AA/00221/2016

• Status of case: Unreported
• Hearing date: 1 Dec 2016
• Promulgation date: 25 Jan 2017
• Publication date: 17 Aug 2021
• Last updated on: 17 Aug 2021

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00221/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 1 December 2016
On 25 January 2017




Before

UPPER TRIBUNAL JUDGE ALLEN

Between

imran [y]
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Mr T Lay, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr S Whitell, Senior Home Office Presenting Officer


DETERMINATION AND REASONS


1. The appellant is a national of Afghanistan. He appealed to a Judge of the First-tier Tribunal against the respondent's decision of 21 January 2016 refusing further leave to remain in the United Kingdom. The judge dismissed his appeal, attaching particular weight with regard to the protection claim on the earlier decision by a First-tier Judge in 2011 on an upgrade appeal. As regards the Article 8 claim, the judge concluded that the factors weighing in the appellant's favour were outweighed by the respondent's right to exercise effective immigration control and as a consequence dismissed the appeal.

2. The appellant sought and was granted permission to appeal on the basis first that the judge had attached undue weight to the earlier decision and had failed to take account of subsequent country guidance in AA [2012] UKUT 00016 (IAC) which was relevant bearing in mind that, though the appellant was 18 by the time of the hearing, there is no bright line distinction between a person who was almost 18 and a person who was just 18, and there was evidence before the judge as how the appellant appeared to be young and vulnerable looking. In addition it was argued that the judge had failed to make clear findings as to whether or not he accepted that the appellant would have family to whom he could return if he were removed to Afghanistan and had also erred in finding that the appellant could safely relocate. Criticism was also made of the Article 8 findings with regard to paragraph 276ADE(iv) and it was argued that, given his age and circumstances there would be very serious obstacles to his integration in Kabul. The assessment of Article 8 outside the Rules was also argued to be flawed on the basis that the wrong test had been applied and there was a lack of reasoning. Permission was granted on all grounds.

3. In his submissions Mr Lay argued that permission had been granted on the basis the judge was obliged to deal with the matters that had been raised in the skeleton argument rather than essentially basing herself on the determination in 2011. Two aspects of the protection claim were advanced: first with regard to the asylum claim and also the position of the appellant as a vulnerable young returnee to Nangahar. Clearly the judge had to have regard to the earlier determination, but the country guidance in AA was more generous than the position in 2011 with regard to risk categories concerning children. The treatment of the 2011 determination as determinative was therefore problematic. Also there was not a full consideration of the alternative protection claim and the claimant was vulnerable. In addition there was mention of Article 15(c) at paragraph 57 of the skeleton argument with regard to risk on return to Nangahar, and that had not been addressed.

4. On the appellant's behalf it was argued that the 2011 determination lacked clear findings of fact. There was no clear finding on credibility and whether the appellant had family support in Kabul. In any event there was fresh oral evidence in 2016 about contact with the lost family, and a fresh analysis was required with regard to support in Kabul. There was no finding in the current determination as to whether there were any family members who could help the appellant in Nangahar as the focus was on Kabul, but a lot had been said about his current circumstances.

5. As a separate point, since the appellant was just 18 at the time of the determination the judge should have considered whether to treat him essentially as a child. Within this regard the witness statements were relevant and it was not enough to say he was an adult purely and simply.

6. The assessment of paragraph 276ADE lacked full reasoning with regard to very significant obstacles. The appellant had been only 13 when he came to the United Kingdom. The judge did not say he could go to Nangahar but said he could go to Kabul so it was necessary to consider obstacles to him living there for the first time as an adult who had been in the United Kingdom since the age of 13. The evidence of Antonia Young required to be considered.

7. The judge accepted that the appellant had family life with his foster family but there was no analysis of the proportionality of that separation. He had a maternal uncle in Kabul but not his mother. It was necessary for there to be a full Article 8 assessment outside the Rules and that would need to be consistent with former children cases as he had only recently become an adult. In effect the 2011 decision had been treated as a finishing point and not a starting point.

8. In his submissions Mr Whitwell argued that the submissions went beyond the grounds with regard to the reference to Article 15(c) and the challenge to the lack of reasoning concerning very significant obstacles. He relied on the Rule 24 response. No material error of law in the determination had been identified. It was clear from paragraph 12 of the judge's decision that Counsel had not sought to persuade the judge to depart from the previous determination and factual findings in respect of the asylum claim and at paragraph 27 background evidence had not been identified that would enable a finding that the appellant would face very serious obstacles to his integration if returned to Afghanistan. The grounds complained about matters of weight and that was a matter for the judge. The Devaseelan guidance had been properly applied.

9. To an extent the issues raised in Article 8 were parasitic on the matters with which grounds 1 and 2 are concerned. If the Tribunal agreed with Mr Whitwell with regard to grounds 1 and 2 then ground 3 could not succeed. It was unhelpful that the judge had employed concepts from Article 8 for example the reference to very serious obstacles to integration, in the course of the evaluation of the protection claim, but that was to be found in the human rights section of the determination. Paragraph 25 was of relevance setting out as it did the public interest question and the relevant factors there. The appeal should be dismissed.

10. By way of reply Mr Lay argued that the substantive protection points made in the skeleton had not been conceded, as the judge had accepted. It was unclear exactly how the hearing had proceeded. The errors of law complained of concerning the proper application of the Devalseelan guidance and a failure to deal with AA and the bright line point. The skeleton raised paragraph 276ADE and that assisted with regard to Article 8 even if there was no appeal on that. Evidence about the problems that would be faced in Kabul had been put to the judge. There were also the subjective issues with regard to the appellant's circumstances. It was accepted that the Article 15C reference was rather a buried point in the skeleton. However many significant matters had not been dealt with and the appeal should be allowed and the matter remitted.

11. I reserved my determination.

12. It will be helpful to begin with the decision of the judge in the upgrade appeal in 2011. It is right to note, as Mr Lay has pointed out, that there are no clear credibility findings in that decision. The judge noted some inconsistencies in the appellant's interview but reminded himself that he had to be very cautious about credibility bearing in mind the appellant's age and he had decided that no reference could be made to section 8 of the 2004 Act in that regard. Essentially he based his decision on internal relocation, saying that even if the appellant's account was true or mainly true, on the basis of the relevant country guidance it had been found that appellants could safely relocate to Kabul. He noted that the appellant was clearly a resourceful young man who had travelled halfway across the world, entering various countries, and appeared to have integrated himself relatively well in British society and that he would be able to the same in Kabul, where he had an uncle and also he had two uncles in Jalalabad. He considered that there was no reason not to believe that the appellant's family would not travel to Kabul to meet him there on return. He was not satisfied the appellant could not contact his family in Afghanistan particularly as he had a family member currently living in London who provided the wherewithal for the contact on the previous occasion.

13. In the skeleton argument before the judge in 2016 the Devaseelan guidance is noted, and also the fact that the judge did not in fact make any credibility findings but took the case at its highest and concluded that the appellant could internally relocate. It was argued that the claim was credible and plausible, and also that the guidance in AA was relevant with regard to the risk of ill-treatment of lone children. The point was made that the appellant had had no contact with his family since a call with his mother in 2011, that Jalalabad where he had two uncles was only 30 minutes or so from his home village and it was reasonably likely that he would not be safe there from the Taliban, and he had never had any contact with the paternal uncle who lived in Kabul. The "bright line" point from KA [2002] EWCA Civ 1014 was also made with regard to the potential ongoing vulnerability of a person who was still only 18 who it was said faced the same risks as a child particularly from the statements in the bundle indicating that he appeared to have certain vulnerabilities.

14. The judge at paragraph 12 noted that no new evidence had been identified that would have enabled a departure from the first judge's findings and concluded, applying the Devaseelan principles, that in respect of the protection element of the appeal the appellant was seeking to rely on facts which were not materially different from those before the first judge and that he should regard those issues as settled by the determination of the first judge and make findings in line with that. But essentially that was all the judge said about the protection issues in the case, having noted what had been said by the judge in 2011.
15. The difficulties with this approach in my view are essentially those as set out in the grounds and developed by Mr Lay. The judge in 2011 did not make clear findings on the credibility of the claim. He noted the presence of two uncles in Jalalabad and an uncle in Kabul and the fact that the appellant had spoken to his mother on the telephone and adverted to the likelihood that the family would travel to Kabul to meet him there on return. By contrast it was said in 2016 that the appellant had had no further contact with his family since 2011, he had never had any contact with the uncle in Kabul, and there was potential risk from the Taliban in Jalalabad where he had two uncles. To these points require to be added the AA issue as to risk to lone children, the bright line point, and the evidence as to the appellant's appearance and the vulnerability that he presented. None of these matters either separately or cumulatively is in any sense a killer point for the appellant. But they were matters that required to be evaluated by the judge rather than, as she essentially did, taking the 2011 determination as determinative. We do not know exactly how the hearing was conducted, but it is clear that there are were number of points made over several pages in the skeleton argument concerned with the protection issues which appear not to have been taken into account by the judge. These are matters that require to be considered by a judge in a proper evaluation of this claim. To that extent the determination is marred by an error of law.

16. I am less concerned with the points made with regard to the Article 8 claim. In essence I think the judge carried out a careful and thorough evaluation of the issues and this was done in the context of the relevant legal tests. However it seems to me that if the protection issues are to be re-heard and argued then that will inevitably have some implications for the Article 8 points, and therefore I consider that the proper resolution of this appeal is that the matter will have to be reconsidered in its entirety by a First-tier Judge other than Judge Morgan at Taylor House.

No anonymity direction is made.





Signed Date


Upper Tribunal Judge Allen