Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00273/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 7 February 2017
On 8 March 2017

Before

Upper Tribunal Judge Southern

Between

A M A
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms H. Foot, counsel
For the Respondent: Mr T. Melvin, Senior Home Office Presenting Officer

DECISION

1. The appellant, who is a citizen of Morocco born on 27 March 1996, arrived in the United Kingdom on 12 March 2011 concealed in the back of a lorry. He claimed asylum soon after arrival. That claim was refused but he was granted discretionary leave to remain until 26 October 2013 as an unaccompanied minor. His appeal against refusal to grant further leave both on asylum and human rights grounds came before First-tier Tribunal Judge Wilsher on 14 June 2016. The judge allowed his appeal on article 8 ECHR grounds but dismissed his appeal on asylum grounds. He has been granted permission to appeal against the rejection of his protection claim because Upper Tribunal Judge Kamara considered that:

“It is arguable that the reasons provided by the judge at [19] for dismissing the asylum claim were inadequate in view of the expert evidence provided.”

2. The respondent sought but was refused permission to appeal against the decision to allow the appeal on article 8 grounds and so it is anticipated that, regardless of the outcome of this appeal, the appellant will be granted some form of leave as a consequence.

3. The immigration history of the appellant is, of course, well known to the parties and is set out in some detail at paragraph 3 of the decision of Judge Wilsher. For present purposes the following summary, which is not a complete one, will suffice. The appellant was born in Tangiers where he lived with his family, comprising parents and two elder sisters. His father left the family home when the appellant was young, although he continued to visit and was violent towards both the appellant and his mother. The appellant had just 2 years schooling between the ages of 7 and 9 after which he found work helping out at a garage. At this point the appellant left home and was living “rough” on the streets with other street children in the port area of Tangiers. These street children were regularly arrested, on an arbitrary basis, and assaulted by local police and there would also be fighting between rival gangs, the appellant himself twice being stabbed. Eventually, having decided to travel to Europe, he boarded a lorry that took him to Spain where he soon found himself living on the streets of Barcelona where he became involved with drug taking and crime. He then travelled by train to France and eventually managed to board a lorry that took him to Ramsgate. He arrived on 12 March 2011 then aged 14.

4. Initially, he was placed by social services with a family in Ramsgate but he did not get on with them and so moved to London. Various attempts, mostly unsuccessful, were made to place him in suitable living arrangements until he was placed with foster parents in Southall with whom he has established a lasting bond and relationship. The judge recorded that not long before the hearing the appellant had left those foster parents and moved to independent accommodation, sharing a housing association flat with two other young men.

5. Thus, at the date of the hearing before the judge the appellant was no longer a minor but was a young adult aged 20 years.

6. It can be seen that the decision of Judge Wisher is mainly concerned with the article 8 claim that he found made out. For the appellant, Ms Foot confirmed that the brief summary of the asylum claim set out by the judge at paragraph 3(e), was an accurate one:

“The appellant said as part of his asylum claim that he cannot return safely to Morocco because he had no contact with his family. He said that he would end up back on the streets at the port and be in danger from the police and from other gang members. He also said that living on the streets using drugs and stealing to survive was a very difficult lifestyle. He said that what he feared amounted to persecution and that being a Morocco street child was a member of a social group.”

Ms Foot clarified how that claim was put: The fact that the appellant had experienced, and expected to experience on return, arbitrary detention and assault at the hands of the police, agents of the state, on account of being perceived as being a member of the street children community meant that this amounted to persecution for a reason recognised by the Refugee Convention. Although he would not be a child on return, there is no bright line between children and young people living on the streets and so that would not be a basis to assume that the risk would be any less.

7. At paragraph 13 of his decision, the judge made some clear findings of fact. He accepted the account given by the appellant of his experiences in Morocco:

“… Therefore he was effectively a Moroccan street child from the age of about 10 until 12 when he left. He lived in a port area where there was extensive violence and he was stabbed on two occasions. He witnessed a number of extreme acts of violence. He was engaged in substance abuse. He lost contact with his family to a large extent other than by phone… I find that he has now lost contact with his mother and sisters. If returned, he would seek to find them but it is not clear that he would be able to do so. “

8. The findings made by the judge in respect of the asylum claim were certainly concise, and are to be found at paragraph 19 of his judgment:

“I was asked to consider the asylum claim. I indicated at the hearing that I found that although I accepted his account that he did have a well-founded fear of persecution when he left Morocco, given that he is now much older and has developed greatly as a person and educationally, I did not find it reasonably likely that he would return to life in the port but rather he would seek to re-establish a connection with his family or independently secure employment. I did not find he was at real risk of becoming homeless and in danger again.”

Earlier in the determination the judge had observed that the appellant is able to speak English and has studied in the United Kingdom. He is presently studying level 3 NVQ and when completed those studies will be a qualified plumber. That would enable him to support himself.

9. The grounds upon which the appellant sought and was granted permission to appeal are that in reaching those conclusions the judge failed to have regard to material evidence, that being two reports of an expert witness, Dr David Seddon, or to give any reason for rejecting that evidence. The first of those reports is dated 7 February 2014 and so was 2 years and 4 months old at the date of the hearing and, no doubt because of that, an addendum report was commissioned, that being Dr Sedden’s second report dated 25 February 2015. As Mr Melvin observed in his submissions, that report was a year and 4 months old at the date of the hearing before Judge Wilsher. In her submissions, Ms Foot confirmed that the key aspects of this evidence are those identified in the grounds for seeking permission to appeal. This evidence of Dr Sedden is summarised in the grounds as follows:

I devoted considerable space in my original report to the difficulties I believed that he was likely to face as a minor returning to Morocco; he is now a year older but most of those comments still pertain. While strictly he is now an adult, he would be vulnerable in very much the same way as he would have been at the age of 17

(Regarding the availability of support from charities and NGOs): as a young adult he would receive even less attention and would be, in my opinion, arguably even more vulnerable.

He would find it extremely difficult on return to find employment even if he were to secure his plumbing qualifications. In 2012, the World Bank’s vice president described youth unemployment in Morocco “a very serious problem”. A World Bank report, published in June 2012 said that 30 per cent of Moroccans aged between 15 and 29 were unemployed… Abdel is unable to write in Arabic and has limited reading skills this would obviously further limit his employment prospects in an already difficult job market.

(although I should mention that the extract reproduced in the grounds omitted that the vice president cautioned that those statistics “did not reflect a key aspect of the problem, namely that many of those out of work had given up on the labour market”)

... if he were to revert to his previous way of life, living on the streets and in the port… he would be of immediate adverse interest to [the police]

I confirm my view that Abdel would remain at risk of harm in Morocco notwithstanding that he is now an adult … As a vulnerable young person, Abdel will remain at risk of destitution and exploitation.

It should be recognised, though, that this final comment was prefaced with an observation by Dr Sedden saying “should he revert to his previous life living on the street in Tangier…”

10. It is plain that the judge had regard to Dr Sedden’s evidence because he made specific reference to it at paragraph 15:

“… I note the two expert reports by Professor David Seddon which were aimed at corroborating the appellant’s account of his time in Morocco and the difficulties faced by street children there. I however concluded for reasons set out below that the situation in Morocco upon return is no longer one that attracts a risk of persecution that it ever did in the past.”

11. As Ms Foot points out, it appears that the judge regarded the evidence of Dr Sedden as supporting the appellant’s historic account of experiences in Tangiers as a street child and he may not have appreciated that this witness offered his expert opinion also in respect of the circumstances in which the appellant would find himself on return to Morocco. If so, that would be an error of law because as the appellant relied upon that evidence in respect of the assessment of risk on return, he was entitled to see that the judge had regard to it. The real question, if it is an error of law for the judge not to have engaged specifically with that aspect of Dr Sedden’s evidence, is whether that error was material to the outcome of the appeal.

12. Dr Sedden’s view that the appellant would be at risk on return as a street child, even though he was no longer a child, was predicated upon the expectation that he would find himself homeless and back on the streets of the port area in Tangiers. But the dispositive finding of fact made by the judge was that the appellant would not return to live on the streets but would either be reunited with his family, if he could find them once in Tangiers, or failing that, would find work and establish himself in independent living arrangements. Put another way, can the finding of fact made by the judge that the appellant was not at real risk of becoming homeless and so in danger again survive the challenge that he failed to have regard to the evidence of Dr Sedden identified above?

13. The first point made by Mr Melvin in his submissions was that by the time of the hearing Dr Sedden’s evidence was far from current. In the addendum report, dated 25 February 2015 (which was a year and 4 months before the hearing) Dr Sedden refers to the appellant as being” now 18 years old”, adding that there is no “bright line” between a person aged 17, which the appellant was at the date of his first report, and a person aged 18. At the date of the addendum report whilst it is correct to say that the appellant was 18 he was, in fact, one month short of his 19th birthday and at the date of the hearing before the First-tier Tribunal he was 20 years old.

14. Next, Mr Melvin emphasised that whilst Dr Sedden referred to the appellant as “a young 18 year old”, by the date of the hearing before the judge the appellant was a 20 year old who have left his foster parents’ home and moved on to independent living accommodation. Also, the appellant was gaining skills as a plumber and studying at level 3 NVQ. It is clear from the appellant’s witness statement, prepared on the morning of the hearing before the First-tier Tribunal, that on return he would try to locate his family and would try to find work.

15. Drawing all of this together I reach the following conclusions. Of course it would have been better had the judge specifically addressed the evidence of Dr Sedden that I have discussed above. But given the passage of time, the continuing education of the appellant in the United Kingdom and his acquisition of practical skills taken together with the categorisation of the appellant as being “much older” than when he left Tangiers, and his stated intention to avoid the experiences of the past, it was plainly open to the judge to find that the appellant would not return to live on the streets of Tangiers attracting the adverse treatment experienced by street children, and that there was no reasonable likelihood that he would do so. That being the case, the risks anticipated by Dr Sedden when considering the position of the appellant aged 18 simply did not arise. Therefore, even though the judge may well have fallen into error in failing to address specifically the views of Dr Sedden discussed above, had he done so I am entirely satisfied that he would not have reached any different conclusion. Therefore, the judge has not made any material error of law.

Summary of decision:

(i) First-tier Tribunal Judge Wilsher made no material error of law and his decision shall stand.

(ii) The appeal to the Upper Tribunal is dismissed.

Signed
Upper Tribunal Judge Southern

Date: 8 February 2017