Case No. UKUT-00286-(IAC)

1. The appellant is a citizen of Afghanistan, who was born on 1 January 1989 and is now aged 27. He was encountered by immigration officials on 8 January 2007 concealed in the back of a lorry and was notified of his liability to be removed. At interview he claimed that he was 17 years of age but an age assessment concluded that he was over the age of 18. He claimed asylum but his application was refused on 29 May 2007. He appealed against that decision on asylum and human rights grounds, his appeal was dismissed and reconsideration was refused. His statutory rights of appeal became exhausted in October 2007. Eventually, in February 2011, the appellant sought judicial review of the respondent’s refusal to treat his further submissions as a fresh claim. Those were summarily refused by Thirlwall J on 1 June 2011 who considered that the respondent’s decision-making process had been lawful, that the proceedings were bound to fail and that renewal would not operate as a bar to removal. 2. It was at this stage that the Afghanistan Islamic Cultural Centre (AICC) sought to intervene as an interested party in support of further submissions which resulted in a hearing on 11 November 2011 at which permission to seek judicial review was ordered, it being arguable that the Secretary of State had unlawfully failed to take into account the benefit that the appellant provided to the community and the impact on the community of his removal, demonstrated by numbers of letters of support and a petition, signed by some 945 signatories in terms that the appellant ‘ contributed to serving our community, maintaining a peaceful and harmonious society ’. The Secretary of State agreed to reconsider the claim and a further decision was made on 17 August 2012 refusing his claims both under the Refugee Convention and the ECHR. This was subject to an appeal which was heard on 1 February 2013. At the appeal hearing, the appellant withdrew his asylum claim as well as his claims under Articles 3 and for humanitarian protection. 3. The appellant then placed reliance on Articles 8, 9 and s. 13 of the Human Rights Act. In support of this application he submitted a report of April 2009 dealing with the Afghan Muslim community in England, a report to which I shall make reference later. Eventually, the respondent conducted a comprehensive reassessment of the case and a further decision was made as long ago as 20 September 2013. On 24 September 2013 the Secretary of State issued removal directions. 4. The appellant appealed against these decisions repeating the claim that his removal would be a breach of his rights under Articles 8 and 9 of the ECHR and s. 13 of the Human Rights Act 1998. 5. First-tier Tribunal Judge Petherbridge promulgated his decision dismissing the appellant’s appeal on 25 May 2014. Subsequent to a successful challenge in accordance with the principles identified in Cart v The Upper Tribunal [2011] UKSC 28, permission to appeal to the Upper Tribunal was granted by Mr C. M. G. Ockelton, the Vice President, on 21 May 2015. In granting permission to pursue the Cart challenge, Singh J identified a double failure to address Article 9 of the ECHR as well as s. 13 of the Human Rights Act. 6. Deputy Upper Tribunal Judge Saini decided on 19 August 2015 that Judge Petherbridge’s decision should be set aside adopting as his reason the Judge’s failure to address Article 9 and s. 13. Both Article 9 of the Convention and s.13 of the Human Rights Act 1998 are largely unfamiliar to practitioners and this is one of the few cases to come before the Tribunal which expressly raises these provisions as a distinct and separate challenge to the respondent’s removal decision. It was only this aspect of the appeal that was pursued before me.