The Court of Appeal (CoA) dismissed the Home Office’s challenge to a deportation order, ruling that it cannot challenge expert evidence when it asserts that an individual’s history of trafficking, mental health vulnerabilities, and a “Westernised” identity create a real risk of inhuman treatment upon their return.
Facts:
Kamran Safi, an Afghan national, arrived in the UK as a child and claimed asylum on arrival. His background is marked by extreme trauma, as his father was murdered by the Afghan army. He was a confirmed victim of childhood trafficking, sexual abuse, and modern slavery during his journey to the UK. Mr. Safi continues to suffer severe mental health issues, having been diagnosed with complex post-traumatic stress disorder (PTSD) and mild depression.
This analysis was, however, not accepted by the Home Office in apparent denial that his removal would engage Articles 2, 3 or 8 of the European Convention of Human Rights (ECHR). Mr. Safi was originally granted three years’ discretionary leave to remain (DLR) on the basis that he was an asylum-seeking child.
In 2016, Mr. Safi was convicted of aggravated burglary and theft, receiving a prison sentence of six years and six months. Following this conviction, the Home Office served him with a deportation order, arguing that his presence in the UK was not conducive to the public good and that there were no compelling circumstances to outweigh the public interest in his removal. Mr. Safi challenged this deportation on human rights grounds, specifically citing Articles 2 and 3 of the ECHR. He argued that as a “Westernised” individual with no family support and significant mental health vulnerabilities, he would be at real risk of being targeted by the Taliban, re-trafficked, or else left in a state of terminal destitution upon his return to Afghanistan.
Mr. Safi appealed to the First-tier Tribunal (FTT) under the Nationality, Immigration and Asylum Act (NIAA) 2002, which found in favour of Mr. Safi. The Secretary of State appealed to the Upper Tribunal, which also ruled in favour of Mr. Safi. The Secretary of State appealed to the CoA.
Decision:
The CoA dismissed the appeal, ruling that the FTT had reached a decision, based on a massive body of expert evidence, that the Home Office had failed to challenge at trial level. Mr. Safi had provided no fewer than five expert reports addressing his mental health, the risk of re-trafficking, and the dangers of returning to Afghanistan. Relying on the Supreme Court ruling in TUI UK Ltd v Griffiths, the Court held that, since the evidence was “unchallenged,” the FTT Judge was perfectly entitled to accept the experts’ conclusions as fact. Thus, the Home Office could not subsequently complain about a judge’s reasoning when they had provided no counter-arguments during the initial hearing.
The Home Office had argued that a “single healthy male” is not at risk from general poverty in Afghanistan. The Court found this argument to be irrelevant to Mr. Safi’s specific case as, while widespread poverty alone is not enough to stop deportation, Mr. Safi’s specific combination of trauma and mental illness meant that he faced a “real risk” of intense suffering or re-trafficking, crossing the threshold of an Article 3 ECHR breach.
Implications:
This case is a powerful reminder that the quality and “unchallenged” status of expert evidence can be more influential than a specific criminal history. In future, even where a client has a serious criminal record, this case provides a roadmap for successfully resisting deportation on Article 2 and 3 ECHR grounds.
The most significant takeaway is the strategic importance of the Supreme Court’s ruling in TUI UK Ltd v Griffiths. If a person serves comprehensive expert reports and the Home Office fails to cross-examine the experts or provide rebuttal evidence, the tribunal is largely bound to accept those expert findings.
This case provides a blueprint for moving beyond “general country conditions,” which are often dismissed by the Home Office, as this often relies on a CPIN (Country Policy Information Note), stating that healthy males are safe. The case of Safi shows that mental health and childhood trauma effectively strip away that “healthy male” label, making an asylum seeker “exceptionally vulnerable”.
