Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003512

First-tier Tribunal Nos: PA/51547/2023
LP/02274/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 09 April 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

AA
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms J Fathers, University of London Refugee Law Clinic
For the Respondent: Ms P Everett, Senior Home Office Presenting Officer

Heard in a hybrid hearing at Field House on 18 March 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 the appellant (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. This appeal came before me on 27 January 2025 when I found an error of law and adjourned the appeal for re-making. The error of law decision and reasons is appended.

2. The key issue in the case is the Appellant’s nationality, in particular, whether he is Afghan or Iranian and if I find he is a national of Afghanistan, whether he would have a well-founded fear of persecution on return there or be at risk of treatment in breach of article 3 of ECHR.

Hearing

3. It was accepted that the Appellant is a vulnerable witness due to his mental health issues and long-term drug addiction and that the psychiatric report of Dr Latifi dated 12 May 2022 opined that cross examination on previous traumatic events would be likely to stimulate trauma. Ms Everett indicated that she had only a few questions for the Appellant that were concerned with documentation and his siblings.

4. Ms Fathers called the Appellant to give evidence and he adopted his witness statement of 21.6.22. The Appellant confirmed that he continued to receive support from “Change, Grow, Live” and that he continued to take opiate substitute medication every day in the form of 16mg of Espranor.

5. In cross-examination when asked if he had any plans to come off his medication or taper it down, the Appellant stated that he was trying – it was 18 mg now it is 16mg. He confirmed that his medication had increased in 2mg increments from June 2022 but he had managed to reduce by 2mg and that he was trying his best to reduce it further. He explained that the reason his dose was increased was because he had increased pain in his bones, particularly his knees and elbows.

6. The Appellant was asked how he obtained documents he had provided from his siblings in the form of copies of Iranian residence cards at AB 57-63 with translations. He stated that his brother was in Iran and he asked him to send a picture of them. He clarified that this was his brother, Yousuf, who still lives in Iran. The Appellant confirmed that he has two brothers and a sister in Germany. He said they have got status or a visa but he did not know if they were refugees or not. When asked if he was in touch with them the Appellant stated that his sister calls him sometimes and he calls his brother once or twice in a year. When asked why he had not asked them to send him documents showing they applied as Afghans to the German authorities he said that he did not think they had their status at that time when he was making the application; that they had got their status recently and sent him Iranian documents. By recently he said this was about a year or 6 months ago and that when he spoke to his sister she told him they had been given status for 4-5 years.

7. The Appellant was asked about his brother, Bala and whether he was married to an Iranian national and he confirmed that Balal’s fiancee is in Iran. The Appellant stated that Balal had been there twice, most recently about 18 months ago. He confirmed that Balal has an Afghan passport and an English visa and that he cannot travel with an Afghan passport to Iran.

8. The Appellant was told that Balal mentions a cousin in Afghanistan and asked whether he was still in touch with that cousin, to which the Appellant responded that he has no contacts with anyone at all. He has brothers and sisters he has not had contact with for 8-9 years. He confirmed that he had quite a lot of cousins in Afghanistan but that he was not in touch with any of them, due to the distance, his life and being poor as well. He did not think they all lived in the same area of Afghanistan and that they may be spread around Afghanistan, in Iran or have come to Europe. They are not all in the same area but a bit of the family is there.

9. There was no re-examination. In response to my questions, the Appellant stated that he did not have a partner or children but he did have friends. In terms of his relationship with his brother Balal, the Appellant stated that: “he keeps in contact with me though I don’t keep in contact with him.”

10. The Appellant’s brother, Balal, then gave evidence via cvp from his workplace in Newcastle. He adopted his two witness statements dated 13.1.25 and 11.3.25.

11. In response to questions from Ms Everett, Balal stated that he last visited Iran 2-3 months ago, travelling on his Afghan passport with a visa. He said he thought his siblings in Germany had visas to stay in Germany for 3-4 years. He did not know why their sister had withdrawn support for the Appellant. He confirmed that he had obtained an Afghan passport with the assistance of his cousin there and that there were still in contact, although he is not living in Afghanistan anymore he is living in Iran now.

12. When asked if there was any family in Afghanistan who he was in touch with Balal said that he had no close family but he had a maternal aunt in Afghanistan who he was sometimes in touch with although she is “too old” now. He said that she was living in Parwan province. When asked if the Appellant had to go to Afghanistan whether he could stay with their maternal aunt Balal said No there is no-one there and that his brother has a mental problem and is not healthy; their aunt is too old and nearly died. Balal said his aunt has a husband and a son and a daughter and she is not well enough to look after the Appellant. Balal, speaking through the Dari interpreter, confirmed that his aunt was living with her daughter and son in law and the reference to husband was to his aunt’s daughter’s husband and it would not be possible to have an additional person. He thought his aunt had no contact with her son and that he did not have any contact with him either and did not know his whereabouts.

13. Balal said that he did not know why their siblings in Germany did not provide more documents to show they are Afghan nationals. He said that he did not know if they have any passports or not he did not know if they have contacts with his brother here and he was hearing all of these things for the first time. He confirmed that he did not know if the Appellant was in contact with his siblings in Germany. He said that the Appellant does not keep in contact with anyone at all he does not keep in contact with him and he had to call him.

14. There was no re-examination or further questions.

15. In her submissions, Ms Everett relied on the refusal decision dated 18.1.23 in its totality albeit she acknowledged it may not assist entirely in determining the matter. She stated that she did not cross-examine the Appellant on the in’s and out’s of his claim mostly because of the history of the appeal and he has given very different accounts previously which makes his account difficult to rely on, hence focusing on the documentation provided by his siblings. She acknowledged that a copy of the Afghan passport of his brother Balal had been submitted and that may be persuasive evidence but there is a curious absence of documents from his other siblings: there is an assertion from Nasim in Germany that he is a recognised refugee but none of the German documents showing he and his siblings were recognised on the basis that they claimed as Afghan nationals have been provided. Ms Everett submitted that this was an issue that troubled the First tier Tribunal Judge, albeit his decision has been set aside. She submitted that the evidence of the Appellant and Balal today does not deal with that aspect and these documents would be easy to get hold of and casts doubt on the nationalities this family are claiming.

16. Ms Everett submitted that if I were to find the Appellant to be an Afghan national the CPIN on Afghanistan: Fear of the Taliban (August 2024) suggests there is not a risk to people who have a generalised fear of the Taliban and that is relied upon.

17. With regard to the need for ongoing medical treatment, Ms Everett acknowledged that the Appellant had given evidence as to his current treatment but noted that there was no updated medical evidence that he is on a particular dosage of the drug. She submitted that this was not a complex medical need and there was no medical evidence as to whether he could be tapered down further and the most recent evidence was from 2022.

18. In terms of where the Appellant could go in Afghanistan, Balal said there was a maternal aunt but his evidence was somewhat evasive and changed from his aunt being with her husband and son and daughter but then to her daughter and husband and she submitted that his evidence was not reliable.

19. In her submissions, Ms Fathers sought to rely upon her skeleton argument dated 12 March 2025 and a 673 page composite bundle, both of which were submitted in line with directions. In terms of Balal’s evidence she drew attention to the fact that there was a note from the Court interpreter that the evidence in relation to Balal and his aunt had an interpretation error and was then clarified. This was because Balal was speaking in English and then clarified in Dari. The Appellant’s own interpreter also provided a note that Balal said nothing originally about a son. She submitted that in light of the amendments there was no issue as to the reliability of Balal’s evidence.

20. With regard to the Appellant’s nationality, Ms Fathers sought to rely upon the report by Dr Zadeh and Mir Abas dated 23.6.22 AB 598. She submitted that the Respondent had not raised any issues regarding Dr Zadeh and that some weight should be given to the report. The reason it was ultimately rejected by the Respondent was because it did not exclusively confirm that the Appellant is an Afghan national. The report’s conclusions are at AB 611 which are that the Appellant speaks a version of Dari found in Kapisa province and has the culture and habits of an Afghan national. If he were an Iranian national he would not be able to speak Dari to a native level and he speaks Farsi like someone who has learned in Iran. He must have been born to Afghan parents and lived within an Afghan community. Therefore, there is a high degree of likelihood that he is an Afghan national. In Dr Zadeh’s supplementary report at AB 74 he finds that the Appellant speaks Farsi as learned by a Dari speaker and imitation was noted by both experts.

21. With regard to the psychiatric report by Dr Latifi, this sets out that he spoke to the Appellant in Dari and noted the Appellant speaks with a proper Afghan accent distinct from Farsi and avoided using jargon and spoke in a simple manner. Ms Fathers sought to rely upon the March 2024 report of Shamin Asghari at AB 79 and submitted that the Iranian government does not show any willingness to apply nationality provisions to the Afghan population: see 3.1. and arbitrary application of the laws at 3.3. She sets out a series of categories that Afghans comprise including those holding amayesh cards and time bound visas and Afghans born to Iranian mothers and it is not possible to obtain Iranian nationality in such a situation. There is a further addendum report by the same author at AB 31 dated 7.3.25. It is Ms Ashgari’s opinion that the Appellant was an amayesh card holder when living in Iran but this would have been voided when he left Iran and he has no legal right to re-enter.

22. With regard to the absence of documents from his siblings in Germany, Ms Fathers stated that she did not turn away from the Appellant’s previous determination and his differing accounts, but what is clear and confirmed by Balal is that the Appellant has a long history of drug addiction and mental health problems and has lived a transient lifestyle in the UK for a very long time. The has difficult relationships with his family members and this is supported by the fact that his sister decided not to provide further documents. Ms Fathers drew attention to the fact that there are witness statements from family members including his brother, Nasim and Balal’s oral evidence who also said that the Appellant has difficulties keeping in touch and he has been consistent on this.

23. Ms Fathers submitted that the Appellant is a national of Afghanistan not Iran. She submitted that he meets the definition of refugee under the Refugee Convention on the basis of imputed political opinion/membership of a particular social group i.e. a person with mental health and addiction issues and he would be likely to be perceived as being westernised. The Afghan CPIN at 16.3.1. states that persons perceived to be westernised may be seen as non-Afghani or non-Muslim and that profile might overlap with transgressing societal norms and the Appellant’s mode of dress and history of drug addiction should be considered within this context. He is taking medication in respect of that. The Appellant has also been outside Afghanistan for many years and has transgressed moral and religious codes and would be seen as non-Muslim. There is evidence throughout the CPIN that those who transgress face corporal punishment the risk of round ups and indiscriminate punishment. Afghanistan remains one of the world’s worst humanitarian crises and economic challenges.

24. Ms Fathers submitted that given the Appellant’s evidence and lack of available family in Afghanistan he would be subjected to material deprivation and a lack of health care support. With regard to the reports on healthcare the 2024 WHO report provides that 17.9 million people needed health assistance and 9.5 million had not had access to this; access to mental health support has diminished due to funding. Prior to the Taliban takeover mental health services were lacking and this is a serious barrier to support. The report of Dr Latifi makes clear that there is a risk of deterioration in the Appellant’s mental health if removed. The letter from Change Grow Live highlights the relatively high dose of the drug and that the Appellant should be guided off slowly with the assistance of a health professional. Ms Fathers submitted that the appeal should be allowed with reference to both asylum and article 3 ECHR.

Decision and reasons

25. The starting point following Devaseelan [2002] UKIAT 00702 is the determination of Judge Neuberger dated 29 October 2010, dismissing his appeal which had been brought on the basis that he was a national of Iran. The Appellant says he did so as he was advised to by friends on the basis that if he did end up getting deported it would be safer for him in Iran than in Afghanistan [WS at [14]]. The Appellant did not have a legal representative either at the time of his asylum interview or at the appeal hearing. On 1 July 2022, having instructed new representatives, he made a fresh claim on the basis that he was a national of Afghanistan and that he will be subject to a breach of Article 3 ECHR if returned there due to his mental health, his drug addiction and that he would be destitute.

26. The Appellant’s representatives have submitted the following evidence of nationality:

(i) A nationality report by Dr Zadeh and Mir Abbas dated 23.6.22, following an interview with the Appellant on 7 June 2022
(ii) An addendum report by Dr Zadeh and Mir Abbas dated 9 May 2023;
(iii) Research report by Shamim Asghari March 2024 and an expert report regarding the Appellant which opines that she cannot return to Iran as his amayesh card will have expired;
(iv) His brother, Nasim’s, Iranian ID card which is a temporary residence card for a foreign national issued in 2012;
(v) His brother, Shaheen (Shahikhan)’s copy of Afghan passport and Iranian ID for a foreign national issued in 2016;
(vi) His brother, Yousef’s Iranian ID card for a foreign national issued in 2022;
(vii) His brother, Balal’s tazkira and Afghan passport

27. In addition the Appellant and his brother, Balal, gave evidence as to nationality.

28. I am required to determine the Appellant’s nationality on the balance of probabilities. In have given careful consideration to the evidence and noted in particular the opinions of Dr Zadeh and Mir Abbas summarised at [20] above as to the Appellant’s spoken Dari and Farsi and the documents, albeit incomplete, from the Appellant’s brothers indicating in the case of Balal and Shaheen that they are nationals of Afghanistan and in relation to Nasim and Yousef that they have a form of ID cards pertaining to a foreign national in Iran, I find on the balance of probabilities that the Appellant is a national of Afghanistan as he claims. Whilst the Appellant has given inconsistent accounts of his past life, this is at least in part attributable to his long term drug addiction, which also played a role in his asylum interview when he claimed to be a national of Iran. I find the evidence now adduced to be sufficient to discharge the burden of proving he is a national of Afghanistan as he claims.

29. In light of the fact that the Appellant made a fresh claim after 28 June 2022, sections 31-36 NABA 2002 apply. It is clear from JCK (s.32 NABA 2022) (Botswana) [2024] UKUT 00100 (IAC) that a structured approach is required.

30. The first question is whether, on the balance of probabilities, there is a Refugee Convention reason. I find that there is, as submitted by Ms Fathers, on the ground of imputed political opinion and/or membership of a particular social group, being that of a person with mental health and addiction issues or who is likely to be perceived to be westernised: YMKA and Ors (‘westernisation’) Iraq [2022] UKUT 00016 (IAC); DH (Particular Social in Group: Mental Health) Afghanistan [2020] UKUT 0022.

31. Secondly, whether, on the balance of probabilities, the Appellant "does in fact fear" such persecution i.e. the 'subjective fear' test. I find having been absent from Afghanistan from the age of around 9 years of age, so for 30 years and given his long term drug addiction and mental health issues he does fear return there. I further accept that in his statement at [16] the Appellant says he is not a very religious person, he does not fast or pray regularly and actively opposes the views of the Taliban.

32. Thirdly, is it reasonably likely that there is a risk of harm to the Appellant on return to Afghanistan? I have carefully considered the background evidence set out in the Appellant’s bundle, in particular a report entitled “Scared Straight: Taliban treats drug addicts with a heavy dose of prison 4.4.22” which reports at AB 333 that thousands of addicts were rounded up, beaten and imprisoned where they were forced to go cold turkey without access to methadone or counselling. The report further provides that since the Taliban takeover many of the drug treatment centres previously in operation and dependent on foreign funding have closed. Afghanistan remains the world’s leading producer of opium and it is estimated that there are 3.5 millions addicts, approximately 10% of the population. A report from Al Jazeera at AB 405 highlights that the physical abuse and imprisonment of drug addicts by the Taliban is systemic and indiscriminate.

33. I have also taken account of the Appellant’s mental health and I accept that he has been diagnosed with PTSD and depression by Dr Latifi. It is clear from the background evidence that the healthcare system in Afghanistan is on the brink of collapse as the CPIN Humanitarian Situation August 2024 makes clear: see [8.5]. The Human Rights Watch report 2024 notes that access to mental health support has diminished because of the loss of funding from foreign donors and mental health services are generally the first to be cut.

34. I find there is a reasonable likelihood that the Appellant would be unable to access treatment for his drug addiction and that there is a reasonable likelihood that he could be imprisoned and forced to go cold turkey which would inevitably result in a deterioration in his mental health and amount to inhuman and degrading treatment contrary to article 3 of ECHR.

35. I have also taken into consideration the updated CPIN on Afghanistan: Fear of the Taliban (August 2024) which was relied upon by both representatives. Whilst there have been insufficient removals and/or returns to Afghanistan since the Taliban takeover to assess whether individuals who are long term residents abroad in western countries are subjected to persecution the CPIN at 16.3.1. provides that persons perceived to be westernised may be seen as non-Afghani or non-Muslim and that profile might overlap with transgressing societal norms. Given the Appellant’s attitude towards the Taliban, lack of strict adherence to Islam, his mode of dress, history of drug addiction and 30 year absence from the country, I find in light of the background evidence that the Appellant would be at risk of harm if returned to Afghanistan.

36. I find that there is a reasonable likelihood that the Appellant would be subjected to persecution by the Taliban on account of his individual characteristics which would place him within a particular social group, as outlined at [30] above and/or on account of imputed political opinion.

37. Fourthly, is it reasonably likely that there is an absence of State protection in Afghanistan? The CPIN at 4.1.1. states: “Where the person has a well-founded fear of persecution from the Taliban (the de facto state) they will not, in general, be able to obtain protection.” Consequently I find that the Appellant would be unable to access any State protection on return to Afghanistan.

38. Fifthly, is it reasonably likely there would be no reasonable internal flight alternative? The CPIN provides at 5.1.1. that: “Where the person has a well-founded fear of persecution from the Taliban (the de facto state), they are unlikely to be able to relocate to escape that risk.” I find accordingly that it would not be realistically possible for the Appellant to internally relocate.

Notice of Decision

39. The appeal is allowed on both protection grounds and on the basis that removal of the Appellant to Afghanistan would be contrary to article 3 of ECHR.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman
Immigration & Asylum Chamber

4 April 2024