Tribunal decisions

The decision

ar

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/01728/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 30 July 2014
On 25 September 2014

Before

UPPER TRIBUNAL JUDGE ESHUN

Between

F
(anonymity granted)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss A Radford, Counsel, instructed by Lawrence Lupin Associates
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Afghanistan born on [ ] 1983. He arrived in the UK on 21 May 2012 as a Tier 4 Student with leave valid from 1 May 2012 to 28 October 2013. He retuned to Afghanistan for a holiday on 28 January 2013. He travelled back to the UK on 5 February 2013 and claimed asylum because he had received a warning from insurgents by way of a night letter delivered to his house on 2 February 2013. Before travelling to the UK as a student the appellant had worked as a customs enforcement officer in the Customs Department of the Ministry of Finance in Kabul from June 2011 until May 2012.
2. The appellant's appeal against the respondent's refusal to grant him asylum was dismissed by First-tier Tribunal Judge Kimnell in a decision dated 4 March 2013. On 11 March 2013 a First-tier Judge refused the appellant's application for leave to appeal the judge's decision. On 14 March 2013 an Upper Tribunal Judge also refused the appellant permission to appeal to the Upper Tribunal.
3. On 22 March 2013 the appellant commenced proceedings for Judicial Review of the decision of the Upper Tribunal refusing permission (the Cart Judicial Review). He sought interim in relief by way of a stay on removal, but that was refused by Mr Ockelton sitting as a Judge of the High Court on the same day.
4. On 23 April 2013 the appellant was removed to Afghanistan.
5. On 24 May 2013 permission was granted in the judicial review claim. According to the ruling by the Upper Tribunal (Mr C M G Ockelton, Vice President and Upper Tribunal Judge Goldstein) promulgated on 10 July 2014, there was a hearing before Nichol J on 20 April 2014. He refused to order the appellant's return. One of the orders made by Nichol J was that the Upper Tribunal grant the appellant permission to appeal the determination of his asylum appeal by Judge Kimnell.
6. In light of the order made by Nichol J, the appellant's appeal came before an Upper Tribunal panel consisting of Mr. C M G Ockelton, Vice President and Upper Tribunal Judge Goldstein, on 23 June 2014. The Upper Tribunal decided in their ruling, firstly, that Section 1(4) does not apply to a case such as this. That is because that subsection is directed to an appeal that is pending, which ceased to be pending because of the departure. In a Cart case, the appeal ceased to be pending by the Upper Tribunal's refusal of permission to appeal, which was the "final determination" of the appeal and after which none of the proceedings of Section 104(2) caused the appeal to continue to be pending. An appeal that is not pending cannot be abandoned; and Section 104(4) therefore has no application while Cart process continues.
7. Secondly, if as a result of a Cart application the original refusal of permission is quashed, it is beyond doubt that the application to the Upper Tribunal for permission to appeal now requires a determination. So Section 104(2)(a) now applies: the appeal is pending.
8. The Upper Tribunal decided with some hesitation that if the court sets aside the Upper Tribunal's refusal to grant permission, we will treat the appeal as pending to the extent of granting permission in accordance with paragraph 3 of the order, so that the matter can proceed before the Upper Tribunal. A further hearing was arranged in the Upper Tribunal on 30 July 2014.
9. On 28 July 2014 the appellant's solicitors faxed the order made by Nichol J dated 25 July 2014, which made a quashing order in respect of the refusal by Upper Tribunal Judge Warr on 14 March 2013 to grant the appellant permission to appeal to the Upper Tribunal from the determination of First-tier Tribunal Judge Kimnell promulgated on 5 March 2013. In light of the quashing order, I treated the appeal as pending to the extent of granting permission so that the matter could proceed before the Upper Tribunal.
10. I heard evidence from the parties as to whether First-tier Tribunal Judge Kimnell erred in law in his decision.
11. Miss Radford relied on her skeleton argument dated 22 June 2014 prepared for the hearing on 23 June 2014. At paragraph 7 she identified four areas in the determination where the judge erred in law. The first was that he did not consider the future risk to the appellant arising from his government employment which was agreed between the parties.
12. Secondly, he made no findings on whether the appellant was a member of an enhanced risk group such that he was in need of humanitarian protection; thirdly his findings on the appellant's credibility were inadequately reasoned; he failed to consider the expert evidence (or to explain why it was rejected), and applied the wrong standard of proof; and fourthly, his alternative findings on internal relocation contradict Iftiqar Ahmed [2000] INLR 1 and/or HJ (Iran); HT (Cameroon) [2010] UKSC 31, failed to apply the correct standard of proof on safety on relocation and failed to apply country guidance on the safety of relocation and failed to consider at all the reasonableness of relocation, particularly to the north and west of Afghanistan.
13. An issue arose at the hearing as to whether, aside from the appellant's claim to fear persecution because of the night letter he claimed to have come from the Taliban, the judge was asked to make a finding that as a government employee he would be at risk of persecution. Ms Radford said that this argument was in her skeleton argument and was also raised at the hearing before the First-tier Judge at which she represented the appellant. The skeleton argument which Ms Radford referred me to was the copy that was faxed to the Tribunal. It contained alternate pages and therefore was incomplete. This led Ms Radford to argue that it was a material error of law for the judge to have failed to consider the arguments in the skeleton argument. I reject this argument outright. This is because as I was going through the appellant's bundle after the hearing, I noticed that a complete copy of the skeleton argument was in the appellant's large bundle at pages 67 to 80. This was the bundle that was before the Judge.
14. I find that Miss Radford's arguments do not disclose an error of law in the judge's decision. I give my reasons below.
15. I find that at paragraphs 2 and 5 of the determination, the judge correctly identified the basis of appellant's claim for asylum, that is, his claim was based solely on what happened between 20 January 2013 when he went on holiday to Afghanistan and 4 February 2013 when he returned to the UK. That claim was based on his response to question 58 of his interview where he was quite emphatic that his claim for asylum was based on the problems that you returned between 20 January 2013 and 4 February 2013. The judge said at paragraph 8 that according to the translation of the threatening letter, the appellant is accused of working under the command of foreigners in Afghanistan and as such he is an infidel and should quit his job otherwise he will be killed. In light of this evidence, I reject Ms Radford's argument that the judge was required to consider the future risk to the appellant from his government employment and that he failed to consider it and therefore fell into error. This is because the risk from his employment was inextricably linked to the basis of his claim. It cannot be considered in isolation. It is the content of the letter which formed the basis of his claim and the content was as a result of his employment which led to his claimed fear. The judge considered the claim and found that the appellant's fear was not well founded that he was not at risk of serious harm for the reasons given by him.
16. I do not accept Ms Radford's argument that the judge's findings on the appellant's credibility were inadequately reasoned and that he failed to consider the expert evidence and applied the wrong standard of proof.
17. I find that at paragraph 35 the judge properly identified the standard of proof which he said is not high; it is necessary only for the appellant to establish a reasonable degree of likelihood that he will be subjected to serious harm against which he will not be provided with protection. The judge went on to say that the phrase "reasonable degree of likelihood" does not establish a threshold beyond which evidence of past events is to be accepted as fact. It is for the Tribunal to attach such weight as it considers appropriate to each piece of evidence when considering the degree of risk on return. I find that throughout the determination the judge applied the correct standard of proof in his assessment of the appellant's claim.
18. Ms Radford argued that the judge failed to consider the expert evidence or explain why it was rejected. The expert evidence in question was the report prepared by Mr Tim Foxley MBE. Contrary to Ms Radford's argument the judge considered the report at paragraph 43 of the determination. The judge noted that the opinion of Mr Tim Foxley was that the appellant as a low/ middle ranking government official would be a very viable target for Taliban intimidation and punishment, but he was unwilling to give a judgment one way or the other as to whether or not the threatening letter actually emanated from Taliban sources, although the example presented by the appellant met his understanding of what a Taliban night letter might look like. The judge did not reject Mr Foxley's letter. At paragraph 51, he relied on Mr Foxley's letter to find that the Taliban who have neither the interest nor capability to chase the appellant around the country, particularly if he relocated in the north or the west where the Taliban support is much less marked. It was in the light of Mr Foxley's report that the judge found that it would not be unreasonable for the appellant to relocate within Afghanistan.
19. I do not accept the argument that the judge applied the wrong standard of proof in his consideration of safety of relocation. Ms Radford based her argument on the judge's finding at paragraph 51 that the appellant has been prepared to give up his career to come to the UK and he saw no reason why he should not give up his career in the Afghan government service if he feels himself at risk because of it. I find that the appellant's circumstances are different and cannot be compared to the appellant in HJ (Iran) or HT (Cameroon). Unlike this appellant, HJ and HT were found to be members of a particular social group. Being homosexual they had an immutable characteristic which would put them at risk. Even so the Court of Appeal found that if a member of this social group did not intend to live his life openly as a homosexual, then it is not likely that this person would be at risk of persecution.
20. The judge noted that Mr Foxley made the point that it is difficult to say whether the appellant would ever fully be without risk "if he maintains a career in the Afghanistan government service". Mr Foxley continued that the appellant is but one of many thousands of low level potential targets for the Taliban and he suspects that the Taliban will have neither the interest nor capability to chase him around the country, particularly if he relocated in the north or the west where the Taliban support is much less marked. The judge noted that the only reason the appellant gave for not wising to relocate was because he could be located throughout the country but found that his evidence was not supported by the expert report. On this evidence, I find that the judge applied the correct standard of proof and his findings on safety on relocation were reasonably open to him and sustainable.
21. Ms Radford further argued that in assessing the credibility of the appellant's claim, the judge had found that the evidence that the threat actually came from the Taliban source was lukewarm. She said this was the wrong threshold and was a misdirection in law. On this issue I accept Mr Tarlow's submission that the judge was not expressing a standard of proof when he used the word lukewarm. He was merely expressing uncertainty following consideration of the evidence on this issue, which he is allowed to do under the old case of Karanakaran [2000] EWCA Civ 11.
22. The judge found that there was no evidence that the Taliban were aware of the appellant's employment and nothing was done during the months preceding delivery of the letter which would draw attention to his occupation. His conclusion that the letter did not come from the Taliban at all but had been manufactured by the appellant himself or on his behalf was a finding open to the judge on the evidence. Linked to this finding was the judge's conclusion that the reason why the appellant put his details on the link Insight just before returning to Afghanistan was part of the process by which he produced evidence to support his asylum claim. Ms Radford submitted that the judge needed to engage with what the expert said about the risk to the appellant as a result of his employment and the receipt of the night letter.
23. I find that the judge did engage with what the expert said on these issues as already found above. In any event the question of weight is a matter for the judge. It was open to him to attach no weight to the letters purportedly from the appellant's brother and sister in Afghanistan and to find that there was nothing to connect the enquirers with the Taliban or any other organisation. It was merely evidence that unknown individuals asked after the appellant.
24. For these reasons I find that the judge did not err in law.
25. The judge's decision dismissing the appellant's appeal shall stand.

Signed Date

Upper Tribunal Judge Eshun