to the lower evidential standard, that he still has the conditions relied on. These manifest as feelings of depression, isolation and insecurity which, as the experts have made clear, are likely to rapidly escalate upon the appellant’s return to Afghanistan and involve a high risk of suicide. I find that were the appellant to return to Afghanistan with such deteriorating mental ill-health, the Taliban authorities would not know how to deal with the situation and to the extent that they engaged with him, such engagement would be most likely adversarial in nature born of an antipathy or lack of understanding of mental health issues. Even if he is not given fake medicine, I am satisfied that there is a real risk that he would face adverse attention including possible detention, and physical ill-treatment of a nature amounting to persecution.
Article 3 ECHR - findings
84. For the same reasons that the appellant has a well-founded fear of persecution, namely on the basis of a family feud, his membership of a particular social group on the basis of his mental ill-health, and his perceived loss of faith or oppositional attitude to the Taliban authorities, I find that his return to Afghanistan would breach his rights under Article 3 ECHR. This would be compounded by the risk that he would be destitute on his return, at risk on the streets of ill-treatment from the general population, without access to accommodation or employment, having never worked in the UK. I accept the paradigm outlined by Mr Bandegani that the appellant’s mental health would rapidly deteriorate, limiting his ability to find work and accommodation which would in turn worsen his mental health further. His destitution would feature as an aspect of the article 3 risk, resulting in inhuman or degrading treatment.
85. In addition or in the alternative, I turn next to the issue of whether the appellant’s mental ill-health would mean that he is additionally at risk, not from the adverse attention of others, but as a seriously ill person, where substantial grounds have been shown that there would either be a serious, rapid and irreversible decline in his health, resulting in intense suffering, or there is relevant risk of suicide. In relation to whether the appellant has shown that he is a seriously ill person, the test is a simple question, and I add no gloss to it. Noting the high bar of such a test, I am satisfied that the appellant is seriously ill person. He has longstanding and serious PTSD, diagnosed by multiple specialists, for which he is not currently receiving treatment, and which he could not access in Afghanistan. I am also satisfied that there would be a real risk of suicide, if the appellant were returned to Afghanistan. It would be in the context of an objectively well-founded fear of persecution, and without any mechanisms in Afghanistan to reduce that risk.
86. I am less persuaded that if the appellant were to return then he might be at risk because of fake medicines. In reality, I am not persuaded there is sufficient evidence that the appellant would ever have access to any medicines.
87. It is unnecessary for me to make any further findings about a serious, rapid and irreversible decline, as there is already a relevant risk of suicide.
Article 8 ECHR - findings
88. Turning next to the question of article 8 ECHR, in relation to the appellant’s private life, whilst the appellant cannot rely upon Exception 1 (see section 117C(4) of the 2002 Act), he has not been lawfully resident in the UK for most of his life but nevertheless I consider whether he is socially and culturally integrated in the UK and whether there would be very significant obstacles to his integration in Afghanistan.
89. On the one hand, I am also conscious that the appellant has, on his own account, never worked in the UK. There is limited information about the other aspects of the appellant’s life in the UK in terms of friendships, groups or voluntary activities.
90. On the other hand, the appellant’s “westernisation” reflects his integration into UK society. He claims, and the respondent accepts, that he has friends in the UK. While the evidence is limited, I am just about persuaded that the appellant had integrative links in the UK, before his imprisonment, which have not been broken, notwithstanding the gravity of his offending in 2011 and subsequent imprisonment, and that he has reintegrated on release from prison and detention, given his continuing friendships.
91. The question remains of whether there would be very significant obstacles to his integration in Afghanistan. I have already identified from a protection perspective the obstacles that I foresee in terms of the risk of persecution. For the same and additional reasons, (albeit to the higher standard of proof) I am satisfied that there would be very significant obstacles to the appellant’s integration. In terms of the additional reasons beyond active adverse interest from those persecuting him, whilst the appellant speaks Dari, he has no family or tribal connections with Afghanistan, other than those who would persecute him. He would be returning to Afghanistan, a country which on any account is in a grave economic situation with high levels of unemployment and limited access to jobs and housing. I accept the expert evidence that he would find it virtually impossible to find any work. He has never worked in the UK, notwithstanding his ability to read and write English, and whilst he may have had some training in building and construction work whilst in prison, the challenges he will face, as outlined by the experts, is for work as one person in a pool of labourers, waiting at pre-agreed collection points where those labourers will have corresponding connections and networks. In reality, the appellant will be returning to a country he has not lived in for 20 years without means of supporting himself and, crucially, without the means of financial support from anyone in the UK. The respondent’s generalised assertion that the friends that he has in the UK would be willing to support him is just that, namely a generalisation.
92. While appellant cannot rely on Exception 2, (see section 117C(5) of the 2002 Act), in relation to the appellant’s right to respect for his family life, I am conscious that, as HA (Iraq) makes clear, the appellant’s immigration history is immaterial for the purposes of the question of ‘undue’ harshness, beyond the starting point that deportation of foreign criminals is in the public interest. On the one hand, the older son, OS, is nearly 18. On the other hand, as he states in his own compelling witness evidence, OS regards the appellant as the only family he has. OS has very limited contact with his mother, a recovering alcoholic, and a half-sister who lives in Germany. In his own words, OS would be lost without the appellant. I take into account that there is no “ordinary” assessment of what a typical child would face and on the other hand, it must go beyond mere inconvenience or be more than merely upsetting. I have little doubt that the effect on OS would be to sever any family connection between him and his father in circumstances where his father is removed to Afghanistan, with attendant difficulties in contacting one another. I also have no doubt that the effect would be devastating and would ultimately, I find, notwithstanding the high threshold, that the effect on OS would be unduly harsh. Little is known about the appellant’s younger child, other than a written witness statement from the appellant’s current partner, who has not come to give witness evidence. I am prepared to accept that such evidence exists and that he has an ongoing relationship with that younger child including regular contact but the child is at a far younger age and in contrast to OS, it is clear that the younger child has a mother such that he would not be in the same situation of being without any other family. I am not satisfied, given the gap in the evidence, that the effect of deportation on the appellant’s younger child or current partner would be unduly harsh.
93. Turning to the question of very compelling circumstances, I conclude that first, the decision to reject the appellant’s human rights claims would be of such impact so as to interfere with the appellant’s right to respect for his private and family life in the UK.
94. I also attach very significant weight to the public interest in the appellant’s deportation. The seriousness of the appellant’s index offence was reflected in the very lengthy prison sentence, the sentencing judge’s description of the nature of the violence involved in the offence and the fact that it was witnessed by OS, who was a young child at the time. I also bear in mind that the appellant continues to constitute a risk to the community of the UK, with a history of offences against a former partner and another relative. He remains socially and culturally integrated in the UK, but the evidence of friendships is limited and while he speaks English, he has never worked in the UK. Weighed against this, in respect of the appellant’s private life, I return to the appellant’s inability to integrate in Afghanistan. I take into account the risks of persecution from family members and the Taliban authorities, destitution and suicide. I conclude that these constitute very compelling circumstances and outweigh the very significant public interest in deportation.
95. In respect of the appellant’s family life, as I have already noted, the effect of deportation on OS would be unduly harsh. I consider whether there are very compelling circumstances over and above Exception 2. I once again reflect on the very significant weight of the public interest in deportation. However, I return to the effect upon OS. Focussing on the devastating impact on OS, which I do not put so high as to say that it would result in OS going “off the rails” or anything analogous, it would have the effect of effectively separating a child in care from the only family relative with whom OS has any substantive relationship. I conclude that that amounts to very compelling circumstances, notwithstanding the seriousness of the appellant’s offending.
96. In light of my conclusions, it is unnecessary for me to consider whether, when combined together, the appellant’s right to respect his private and family life constitute very compelling circumstances. However, for completeness, I do so. Despite the very high public interest in the appellant’s deportation, given the grave impact of the appellant’s return to Afghanistan, because of his ability to reintegrate in that country (which it is unnecessary to recite), together with the effect on OS, I conclude that when considered holistically, the appellant’s situation constitutes very compelling circumstances.
97. None of the remaining factors under section 117 of the 2002 Act (including the appellant’s lack of financial independence, never having worked) counter the conclusion that refusal of the appellant’s human rights claim is disproportionate and is in breach of his rights under article 8 ECHR.
Conclusions
98. For the above reasons, I conclude that the appellant has not displaced the presumption that he constitutes a risk to the community of the UK. The consequence is that even though he may have refugee status, his protection claim must be dismissed in accordance with section 72(10) of the 2002 Act.
99. Nevertheless, for completeness and because the appellant is entitled to know whether he has status as a refugee, even though his claim must be dismissed as such, I am satisfied that the appellant has a well-founded fear of persecution based on the three characteristics of a family feud; as a member of a particular social group as somebody with PTSD; and also at risk because of his lapse in faith and perceived oppositional attitudes towards the Taliban regime because of his westernisation.
100. I also conclude that the refusal of leave to remain would breach the appellant’s rights under articles 3 and 8 of the ECHR, which are unaffected by the Section 72 certification decision.
101. As a result, the appellant’s claim as a refugee fails and is dismissed. His claims under articles 3 and 8 succeed.

Decision
102. The appellant has not rebutted the presumption that he constitutes a danger to the community of the UK. The appellant’s appeal on refugee grounds is dismissed.
103. The appellant’s appeal under article 3 ECHR is upheld.
104. The appellant’s appeal under article 8 ECHR is upheld.

Signed: J Keith

Upper Tribunal Judge Keith

Dated: 15th August 2022