(Immigration and Asylum Chamber) Appeal Number: AA/00165/2011
THE IMMIGRATION ACTS
Heard at Birmingham
On 29 May 2013
upper tribunal judge pitt
(Anonymity Order Not Made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Ms Fisher, instructed by Maliks and Khan Solicitors
For the Respondent: Mr Smart, Senior Home Office Presenting Officer
DETERMINATION AND REASONS
1. The Appellant is a citizen of Afghanistan born on 10 May 1984.
2. The appellant arrived in the UK on 15 March 2004. He claimed asylum on 15 May 2010. His application was refused on 17 December 2010.
3. His appeal against that refusal was dismissed by First-tier Tribunal Judge Deavin in a determination dated 15 February 2011. On 2 March 2011, Immigration Judge Peart granted permission to appeal the decision of Judge Deavin to the Upper Tribunal.
4. Upper Tribunal Judge King decided on 12 May 2011 that the decision of Judge Deavin disclosed an error on a point of law such that it should be set aside and re-made on the basis that none of the findings of Judge Deavin stood. In a determination dated 1 February 2012, the appeal was again dismissed by Deputy Upper Tribunal Judge O’Malley.
5. The appellant then sought permission to appeal to the Court of Appeal but this was refused on 2 May 2012 by Upper Tribunal Judge Taylor. The appellant then sought permission directly from the Court of Appeal. Permission was initially refused on the papers by the Rt Honourable Sir Scott Baker on 13 July 2012. Following an oral hearing, permission to appeal was granted by Lord Justice Richards on 18 October 2012.
6. In a consent order dated 13 December 2012, Lord Justice Davis ordered that the determination of Deputy Upper Tribunal Judge O’Malley be quashed and that the appeal should be remitted to the Upper Tribunal for redetermination. Thus the matter came before me to be made afresh, any previous findings having been set aside by the decision of Judge King dated 12 May 2011.
The Appellant’s Case
7. The Appellant’s case is set out in his four statements dated 19 August 2010, 27 January 2011, 31 October 2011 and 22 March 2013 which he adopted to stand as his evidence-in-chief at the commencement of the hearing. I also had before me the appellant’s screening interview and asylum interview record together with all of the other documents contained in his two appeal bundles and the respondent’s refusal letter. On the day of the hearing I was provided with Ms Fisher’s skeleton argument and a Country of Origin Information Response on Afghanistan dated 17 January 2013.
8. The appellant’s claim is that his father trained as a policeman and was also a member of Jamiat-i-Islami (JI). He served as a policeman under the regime of President Rabbani. He worked for a commander, Amir Anwar Nasiri. The appellant’s father also worked closely with Amanullah Gauzar, a sub-commander and a Tajik.
9. When the Taliban came to power in 1996, like many Pashtuns, the appellant’s father and Amir Anwar Nasiri went to work for them. Amir Anwar Nasiri and Amanullah Gauzar had already fallen out by this time and the bad blood that had arisen between them encompassed the appellant’s father. Amanullah Gauzar regarded the appellant’s father as a traitor when he joined the Taliban.
10. When the Taliban was overthrown in 2001, the appellant’s father left Afghanistan with many of his colleagues and went to Peshawar in Pakistan. After some time he managed to send news to his family that he had escaped. In 2002 he returned to the family home and remained in hiding for 3 weeks. He would then return every 3 to 4 months remaining for just one night.
11. In early 2003, a friend of the appellant’s father, Maulavi Said Karim, also a member of the Taliban, began to visit the family home. He told the appellant’s mother that his father wanted the appellant to join the Taliban. The appellant’s mother did not want him to do so.
12. After the fall of the Taliban, Amanullah Gauzar was on the government side as he had remained with JI who had been had been part of the Northern Alliance. In March or April 2003, approximately twelve of Amanullah Gauzar’s men came to the family home in trucks. About five of the men, armed, came into the home and became angry when the family said that they did not know the whereabouts of the appellant’s father. The appellant was beaten up and cut with a knife and maintains that he still has scars from this attack. Local people interrupted and Amanullah Gauzar’s men left. The appellant went to stay with his maternal aunt the same evening. His father stopped coming to the family home after this incident and the appellant has not heard from him since.
13. Maulavi Said Karim continued to visit the family home and told the appellant’s mother that his father had insisted that he be taken by force to join the Taliban. The appellant’s mother was told that if anyone prevented the father’s order, they should be shot. The same evening the appellant’s mother went to see him at his aunt’s home. She advised him to remain in hiding there. However, the appellant’s aunt feared further adverse interest, either from government forces or Maulavi Said Karim and, after a few days, said that she could not shelter the appellant any longer. The appellant’s mother and his aunt’s husband found an agent to take the appellant to the UK. Two weeks after Amanullah Gauzar’s men had come to the family home, he left Afghanistan. His journey lasted many months and he eventually arrived in the UK on 15 March 2004. After he came to the UK he learned that his father’s former commander, Amir Nasiri, and his son had been killed in Pakistan in 2004.
14. The appellant maintains that he fears return to Afghanistan as he will either be forcibly recruited by the Taliban or harmed by the government, as he will be assumed to support the Taliban, being additionally at risk because of the position of Amanullah Gauzar.
15. In coming to my conclusions with respect to the credibility of the appellant’s claim, I have taken into account all of the documentary and oral evidence and I have applied the lower standard of proof applicable to asylum claims. However, I reject the appellant’s account of the events for the following reasons.
16. As set out above, the appellant came to the UK on 15 March 2004 but did not claim asylum until 15 May 2010, over 6 years later. In addition, he claimed asylum only after he had been arrested by police. I did not find it at all credible that the appellant would have waited for over 6 years to claim asylum if the events set out in his claim had occurred. I find the timing of his claim in 2010, shortly after he was arrested by police, indicated that the claim was opportunistic and intended only to avoid removal rather than having any merit.
17. The appellant claims that he did not apply earlier as he was told that if he did so he would be removed to Afghanistan. His evidence in that regard was highly inconsistent and unreliable. He maintained in paragraph 4 of his asylum statement dated 19 August 2010 that he did not apply earlier as “other Afghan friends in the community told me if I claimed asylum I would be detained and deported”. He maintained at paragraph 28 of the same statement that on arrival in the UK he was given “misguided advice, telling me not claim asylum because I would be deported back to Afghanistan”. At question 122 of his AIR, the appellant stated that he did not claim earlier as “solicitors” had told him that he should not apply as he would be deported. At question 123 he was unable to name the solicitors but confirmed at question 124 that it was solicitors who had told him not to claim asylum. He indicated at questions 125, 128 and 129 that he had not thought to mention this seriously incorrect advice to his current solicitors.
18. In paragraph 16 of his witness statement dated 27 January 2011 the appellant changed this account again, stating that it was “some Afghani interpreters working in Shepherd’s Bush who told me not to claim asylum.” He changed his account still further, maintaining at paragraph 16 that he had told his current solicitors that he had been misadvised in the past but they had told him it was not important. He maintained that he had told the firm’s interpreter about this problem after the AIR but nothing further appears to have come from this, either. By the time of his witness statement dated 22 March 2013, the appellant’s evidence at paragraph 25 was that “people within the Afghan community” had given him “misguided advice” with no mention of either solicitors or interpreters. In oral evidence before me he stated that he had received bad advice from “some Afghan guys”, initially making no reference to solicitors or interpreters giving him this poor advice. It was then put to him in cross-examination that he had said in interview that solicitors had given him this bad advice. The appellant stated that it was interpreters who had been working for solicitors.
19. I found that this evidence could not in any way explain the appellant’s 6 year delay in claiming asylum. Further, at question 11 of his AIR the appellant stated that he came to the UK specifically because he had heard that “my asylum application will be accepted in the UK as they are human loving people (sic).” This is not consistent with what appears to have been an almost immediate change of mind about his claim being properly assessed in the UK when he arrived in March 2004.
20. The appellant maintains that since coming to the UK he has been unable to keep in touch with his family. However, the evidence he gave on this matter was also highly inconsistent and unreliable. His evidence about being out of touch with his family appeared to me to be intended to bolster his claim and that it was merely an attempt to show that he had no-one to return to in Afghanistan.
21. In his AIR at question 41 the appellant stated that he had not spoken to his uncle for a year. As the interview was conducted on 15 November 2010 that would have been in the autumn of 2009. The appellant was unable to give any reason at question 46 as to why he would not have contacted this relative for a year. In his witness statement dated 27 January 2011 the appellant stated at paragraph 13 that he had not contacted his uncle for a year as he did not want to put him in danger. If that was so, why had he contacted his uncle prior to this, for a number of years after coming to the UK? Why had he not stated in his AIR that he had not been in touch with his uncle for a year as he did not want to cause trouble for his uncle? This evidence indicated to me that the appellant was not credible as regards contact with his uncle or other relatives in Afghanistan.
22. Further, in his oral evidence before me, the appellant stated that he had last been in touch with his uncle “a year ago”. That would have been in the spring of 2012. If, as of January 2011 he had not wanted to contact his uncle because of the problems this might cause his uncle, why had he gone on to contact him in the spring of 2012, nevertheless? The appellant also stated at the hearing that he had not been in touch with his uncle as he had lost the telephone number of his uncle when he had moved house. He had tried to get in touch by other means but had failed. He made no reference to it being dangerous to contact his uncle, the earlier reason given for not being in touch.
23. The appellant’s evidence about when he had been in contact with this uncle was, in addition, highly inconsistent with his account of this uncle assisting him to obtain his father’s police documents from Afghanistan. In cross-examination before me, the appellant stated that he had been in touch with his uncle when he claimed asylum (May 2010) and asked for the police documents. This is not consistent with his claim in his interview conducted in November 2010 that he had not been in touch with his uncle for a year. It is not consistent with his claim in his witness statement dated 27 January 2011 that he had not been in touch with his uncle for a year.
24. There was a further problem arising from the appellant’s oral evidence about contacting his uncle around May 2010 when he claimed asylum in order to obtain his father’s police documents. His account at the hearing before me was that he telephoned his uncle to ask for his father’s police documents. His uncle somehow got the documents and then a friend, Sher Agha, had sent them to the appellant. The appellant stated in terms that he had not spoken to this friend about the police documents, only his uncle. He had given his uncle his address in the UK and his uncle had given this address to Sher Agha who had sent the documents to the appellant. At questions 154 and 155 of the AIR, however, the appellant stated that his friend Sher Agha went from the UK to Afghanistan and met the appellant’s uncle, told the uncle the appellant needed the police documents and then the documents were posted to him from Afghanistan by Sher Agha.
25. The appellant also stated in his AIR at question 39 that he was not in touch with his mother, younger brother or sisters who had moved to Jalalabad. He maintained at question 53 to 55 that he had not asked his uncle for an address for his mother and siblings and had not done so as his sisters were married and he did not have “any introduction” to the family of his sisters’ husbands and had not thought that he could contact his mother in this way. The appellant’s evidence is also that this uncle and his mother worked together to get him out of Afghanistan. He stayed in touch with his uncle for some years. His uncle provided significant help some 7 years after the appellant left Afghanistan by obtaining his father’s police documents. I did not find it at all credible that the uncle would not have assisted the appellant to have some kind of contact with his mother and younger brother and his sisters, even if his sisters had married and his mother and younger brother were living with the new relatives.
26. All of this evidence about contacting his family in Afghanistan suggested to me that the appellant was someone prepared to tell untruths in order to bolster his claim. I was fortified in this view by his own admission in evidence before me that when he was arrested in 2010, he lied to the police about when he had come to the UK, stating that it had only been a few months earlier, when it had been 6 years.
27. There were other aspects of the appellant’s evidence that indicated that his account was not credible. At the hearing before me, the appellant continued to rely on the witness statement of a distant relative, Mr Delvar Naseri. In his statement dated 31 October 2011, the appellant stated that Delvar Naseri knew his father “very well”, had lived close to the appellant’s family in Kabul, no more than 10 minute away, and had attended the same local mosque. He had last seen Delvar Naseri in Afghanistan in 2001 which is when Mr Naseri had left Afghanistan. In his witness statement dated 27 October 2011, Delvar Naseri confirmed these matters. He also stated that he knew that the appellant’s father was in the police and was a member of JI and served under Amir Anwar Nasiri.
28. At paragraph 6 of his statement, Mr Delvar Naseri indicates that:
“I continued to see the appellant’s father and the appellant who was a young man by the time I left Afghanistan in 2001.”
29. If that was so, it is very notable that Mr Naseri makes no reference at all to the appellant’s father having joined the Taliban when they took over in 1996 and worked for them until they were defeated in 2001. The fact that he makes no reference to this, despite both he and the appellant maintaining that he knew the appellant’s father “very well”, together with the other shortcomings in the appellant’s evidence, in my judgement, significantly undermined the appellant’s evidence as to his father being involved with the Taliban, a core aspect of his claim.
30. I accept that the documents provided by the appellant and the evidence of Mr Naseri show that the appellant’s father was in the police, graduating in 1989, was a member of JI and worked for the Rabbani regime in 1992 under the command of Amir Anwar Nasiri. This does not, however, support the claims concerning enmity from Amanullah Gauzar, his father following Amir Anwar Nasiri into the Taliban or the difficulties faced by the appellant in 2003, however.
31. I did not find that the country evidence or Dr Giustozzi’s expert report assisted the appellant. Dr Giustozzi’s report, consistent with the other country evidence, sets out that Pashtuns from Kabul did become members of Jamiat-i-Islami and, later, joined the Taliban; see paragraph 4 of his report. He sets out at paragraph 6 that Afghan sons will usually follow the allegiances and wishes of their father, considerable pressure being placed on them to do so. He considers that the son of a Taliban member would therefore be viewed as someone who had followed his father in supporting or joining the Taliban. Nowhere, however, does Dr Giustozzi express an opinion as to whether the appellant’s account of events in 2003 was credible or give an opinion on whether this appellant’s father joined then the Taliban. Rather, he takes the appellant’s account at its highest and assesses whether it would lead to a risk on return. The appellant’s account is relatively simple. The fact that it is consistent in some regards with the country evidence is not, in itself, sufficient to meet even the lower standard as regards credibility. That is additionally so where there are the shortcomings in the evidence as set out above.
32. In any event, Dr Giustozzi’s evidence at paragraph 7 on Amanullah Gauzar is not supportive of the appellant’s account, indicating that he obtained a position of power in 2006 rather than in 2003 which is when the appellant claims he sent armed men to his home to find his father. Further, the appellant claims that he will be forcibly recruited by the Taliban on return to Afghanistan. Dr Giustozzi rejects the likelihood of that happening in paragraph 18 of his report. Even the risk of adverse interest if the Taliban merely tried to contact the appellant is not suggested to be high by Dr Giustozzi, his assessment being only that “some” risk would arise therefrom.
33. The appellant has provided photographs of scars on his arms that he claims were incurred during the attack by Amanullah Gauzar’s men in 2003. Without medical evidence as to whether these scars are in any way consistent with the manner in and date at which the appellant claims they were incurred, I did not find any weight could be placed on this part of the appellant’s evidence.
34. For the above reasons I concluded that the appellants claim that faces adverse interest from either the Afghan government or the Taliban is not credible. There is no reason to believe that he does not have family members, both immediate and more distant, available to offer him support on return. He cannot qualify for asylum or on the basis of Article 3 of the ECHR as a result. He cannot qualify for Humanitarian Protection; see AK (Article 15(c)) Afghanistan CG  UKUT 00163(IAC).
35. The Appellant came to the UK when he was 19 years old and is now 28 years old. I accept that he has established a private life in the UK during this time, albeit there was nothing before me to show much substance to that private life. None of those vouching for his good character attended the hearing to provide any further detail to their somewhat basic statements. There was nothing to suggest that he has a family life with anyone in the UK.
36. I accept that the low threshold for finding that the decision engaged Article 8 further was reached, that the interference was in accordance with the law and that it was necessary in order to maintain an effective immigration system.
37. I did not find that the appellant’s removal would amount to a disproportionate interference with his right to a private life. I do not accept that he or any of his family faced any difficulties in Afghanistan. I do not accept that the appellant’s family left their home in Kabul or that he cannot contact any of his family. He will be able to return to his family and be supported by them on his return. He lived in Afghanistan for by far the majority of his life. He can be expected to re-establish a private life there of more substance than that he has in the UK. He has been in the UK illegally throughout and made an unsubstantiated asylum claim. I found that his return to Afghanistan would be a proportionate interference with his private life.
38. I re-make the appellant’s appeal.
39. I dismiss the appellant’s asylum, human rights and humanitarian protection claims.
Signed Date: 6 June 2013
Upper Tribunal Judge Pitt