Summary
The Secretary of State for the Home Office was appealing the decision of the First Tier Tribunal (‘FTT’) to allow the Respondent’s appeal on Article 2 and 3 ECHR grounds against his deportation to Afghanistan. The Home Office did not seek to challenge the Respondent’s experts by requiring either of the experts to attend for cross-examination.
Learning points for instructing parties
The case
The Secretary of State for the Home Office was appealing the decision of the First Tier Tribunal (‘FTT’) to allow the Respondent’s appeal on Article 2 and 3 ECHR grounds against his deportation to Afghanistan. The decision was appealed, initially to the Upper Tribunal (‘UT), and then to the Court of Appeal.
Expert evidence
The Respondent served “a substantial body of carefully argued expert evidence” at the FTT direction hearing, particularly expert reports from Mr F and Dr P. The judge noted that, in this case, the Home Office did not lose because of any general finding that adult male Afghans who are convicted of a serious offence in this country cannot be deported to Afghanistan, but because it did not seek to challenge the Respondent’s experts by requiring either of the experts to attend for cross-examination. “In those circumstances”, the judge noted, “the [Home Office Presenting Officer] was inevitably in difficulties in putting forward arguments contrary to what the experts had written: see TUI UK Ltd v Griffiths [2025] AC 374 [2023] UKSC 48 at [70].
Th expert report of Dr P stated that:
“Based on my professional expertise, I conclude that if Mr Safi were removed to Afghanistan, he would be at a high risk of being re-trafficked since there are several indicators ranging from his young age, sexual abuse, route to Europe and criminalisation that demonstrate he is a potential victim of trafficking. Moreover, his state of mental health and the lack of mental health infrastructure in the country makes him more vulnerable to be re-trafficked. […] All these factors demonstrate that there is more than a plausible risk of persecution for Mr Safi if he were removed to Afghanistan.”
Dr P also stated that vulnerable men have been significantly more susceptible to being exploited, abused and forced into labour since the Taliban's rise to power in August 202
Mr F's evidence was that the degree of Mr Safi's Westernisation gave substantial grounds for believing that there is a real risk of mistreatment which would breach Article 3.
The judge concluded that “[i]t may be that some of these conclusions, particularly on the consequences of Westernisation, could have been subjected to challenge in the FTT, but the judge had to deal with the case on the basis that there was little if any challenge. In those circumstances, in agreement with the UT, I do not consider that in accepting the expert evidence, particularly that which was specific to the Respondent, the FTT made any error of law.”
Judge’s decision
The judge agreed with the UT that the FTT’s reasoning was sufficient to indicate why the appeal was allowed, noting that the FTT judge had to decide, “on the evidence placed before him”, whether there was a real risk on return of Mr Safi being killed (Article 2) or subjected to inhuman or degrading treatment (Article 3).