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Court of Appeal grants permission to appeal in Naziri and Others on returns to Afghanistan


Lord Justice Clarke grants permission to appeal and interim relief staying the removal of 30 appellants in Naziri & Ors

Date of Publication:
24 August 2015

Court of Appeal grants permission to appeal in Naziri and Others on returns to Afghanistan

24 August 2015

Duncan Lewis solicitors reported last week that Lord Justice Clarke granted permission to appeal in the recent Upper Tribunal case R (on the application of Naziri and Others) v Secretary of State for the Home Department (JR – scope - evidence) IJR [2015] UKUT 00437 (IAC).

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The case concerned the subject of removing Afghan nationals from the United Kingdom to Afghanistan in the light of increasing violence in the country.

According to Duncan Lewis, Lord Justice Clarke granted permission to appeal on six separate grounds, and also granted interim relief staying the removal of all 30 appellants involved in the case pending the outcome of the appeal.

Duncan Lewis advised all Afghan nationals scheduled to be removed on a charter flight on 25 August 2015 to obtain legal advice and to consider relying upon the order to challenge their removal.

Right to Remain reported in an update on Saturday that the Home Office attempted to appeal the judge's stay on removal, but this was refused and the judge further granted a generic stay in respect of anyone on the 25 August charter flight from any province other than Kabul, Bamyan, Panjshir who doesn't want to return.

The Upper Tribunal noted in the case of Naziri and Others that the most recent country guidance decision relating to Afghanistan (AK (Article 15(c) Afghanistan) [2012] UKUT 00163 (IAC)) held that while there had been a deterioration in the general security conditions prevailing in the country, there was an insufficient degree of violence in Afghanistan as a whole to overcome the threshold in Article 15(c) of the Qualification Directive.

The Tribunal further added in Naziri and Others: "Within the limitations of a judicial review challenge and the hearing which has taken place we find no warrant for departing from the current country guidance promulgated in AK. In particular, we find that the evidence falls short of satisfying the stringent Article 15(c) test."

Last week, the Home Office published updated country information and guidance on the security and humanitarian situation in Afghanistan (available here for EIN members).

The Home Office guidance quoted directly from Naziri and Others when considering whether indiscriminate violence in Afghanistan was at such a level as would cause a real risk of harm which threatens the life of a person solely by being present there.

The Home Office acknowledged that the number of civilian deaths and injuries in Afghanistan has increased since the promulgation of AK, but says the proportion of civilians directly affected by violence remains low, with the toll of deaths and injuries in 2014 representing 0.03% of the population.

The Office of the United Nations High Commissioner for Human Rights and the United Nations Assistance Mission in Afghanistan reported earlier this month that civilian casualties in Afghanistan remained at record high levels in the first half of 2015.

For in-depth considerations of Article 15(c) of the Qualification Directive and international protection issues, see the April 2015 blog post here on the European Asylum Support Office's (EASO) judicial analysis.