“(1) In all of these cases (except one) following the initiation of these proceedings: a. The Respondent, having received further representations on behalf of all of the Applicants, reconsidered the initial impugned decisions and made a fresh, updated decision in each case. One of the decisions was an original one. All of these decisions refused the Applicants’ claims under paragraph 353 of the Immigration Rules. These are the decisions now under challenge (the “impugned decisions”) b. Since the impugned decisions were made, during the currency of these proceedings a substantial quantity of further evidence has been generated bilaterally. All of this new evidence has been placed before the Tribunal. None of it has been provided to, or considered by, the Respondent in a decision making context. All of the new evidence, to a greater or lesser extent, has a bearing on the two central grounds of challenge pursued by the Applicants, namely (in a nutshell) risk upon return to their country of origin, Afghanistan and an inter-governmental memorandum of understanding. (2) It appears to the Tribunal that, but for the intervention of these proceedings, all of the new material would inevitably have been placed before the Secretary of State in the context of further representations and submissions on behalf of the Applicants, for the purpose of reconsideration of the impugned decisions and fresh decisions. This has not occurred. (3) In the event of any or all of the Applicants failing in their judicial review challenges, it seems to the Tribunal that the analysis in (2) above applies fully. (4) If any of the Applicants were to succeed in these proceedings, the relief to be granted would, as requested, almost certainly be an order quashing the impugned decision/s. The effect of this would be to oblige the Respondent to reconsider the impugned decision/s substituting a fresh decision or decisions. In this scenario, it appears to the Tribunal that the Applicants will inevitably rely upon the new material for the purpose of urging more favourable decisions. (5) Taking into account the Applicants’ duty of candour to the Tribunal and their duty to co-operate with the Tribunal and considering further the overriding objective and the discretionary character of judicial review proceedings, the Applicants’ solicitors are required: (a). to confirm the correctness of the Tribunal’s assessment in (2), (3) and (4) above; and further, or alternatively, (b). to provide such other confirmation and/or information as may be appropriate. (6). In the event of an affirmative confirmation of the Tribunal’s assessment in (2), (3) and (4) above, the Applicants solicitors should also indicate in writing [not to exceed two A4 pages) the grounds upon which it is contended (if it be thus contended) that these proceedings should continue.”
“The Applicants in the lead cases invite on a pragmatic basis a reconsideration by the SSHD of her impugned decisions dated 23 and 31 March and01 April 2015 , which reject their representations as fresh claims, to allow her to consider all the material submitted by the Applicants subsequent to that together with that submitted before.”
“…. The Applicants seek, after weeks of intense litigation, to stay the almost complete substantive hearing of the impugned decisions in respect of their first and second fresh claim applications to make a third/fourth application and without at this stage the full evidence on which they will rely and which they seek 14 days to obtain …. The proper approach is that the decision as to whether there should be, or not, a further application should be considered by the Applicants’ advisors once all the new evidence is available and in light of the Tribunal’s judgment in respect of their past applications.”
“…. Following that adjourned permission hearing the SSHD was asked (via her Counsel) whether she wished to consider [Mr Foxley’s expert report of07 May 2015 ] in the context of these proceedings and if so the Applicants could withdraw their claim. The SSHD declined to respond to this but stated in her second skeleton argument that she was prejudiced both by the new material and by the rolled up hearing now directed at short notice.”
“If any or all of the fresh material is excluded from [the Tribunal’s] consideration the Applicant will, as previously observed by the Tribunal, place (and any further) material before the SSHD for her consideration in any event and she is bound to consider it and further proceedings may ensue.”
“…. He is unwilling to continue operating the current MOUS [Memoranda of Understanding] until new ones are negotiated because the removing countries are breaching conditions: women and children and people who are mentally and physically unwell are being removed, as well as those who cannot be returned to their provinces of origin. The Minister argued that only those who could safely be returned to their provinces of origin should be removed …. In the Minister’s view, only Bamiyan and Panjshir were safe, but the roads to Bamiyan are not.” [Our emphasis.] On26 March 2015 Dr Schuster provided an updated report. In this she quotes from the opinion of04 February 2014 expressed by Professor William Maley, also described as an expert: “…. It is essential to appreciate that the situation in Afghanistan is extremely fluid and assessments of the situation made even a year ago do not necessarily provide an accurate picture of the situation at the beginning of 2014.”
“The withdrawal of international troops, the prolonged period of uncertainty before the formation of the new government following the election embolden the insurgents and the beginning of 2014 saw a number of spectacular attacks that have continued into 2015. Currently, the Taliban/insurgents are active in 32 out of 34 provinces and the security forces are having to battle for control of many, especially in the south … and east …. It makes little sense to single out particular provinces as almost all have seen a sharp decline in security and an increase in attacks and casualties. It is anticipated that insecurity and attacks will further increase as usual with the start of the annual spring offensive.”
“…. While civilian casualties caused by IEDs [improvised explosive devices] also increased to unprecedented levels over the same period in 2013, deaths and injuries caused by mortars, rocket propelled grenades and small arms fire in ground engagements jumped dramatically as the frequency and intensity of these incidents increased in 2014, particularly in areas with concentrated civilian populations (such as Kabul). In 2014, the fight is increasingly taking place in communities, public places and near the homes of ordinary Afghans, with death and injury to women and children in a continued disturbing upward spiral.”
“A non-international armed conflict continues to affect Afghanistan, posing the Afghan National Security Forces (“ANSF”) assisted by the International Military Forces (“IMF”) against a number of Anti-Government Elements (“AGEs”), notably the Taliban. Afghans in rural communities perceive AGEs to be exercising de facto control over areas in many regions of Afghanistan … to assume effective control of communities … or to harass and intimidate local residents into supporting them.”
“The security situation in Afghanistan remains unpredictable, with civilians continuing to bear the brunt of the conflict … With the ongoing security transition, the nature of the conflict has changed as AGEs have changed the focus of their attacks from the IMF to Afghan targets. AGE attacks have shown a significant increase in targeted killings of local civilian leaders and a general campaign of intimidation aimed at controlling communities in rural areas. Moreover the conflict, which had previously been concentrated in the south and east, has come to affect most parts of the country …. Similarly, while AGEs continue to carry out high profile attacks in Kabul, the violence is not limited to Kabul or more generally to urban centres.”
“UNAMA started tracking civilian casualties (comprising civilians who are either killed or injured as a result of conflict and other forms of violence) in 2007. The number of civilian casualties increased every year between 2007 and 2011. UNAMA noted that while the total civilian casualty figure for 2012 represented a 4% decrease compared to 2011, civilian casualties in the last half of 2012 increased by 13% compared to the same period in 2011. This upwards trend continued in 2013. In the first 6 months of 2013, UNAMA registered 3852 conflict related civilian casualties, an increase of 23% compared to the same period of 2012 and representing a return to the record high number of civilian casualties of 2011.”
“The only exception to this requirement of external support are single able bodied men and married couples of working age without identified specific vulnerabilities …. who may in certain circumstances be able to subsist without family and community support in urban and semi-urban areas that have the necessary infrastructure and livelihood opportunities to meet the basic necessities of life and that are under effective government control.”
“In those areas, which are now left to the ANSF, insurgents increasingly take control of territory and attack administrative centres and security installations …. The transition initiated a new phase in the war, characterised by fighting between the ANSF and insurgent groups … The overall trend is one of decreasing government control outside the larger towns and cities, escalating violence and more insurgent attacks.”
“… ANSF have repelled most attacks and regained control over district administrative centres and security installations …. More civilians were caught in cross fire and ground engagements. However, in some areas, ANSF succeeded in holding the territory after the closure of an ISAF base, which resulted in fewer civilian casualties ….”
“….. more civilians were killed and injured in ground engagements, including rockets, mortars and grenades and cross fire, than any other type of violence [since 2009]. The regions where ground engagements and cross fire led to the most civilian casualties are the south, south east and east … The vast majority of civilian casualties is attributed to AGEs.”
“… The insurgency itself threatens the Afghan government’s control over terrain. Taliban attack patterns in 2014 were not typical of the previous two years. The Taliban conducted high profile attacks on district centres and security check points throughout the country in late 2014, often with massed, co-ordinated assaults. These factors led to casualty rates for both Afghan security forces and Afghan civilians in 2014 higher than in any of the last six years …. Far from defeated, the ongoing Afghan insurgency remains a serious challenge and threatens to reverse hard won prior gains …. Second, the ANSF lacks requisite capacities as a counter insurgent force. Although the ANSF was able to push back insurgents from seized district centres over the past year, the ANSF may not be able to sustain a sufficient forward presence to prevent their return … The insurgency’s resilience in the face of ANSF clearing operations suggests that the ANSF lacks the ability to clear and hold terrain decisively. The fight will protract over the long term, which is a problem at this rate of combat loss.”
“The Taliban’s strategy at the local level is to subvert, weaken and drive out institutions of state governance, isolate the Afghan security forces and build parallel institutions with which to increase its influence across Afghanistan’s periphery …. ANSF units are increasingly confined to their bases and security check points, unable or unwilling to go out on patrol in the community. This leaves the Taliban free to provide its own forms of governance in the countryside. Such a situation allows insurgents to sustain ground attacks on ANSF units.”
“The violence witnessed since late 2014 and so far in 2015 in Afghanistan is not an anomaly, but indicative of a resurgent enemy … The insurgency will again to attempt to increase its influence in rural areas …. by temporarily seizing a number of vulnerable rural Afghan check points and district centres … The Afghan Central Government too is preparing to face a difficult spring and summer offensive in 2015 ….”
“ANSF still retains the capability to move units and supplies along major road networks to reinforce urban centres against large scale Taliban advances. And with more than 150000 troops, the ANA theoretically has the ability to field significant numbers of men and equipment …. [However] should the Afghan state fail to provide an adequate level of protection, local communities would be tempted to militarise, creating a breakdown of state authority that would facilitate the regeneration of trans national terrorist groups in the country.”
“Consistent with trends documented in the first half of 2014, ground engagements increasingly killed and injured women and children … The rise in civilian casualties from ground engagements largely resulted from civilians caught in cross fire between insurgents and Afghan security forces during fighting in and around populated areas …. Anti-Government elements [AGEs] increased their mobility in a number of regions and increasingly carried out ground attacks against Afghan security forces to hold territory and secure new areas.”
“In the first three months of 2015, civilian casualties from ground engagements rose by 8% compared to the same period in 2014. Ground fighting between Pro-Government Forces and Anti-Government elements caused 521 civilian casualties (136 civilians killed and 385 injured).”
“In general, the state is unable to provide effective protection, although each case will need to be considered on its specific facts.”
“The greatest barrier to movement in some parts of the country was the lack of security. In many areas insurgent violence, banditry, land mines and IEDs made travel extremely dangerous, especially at night. Armed insurgents also operated illegal check points and extorted money and goods. The Taliban imposed nightly curfews on the local populace in regions where it exercised authority, mostly in the south east.”
“UNHCR generally considers internal relocation as a reasonable alternative where protection is available from the individual’s own extended family, community or tribe in the area of intended relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infra structure and under effective Government control. A case by case analysis will, nevertheless, be necessary given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows and growing internal migration to urban areas.”
“However, as agreed with the Afghan authorities, from April 2003 those not choosing voluntary return and found to be without protection or humanitarian needs have been liable to be considered for enforcement action although those individuals or groups identified as vulnerable are excluded from the programme of enforced returns.”
“…. are given immediate post-arrival assistance including temporary accommodation and onward transportation if required and [are] offered access to a reintegration programme which includes vocational training and business support options.”
“….. in order to assist the voluntary, dignified, safe and orderly repatriation to and successful reintegration in Afghanistan of Afghans now in the United Kingdom who also opt to return.”
“The Participants will take special measures to ensure that vulnerable groups receive adequate protection, assistance and care throughout the repatriation and reintegration process. In particular, measures will be taken to ensure that unaccompanied minors are not returned prior to successful tracing of family members or without specific and adequate reception and care-taking arrangements having been put in place in Afghanistan.”
“…. It was agreed that chartered British flights carrying immigrants from the UK shall be allowed to land at Kabul Airport, unless vulnerable people (children, families, women without a male relative and individuals whose permanent residential areas are insecure) are boarded amongst the returnees.”
“…. It was agreed that the UK Government discontinues deporting Afghan vulnerable people, such as single mothers, children, elders, individuals whose living areas are under security risks and abstain from separating family members from each other.”
“On09 March 2015 , during a phone conversation, the British Prime Minister, David Cameron requested President Ghani’s agreement to the UK being allowed to continue non-voluntary returns to Afghanistan whilst MOU discussions took place.”
“It is clear therefore that the Afghan Government remains committed to accepting returns to Afghanistan and is content for the UK Charter to continue whilst the Afghan Government considers their internal policy position.”
“…. in order to update the Tribunal and the Applicants on developments in relation to the events set out in my first statement signed on18 March 2015 and second statement signed on17 April 2015 .”
“It is worth noting that the Afghan Government did not express any concerns about the April charter. The Ministry of Foreign Affairs provided permission on13 April 2015 . …… The Director General in charge of the Fourth Political Directorate at the [Ministry] confirmed that Minister Balkhi’s statement on security was not an established Afghan Government position on 18 March and 15 April as set out at paragraphs 16 and 6 of my first and second witness statements and confirmed that the UK could continue returns under the existing terms of our [MOU]. In addition, the Ministry of Refugees and Repatriation did not express any concerns with the 57 individuals on the list of returnees provided to them on19 April 2015 . This included not objecting to the return of individuals from 17 provinces.”
“… to request a Note Verbale from the [Ministry] which clearly set out the Afghan Government’s position on returns. [The First Secretary]explained that the recent Notes Verbales …. not only contradicted each other but also contradicted the [Director General’s] verbal assurances on 18 March and15 April 2015 …. [and] … indicated that this needed to be clarified as a matter of urgency.”
“…. also confirmed that Minister Balkhi’s views on security were not an established Afghan Government position.”
“The UK currently returns only single males who receive arrival, travel and reintegration assistance and can be successfully repatriated … We understand the new Minister of Refugees and Repatriation has expressed concerns about returning individuals from ‘dangerous provinces’ and concerns about returning ‘vulnerable groups’ and this has led to several Note Verbale from your Ministry asking the UK to impose several new return conditions. The UK Government is open to discussion but we do not believe new conditions can be imposed unilaterally and we would like to discuss any proposed changes as part of formal MOU negotiations.”
“The evidence submitted by the Applicants as to the interviews which Dr Schuser had with the Minister for Refugees and Repatriation is not disputed. However … the position has changed since that interview. Minister Balkhi … has since agreed that the charter would be accepted. The Ministry of Foreign Affairs [believes] it made sense to hold discussions about a new [MOU] after the UK elections. The [Afghan] Director General also confirmed that returns from the UK could continue in the meantime under the existing MOU.”
“Serious harm consists of (a) death penalty or execution; (b) torture or inhuman or degrading treatment or punishment of an Applicant in the country of origin; and (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”
“… a third country national … person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin … would face a real risk of suffering serious harm as defined in Article 15 … and is unable or, owing to such risk, unable to avail himself or herself of the protection of the country.”
“43. Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.”
“30. Furthermore, it should be borne in mind that the existence of an internal armed conflict can be a cause for granting subsidiary protection only where confrontations between a State’s armed forces and one or more armed groups or between two or more armed groups are exceptionally considered to create a serious and individual threat to the life or person of an applicant for subsidiary protection for the purposes of Article 15(c) of Directive 2004/83 because the degree of indiscriminate violence which characterises those confrontations reaches such a high level that substantial grounds are shown for believing that a civilian, if returned to the relevant country or, as the case may be, to the relevant region, would – solely on account of his presence in the territory of that country or region – face a real risk of being subject to that threat (see, to that effect, Elgafaji, paragraph 43).”
“…. The applicant ……….. (vi) Subject to subparagraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.”
“353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i). had not already been considered; and (ii). taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas”
“Disputed questions of fact do not normally arise in judicial review cases, but they can of course arise and they may be crucial.”
“In each case the Court has to make a judgment on the basis of the factual material before it. There are often gaps in the evidence. That is something with which the Court has to cope as best it can.”
“He is unwilling ……… in the Minister’s view ……” [Our emphasis.] This assessment is readily made from the text. It is reinforced substantially by later evidence. We refer particularly to the witness statements of Mr Chatterton Dickson and, especially, the accounts therein of discussions with other Afghan government members and representatives. Furthermore, subsequent events confound the words spoken by Minister Balkhi, namely the undisputed evidence of actual repatriations and how these unfolded on the ground. This evidence establishes clearly, inter alia, that Afghan nationals have been repatriated to provinces which Minister Balkhi had effective declared “off limits”
“….. Children, families, women without a male relative and individuals whose permanent residential areas are insecure ……….”
“…. Where there is in prospect a change of policy which is likely to materially affect the returns of those who fall into the categories identified above as ‘vulnerable’ ….. To remove such persons prior to that is unlawful and unreasonable where that issue goes to protection/ECHR claims and/or demonstrates that the ‘safety valve’ of exceptional circumstances under paragraph 353B [Immigration Rules] ought to be properly addressed.”
“This mechanism was deployed in the interests of orderly and efficient case management and with a view to inducing a decision of the Tribunal designed to encompass all members of the group.”
“On23 January 2008 the hearing in this appeal was concluded. On Friday4 April 2008 , after the members of the Appellate Committee had prepared drafts of the speeches which they proposed to deliver, the solicitors to the parties were notified that judgment would be given on 9 April. In accordance with the practice of the House, copies of the draft speeches were provided in confidence with a request that counsel check them for "error and ambiguity". On Monday 7 April the appellant's solicitors notified the Judicial Office that they proposed to submit a memorandum pointing out errors in the judgments but that it could not be submitted until the following morning. Judgment therefore had to be postponed until 16 April. The memorandum when it arrived, consisted of 27 paragraphs of closely typed submissions referring to three directives which had not been mentioned in the appellant's lengthy submissions to the House and repeating other arguments which had already been considered. It contains nothing which causes me to wish to change the views expressed in my draft speech. In my opinion the submission of such a memorandum is an abuse of process of the procedure of the House. The purpose of the disclosure of the draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case.”