Case No: C5/2013/0568
Neutral Citation Number: [2013] EWCA Civ 1297
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
[Appeal No: AA/05797/2012]

Royal Courts of Justice
Strand, London, WC2A 2LL

Friday, 26th July 2013
Before:

LORD JUSTICE BEATSON

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	MK (Afghanistan)	
Appellant	
	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent
	
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Andrew Gilbert (instructed by JD Spicer Zeb) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented
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Judgment
Lord Justice Beatson:

1.	This is a renewed application for permission to appeal against the refusal of the Upper Tribunal to give permission to appeal a decision of the First-tier Tribunal.  The FTT held that the applicant, an Afghan national now aged 17 but aged 16 at the date of the tribunal decision, could be returned to Afghanistan, notwithstanding the current position on the return of minors to Afghanistan, having regard to the adequacy of reception facilities in Kabul and the likelihood of assistance by family members.  The decisions, in particular the Upper Tribunal in HK & Ors [2010] UKUT 378 and [2012] EWCA Civ 315, show that the issue was whether, if children had family in Afghanistan, they would be willing and able to receive and protect them.  They involve inferring that where children did have family resident in Afghanistan and that family member had been involved in some way in the welfare and life of the young person, and that there was no evidence that that person was unable or unwilling to receive and assist, notwithstanding the problems of reception facilities in Kabul, a young person could be returned.

2.	In the present case, the position is that MK’s father is resident in this county.  He was given indefinite leave to remain on 13 January 2011 under the legacy scheme operated by the Home Office and its agencies.  The First-tier Tribunal stated at paragraph 20: 

“The Appellant’s father however is in the United Kingdom and if the Appellant now relocated to Kabul then his father could go back to Afghanistan to be with him and to support him there or his father, who is working in this country, could financially assist the Appellant in Kabul and ensure that he had sufficient money so that he could be accommodated and supported in Kabul.”

The Upper Tribunal in paragraph 8 stated: 
“The appellant’s representatives had not suggested that the father could not return to Kabul and it was for [him]...to make that argument and to provide relevant evidence to that effect.” 

The Upper Tribunal stated that because the appellant’s father had ILR in this country on the basis of the legacy exercise, there was no evidence to show that he could not return to Kabul.

3.	Mr Gilbert this morning submits that the First-tier Tribunal either found that the father could return with him or could provide financial support, but did so on the basis of an inference, because there was no evidence as to the father’s means or intent either to provide finance or to return to Afghanistan.  He submits that the tribunal was required to assess the likelihood that the applicant would in fact be unaccompanied if returned and that the findings it made were without evidential support.

4.	I have concluded that, in the somewhat unusual circumstances of this case, there is an issue of principle for the full court to consider.  That issue is the approach to the risk on return to Afghanistan of a child who does not have family resident in Afghanistan but where there is evidence of family resident outside Afghanistan, and in particular whether it is right to infer that the family, in this case the father, could return or could support without positive evidence, and on whom the burden lies.  It may be that the upshot will be that the full court will hold that the burden was indeed on the applicant to show that the person who is physically able to return does not want to.  That, however, is a matter for the full court to determine.

5.	I therefore grant permission.  Subject to any further representation by Mr Gilbert, this case should be listed for half a day.  The constitution should be a three-judge court, one of whom may be a High Court judge, and one of whom should have immigration law experience.

Order:  Application granted