Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01535/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 11 October 2016
On 14 October 2016

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

a s z
(ANONYMITY DIRECTION made)
Respondent

Representation:
For the Appellant: Mr I Richards, Home Office Presenting Officer
For the Respondent: Mr H Dieu instructed by Virgo Consultancy

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent ("ASZ") who claims asylum. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. Although this is an appeal by the Secretary of State, for convenience I will refer to the parties as they appeared before the First-tier Tribunal.
Background
3. The appellant is a citizen of Afghanistan who was born on 23 May 1977. He arrived in the UK on or about 6 May 2001 and claimed asylum. That claim was refused on 9 October 2001 but he was granted exceptional leave to remain until 9 October 2005. On 7 August 2007 the appellant was granted indefinite leave to remain.
4. On 12 February 2010, the appellant was convicted at the Cardiff Crown Court of conspiracy to supply a controlled drug and was sentenced to a term of twelve years' imprisonment which was reduced to ten years' imprisonment on appeal.
5. As a result, on 29 May 2013, the Secretary of State notified the appellant of his liability to be deported under the automatic deportation provisions of the UK Borders Act 2007. On 1 June 2013, the appellant submitted representations setting out why he should not be deported. However, on 9 January 2015 a deportation order was made against the appellant. On 21 January 2015, the appellant was notified of the Secretary of State's decision that s.32(5) of the UK Borders Act 2007 applied and to refuse his asylum and human rights claims. The Secretary of State also certified the appellant's claim under s.72 of the Nationality, Immigration and Asylum Act 2002 (the "NIA Act 2002") on the basis that the appellant had been convicted of a particular serious crime and constituted a danger to the community.
The Appeal to the First-tier Tribunal
6. The appellant appealed to the First-tier Tribunal. First, the appellant challenged the certification under s.72 of the NIA Act 2002. Judge Lloyd concluded that the appellant did not constitute a danger to the community and so he did not uphold the Secretary of State's certification under s.72.
7. Secondly, the appellant argued that he would be targeted on return by the Taliban and his family because of his European demeanour and his failure to adhere to the Muslim faith. Judge Lloyd accepted that the appellant was at risk on return, and consequently entitled to asylum, on the basis that there was a real risk that he would suffer persecution on political and religious ground if he returned to Afghanistan.
8. Thirdly, the appellant argued that as a result of the level of indiscriminate violence in Kabul, to which he would be returned, there was a real risk of serious harm contrary to Art 15(c) of the Qualification Directive (Council Directive 2004/83/EC). Judge Lloyd found the level of indiscriminate violence in Kabul did reach that required for Art 15(c) and so allowed the appellant's appeal on humanitarian protection grounds also.
9. Finally, Judge Lloyd dismissed the appellant's appeal under Art 8.

The Appeal to the Upper Tribunal
10. The Secretary of State sought permission to appeal to the Upper Tribunal on two grounds. First, the judge had erred in law in concluding that the certification under s.72 of the NIA Act 2002 was wrong. Secondly, in finding that there was an Art 15(c) risk in Kabul the judge had failed to consider and apply the country guidance case of AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) which concluded that such a risk did not exist and had failed to give adequate reasons for departing from that guidance. Further, the judge had erred in law in allowing the appellant's appeal on asylum grounds and under Arts 2 and 3 essentially on the basis that the appellant succeeded under Art 15(c).
11. On 29 February 2016, the First-tier Tribunal (Judge Kelly) granted the Secretary of State permission to appeal limited to the second ground. Permission was refused on the first ground which challenged the certification under s.72 of the NIA Act 2002.
12. The appellant filed a Rule 24 response seeking to uphold the First-tier Tribunal's decision.
13. Thus, the appeal came before me.
Discussion
14. At the hearing, Mr Richards, who represented the Secretary of State, accepted that he could not pursue the challenge to the certification under s.72 and that the Secretary of State's appeal was restricted to the issues raised by ground 2.
15. I will deal first with the judge's decision in respect of Art 15(c) of the Qualification Directive.
16. Article 15(c) sets out the requirements for "subsidiary protection", reflected in our domestic law in para 339C of the Immigration Rules (HC 395 as amended), and it defines "serious harm" as consisting of:
"serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
17. Judge Lloyd dealt with Art 15(c) at paras 47-48 as follows:
"47. Article 15(c) refers to a "serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international and internal armed conflict." I reminded myself that this does not equate to the individualised specific threat to the individual covered by the Refugee Convention. Article 15(c) covers situations where civilians are at serious risk by being present in a very dangerous situation of armed conflict where indiscriminate violence is widespread. In circumstances where this criteria is met humanitarian protection may be granted. The Institute for the Study of War reported (see paragraph 4.4 Country Information and Guidance/August 2015:
'Analysts and media sources alike have noted a significant escalation in violence in Kabul during the latter months of 2014. Insurgent violence in Kabul increased in July 2014 and maintained a consistent level of intensity through March 2015. In these attacks militants focused on targeting Afghan government and Western interests, including foreign military and diplomatic personnel ?
A surge of terrorist attacks in Kabul in mid-May 2015 saw at least 26 deaths and over 80 injuries on 13th May, an assault on the Kabul Park Palace Hotel killed fourteen people. An explosion on the Kabul University campus left two professors wounded over the weekend of 16th May. On 17th May an explosion in the Kart-e-Naw neighbourhood was followed by an explosion on Hawashenasi Road which killed three people ? a suicide bomb attack near Kabul Airport killed three people on 17th May, while at least eighteen people were injured on 19th May a car bomb exploded next to the Ministry of Justice building, killing five and wounding at least 43 others ?'
48. I concluded that there is an Article 15(c) risk in the Appellant's home area. Thereafter the question arises of whether there is a part of Afghanistan that is not affected by the conflict and to which the Appellant can reasonably be expected to relocate."
18. Mr Richards submitted that the judge's finding was not supported by the country guidance case of AK and Others to which the Judge had made no reference. That decision, Mr Richards submitted, makes clear that at the date of the Upper Tribunal's decision the level of indiscriminate violence in Afghanistan as a whole was not such as to reach the high level required to fall within Art 15(c) such that a civilian, solely by being in the country, faced a real risk which threatens his life or person. Mr Richards submitted that Judge Lloyd failed to give any adequate reasons for departing from AK and Others and the reference to the report set out in the Home Office Country Information and Guidance, to which the judge referred in para 47, was not sufficient to depart from AK and Others.
19. On behalf of the appellant, Mr Dieu submitted that the judge had referred to AK and Others in the schedule of cases he set out at para 39 of his determination. Further, at para 40 he listed four pieces of background evidence, including the CIG report to which he referred. Mr Dieu submitted that it was clear that Judge Lloyd had applied his mind to the CG case law and had followed the proper process to depart from it based upon the evidence to which he was referred. Mr Dieu, however, accepted that the judge's determination was not explicit about the reason for departing from AK and Others.
20. It is clear law that the First-tier Tribunal (and indeed the Upper Tribunal) is required to treat a country guidance decision as authoritative and, any decision to depart from it, must be based upon "cogent reasons" and new evidence (see SG (Iraq) v SSHD [2012] EWCA Civ 940).
21. Judge Lloyd was, as a consequence, bound to apply the finding in AK and Others that the appellant could not establish an Art 15(c) risk in Afghanistan unless there were "cogent reasons" based upon new evidence to depart from it.
22. Judge Lloyd's reasoning in paras 47-48 is very brief indeed. He does not refer to AK and Others at all. It was not enough, in my judgment, for him simply to include it in a list of cases to which he had been referred. It was also not enough for him to state that these cases "figured in my deliberations" unless it can be clearly seen to have been the case. In para 47, which is in effect the whole of the judge's reasoning in respect of Art 15(c), it is wholly unclear whether he approached the appellant's case on the basis that there was a need for "cogent reasons" founded in new evidence to justify a departure from AK and Others which was against the appellant's case. That might not, in itself, be a material error if, in fact, Judge Lloyd had given "cogent reasons" based upon the background evidence. Whilst the background report to which he referred, disclosed a disturbing level of indiscriminate violence in Kabul, the judge offered no reasons why this level of violence was greater than that considered by the UT in AK and Others not to engage Art 15(c) and why, in itself, it reached the high threshold required for Art 15(c) (see Elgafaji (Case C-465(07) [2009] 1 WLR 2100 at [43]). All that Judge Lloyd refers to is, correctly, that the risk under Art 15(c) does not equate to an individualised targeted risk to an individual (see Elgafaji at [43]) and that the situation is "very dangerous" and indiscriminate violence is "widespread". Those reasons are, in my judgment, inadequate to justify a departure from AK and Others based solely upon the report extracted from the CIG to which the judge referred. It is wholly unclear what, if any, other background evidence the judge actually took into account in reaching his ultimate finding.
23. For these reasons, Judge Lloyd erred in law in allowing the appellant's appeal under Art 15(c).
24. I now turn to consider his decision in relation to the appellant's asylum grounds. This claim was based upon his European demeanour and that he had failed to adhere to his faith. It was part of the appellant's case that he would be at risk from the Taliban and also could face mistreatment by members of his family who were associated with the Taliban. The appellant also contended that he was believed to have worked as a spy for the Americans and the British in Afghanistan.
25. The Secretary of State's case before the judge was that the appellant could safely live in the cosmopolitan environment of Kabul and that his involvement with the Americans and the British was of such a low level that the Taliban would be unlikely to have any interest in locating him. There was no cogent evidence that his family had made threats to him as he claimed.
26. Judge Lloyd's reasons for allowing the appellant's appeal on asylum grounds are set out at para 67 of his determination as follows:
"For the reasons I have set out in my analysis of the respective cases of the Appellant and the Respondent and now applying the law to the facts as I have found them, I conclude that the Appellant engages Article 1(A)(2) of the Geneva Convention so as to entitle him to asylum in the UK. I am satisfied according the lower standard of proof that there is a real risk of the Appellant suffering persecution and ill-treatment on political and religious grounds if he returns to Afghanistan; whether to his home city of Kabul or if he were to attempt to relocate to another part of the country. In reality, however, I believe that it would be fraught with significant difficulties for him to relocate safely to another part of the country, having regard to contemporary objective and expert evidence which has been placed before me at this appeal."
27. It is not entirely clear what Judge Lloyd is referring to when he talks about his reasons given in his "analysis of the respective cases of the appellant and the respondent". The appellant's case is set out at para 25 and the respondent's case is set out at paras 26-33. In those paragraphs the judge does not give any reasons or make any findings which would support allowing the appellant's appeal. If, however, Judge Lloyd meant that he accepted, it must be assumed, the appellant's case, he gave no real reasons in para 67 for doing so. Paragraph 67 simply states that there is a real risk to the appellant of persecution or ill-treatment on political and religious grounds if he returns to Afghanistan. In that paragraph, the judge does not give any reasons for accepting the appellant's claim to be at risk and does not grapple with the Secretary of State's arguments that the appellant's claim is not well-founded because the level of his involvement with British and American forces not would make him of any interest to the Taliban on return to Kabul or put him at risk from his family in the absence of any threats made to him. Likewise, to the extent Judge Lloyd concluded that the appellant was at risk as a result of his "western demeanour", he gave no reasons for that finding and, again, failed to grapple with the respondent's case that no such risk existed in Kabul. Judge Lloyd does not rely upon or cite any relevant authority that would, in itself, justify his findings.
28. Whilst I do not accept the respondent's argument that Judge Lloyd simply read across his finding in respect of Art 15(c) to conclude that the appellant had established his asylum claim, he nevertheless erred in law in finding in favour of the appellant on his asylum grounds because he failed to give adequate reasons for his findings.
29. As a consequence, Judge Lloyd's decision to allow the appellant's appeal on asylum and on humanitarian protection grounds cannot stand.
Decision and Disposal
30. For the above reasons, the First-tier Tribunal's decision to allow the appellant's appeal on asylum and humanitarian protection grounds involved the making of an error of law. To that extent, Judge Lloyd's decision is set aside and must be remade. The decision not to uphold the s.72 certification shall stand.
31. Both representatives indicated that if this was my conclusion, the appropriate disposal of the appeal was to remit the appeal to the First-tier Tribunal for a rehearing.
32. Applying para 7.2 of the Senior President's Practice Statement and having regard to the nature and extent of fact finding, this appeal is remitted to the First-tier Tribunal for a rehearing in order that the decision in respect of the appellant's asylum claim, for humanitarian protection and under Arts 2 and 3 of the ECHR can be remade.
33. Judge Lloyd's decision to dismiss the appellant's appeal under Art 8 was not challenged by the appellant. That decision stands in respect of the factual position at the date of his decision. If the situation relevant to Art 8 has changed since Judge Lloyd's decision, it will be for the First-tier Tribunal to consider it.
34. The appeal is remitted to the First-tier Tribunal for the decision to be remade to the extent I have indicated by a judge other than Judge Lloyd.

Signed

A Grubb
Judge of the Upper Tribunal

Date 14 October 2016