Tribunal decisions

The decision

IAC-FH-AR-V5

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02055/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 September 2016
On 4 November 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

M N
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance by or on behalf of the appellant
For the Respondent: Ms A Brocklesby-Weller, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The case was listed for 10 o'clock. By 10.25 there had been no appearance by anyone on behalf of the appellant, nor had there been any communication indicating lateness or any other problem. Accordingly I concluded that it was appropriate to proceed with the appeal, and heard submissions from Ms Brocklesby-Weller, at the end of which I indicated that the appeal would be dismissed and that full reasons would be provided subsequently in a determination.

2. A few minutes after I had risen, Counsel appeared on behalf of the appellant, and sent me a note, to the effect that he had been unwell for the last few days and had not anticipated that the list could have been completed so swiftly as to preclude him from appearing in it.

3. I indicated through my clerk that I had heard the appeal and notified the respondent of my decision in the appeal. In the circumstances as the appeal had been heard, and I had indicated what my decision would be, the matter could not be reopened. It is clear from Patel [2015] EWCA Civ 1175 that once the Tribunal has announced its decision, that decision cannot be reconsidered and reversed. The decision is made, and has effect, when uttered by the Upper Tribunal Judge (paragraph 51).

4. The appellant claims to be at risk on return to Afghanistan, in essence on the basis that as an undercover police officer in the past who had gathered intelligence on the Taliban, he is at risk from them. He also fears the government who had sent a summons for him, and also members of his family who blamed him for the death of his uncle.

5. It was accepted that the appellant was an undercover police officer who had collected intelligence on the Taliban and reported this to the police. The judge accepted that at the time when he left Afghanistan for the first time in 2005 he was at risk in all areas in Afghanistan. He had left in fear of his life as a colleague of his had defected to the Taliban and informed them about him, and he went to Iran, then to Turkey and then via Greece to Italy. In Italy he was granted three years' leave to remain.

6. In 2007, according to his statement, two Arab men came to the clothing store where he worked in Rome and gave him a mobile phone to speak to someone who wanted to speak to him. The man on the phone had told him that he had to help the Arab men avenge their people against European people and if he refused to help then he knew where his family was and they would all be killed. The man even knew the names of his children. He told the men he could not help them, and was scared to report this to the Italian authorities and decided to leave Italy. He lived in Paris for about four years under what he described as appalling living conditions, and he was deported to Afghanistan in 2011. He did not resist because his family were having problems and he decided to leave so he could do something for them.

7. When he returned he had no documents with him and gave his name. There was no fingerprint machine at the airport. He was taken to a small town called Saracha, about an hour away from Jalalabad. His family was close in Jalalabad which was not under Taliban control. He stayed in Saracha for over a year, staying at different addresses and moving around every three or four months.

8. He left Afghanistan in January 2012 and went to Pakistan for over a year where again he said he was in hiding because the Taliban had headquarters there, and he returned to Europe in 2013, arriving in the United Kingdom in May 2014.

9. The judge assessed the evidence in considerable detail. She noted that no background material had been drawn to her attention that the government forces, the Taliban or any other organisation from Afghanistan have the capability of operating in Italy and had the ability to track the appellant down in a foreign country. Nor did she accept that the Taliban had put notes through his front door after he left Afghanistan, as it would have been obvious to them that there was nobody living there and he claimed that they had been able to find him in Italy and would therefore have realised it was pointless to send the letters to an empty house. The judge also considered that if the appellant had been at risk in Italy he would have sought the help of the Italian authorities. He had not returned to Afghanistan to help his family but decided to live for a further four years in Paris which in the judge's view did not show any concern for the fate of his family and was adverse to his credibility. It did not make sense to the judge that if the appellant was in fear for his family he would not simply have done what the Arab men asked rather than escaping to France. She thought that as a matter of common sense, if he escaped the Taliban were more likely to carry out their threats against his family than if he had reported the threats to the Italian police, as they would never know whether he had reported them to the police whereas they would know that he had refused to do their bidding by his disappearance. He had not satisfactorily explained why he did not go anywhere else in Italy, and nor had he given any other reason as to why he went to France other than saying he was trying to make his way to the United Kingdom but it was difficult. He had not given any good reason as to why he did not claim asylum in France other than his answer to a question that Italy and France look the same to him.

10. With regard to the appellant's evidence that informants would have told the Taliban where he was in Italy, they could even more easily find him on his return to Afghanistan in the judge's view and yet they had not done so. This to her mind showed that the Taliban were not interested in the appellant. He had also speculated that his family might have informed the Taliban before he left as his family knew where he was. She thought that if that were the case, knowing that members of his family supported the Taliban it was unclear why he would tell them where he was other than perhaps his wife and parents and give them strict instructions not to tell any of the other family members about his location. This also begged the question as to why he had no problems in Paris or on return to Afghanistan when presumably he would have told his family his whereabouts and therefore why this information had not made its way back to the Taliban. The judge also considered that if the Taliban were so efficient and effective that they could find him in Italy, there was no reason to suppose they would not have been able to find him in Afghanistan whether or not he was living in hiding. Although he had said he was likely to be easily found by Taliban members everywhere in Afghanistan and likely to be identified by them with ease, that was not in fact what had happened as he had managed to live for around a year in Afghanistan close to his home area.

11. With regard to the expert report that had been provided, the judge noted the expert's remark that the appellant could have remained in Jalalabad during that time in 2011 to 2012 as the government was in full control of the major provinces and their districts. On this the judge made the point that the appellant was not living in Jalalabad but an hour away in Saracha and considered that this inaccuracy on a key part of the appellant's claim led her to place little weight on the expert's report. She also considered that bearing in mind he had worked for the police spying on the Taliban and as such would have been in the unique position to be fully aware of the capabilities of the Taliban and the police, in those circumstances it made little sense to her that he would risk returning to Afghanistan if he feared them as he of all people would know about their abilities to track people down.

12. He had said that he decided to leave France so he could do something for his family who were having problems in Afghanistan and yet there was no evidence that he did anything for them other than live with them in hiding. Nor had he explained why he did not try to get his family out of Afghanistan if they were being threatened and this was the reason why he left Italy. The judge did not understand why, having obtained a three year status in Italy he had made no attempt for his family to join him either there or when he moved to France. He said that he had called his family after the visit from the Arab men and told them to move and his wife and children moved to his father-in-law's house and his parents moved to his brother's house, and the judge considered that if the family were at risk from the Taliban the first place they would look for them would be in the houses of other close relatives.

13. The judge noted the figures from the COIS Report of August 2015 concerning the numbers of deaths of civilians as increasing in 2011 and then reducing in 2012 as being inconsistent with the expert's views of the Taliban's effectiveness in 2011 to 2012. The judge reiterated that if the Taliban had the resources and wherewithal to find the appellant in Italy it did not make sense that they would not equally if not more easily be able to locate him in Afghanistan, especially as he only lived an hour away from his home area. Also if the government were in full control it begged the question why they were unable to find the appellant.

14. The judge also noted the expert's evidence that on return the appellant would have to pray at the local mosque, but he had said that he did not do so when he returned to Afghanistan and therefore the judge found he would not need to do so on return. She considered that in any event the Taliban and the government were no longer interested in him as neither he nor his family had any significant problems during the period he had lived in Afghanistan.

15. The judge also noted that the document that had been authenticated by the expert was the Afghan police reward certificate, and it was accepted that this was a reliable document, but this begged the question why the other documents he produced were not also authenticated and in oral evidence he was unable to explain why that was the case. The judge considered that in any event this so-called summons from the authorities was no more than a request to him to attend police headquarters due to special information he held and the request might be for perfectly innocent reasons and there was no indication that it in any way constituted a threat to him or a summons. The absence of problems from the government on return again suggested they had no ongoing interest in him.

16. The judge had concerns about the authentication by the Afghan Community and Welfare Centre and the letters from the Taliban on the basis that they gave no details of their methodology, analysis or the enquiries they made and the fact that they had authenticated similar letters in the past did not mean that any of the other letters they had come across were reliable documents. She also considered that if it were common knowledge as to what the letters looked like it would be easy to fabricate them. The appellant said the expert could not verify the letters from the Taliban as they had no office which in the judge's mind begged the question how the Afghan Community and Welfare Centre in the UK was able to do so. Taking the evidence in the round the judge attached little weight to the letters from the Taliban.

17. She considered that even if she were wrong, internal relocation was available to him. His family had moved to a safe area a few months previously and if they were safe it begged the question why he would not be safe if he lived with them. It was unclear why they had not targeted his family if they still had personal problems with him as he informed on them and the information he provided led to the deaths of many Taliban members. If he were at risk he could move elsewhere where the local people would not recognise him. The judge also considered that his family had not had problems from the Taliban after their return from Pakistan as they moved to different places and therefore he could do the same thing. His brother had had problems so he had moved to another province and was still there and had no problems. It was unclear to the judge why the appellant's knowledge of the intelligence he gathered in 2005 on the Taliban would be of any interest to anyone now.

18. She also noted discrepancies in his claim. In his interview he had said he stayed in a house for one year as he had the alternatives of staying in the house or going out and face danger, but nowhere suitable could be found after that period which is why he went to Pakistan. He now however said that he was changing houses three times to be safe on return to Afghanistan yet in the judge's view going outside would have increased the risk of someone seeing him and reporting his presence to the government or the Taliban. He had in fact accepted this in his asylum interview. Again, at interview he had said he did not experience any problems from the government or the Taliban as no-one knew he was there, but in oral evidence he said he had to move on three occasions because the Taliban found out where he was.

19. The judge considered that his subsequent return to Afghanistan undermined his claim to be of adverse interest to them and/or the government and/or members of his family. The passage of time meant that he was no longer of interest to anyone if returned now as he had had no problems from anyone when he returned in 2011. He had been there for a year which was a long enough period for either the Taliban or the government if they were interested in him to find him, particularly, as he claimed the Taliban had found him in Italy. In fact they had not only not found him in Afghanistan nor had they found him Pakistan. As regards the expert's view that it was credible that the appellant's relatives would blame him for the death of his uncle, the judge said that she had not found him credible concerning his fear from the Taliban or the government and did not accept his relatives would blame him for the death of his uncle and in any event would not seek revenge on him. She considered that in any case the expert had not set out the sources he considered in reaching this conclusion.

20. The judge went on to refer to relevant authorities such as AK [2012] UKUT 00163 (IAC), Naziri [2015] UKUT 437 (IAC) and H and B v United Kingdom (Application No. 70073/10 and 44539/11). She accepted there was a risk of indiscriminate violence in the appellant's province but in her view he could live elsewhere for the reasons set out above. He had moved around in Afghanistan and had access to funds as he had managed to support himself when he moved back to Afghanistan in 2011. She dismissed the appeal on all grounds.

21. In his grounds of appeal the appellant argued first that the judge had failed to apply H and B to the appellant's claim to be at risk as a former undercover police officer, and secondly pointed to what were said to be material errors in relation to returning in 2011 to 2012. Permission was granted on all grounds.

22. With regard to the former, it is argued that no rational basis had been provided for limiting the analysis to the appellant's situation in 2005 as opposed to risk on return in 2016. For example, it had been said in H and B at paragraph 100 that individuals who are perceived as supportive of the international community may be able to demonstrate a real and personal risk to them from the Taliban in Kabul depending on the individual circumstances of their case, the nature of their connections to the international community and their profile. It is argued that in the light of his accepted high profile activities which had led to the deaths of Taliban members and the prevention of a significant assassination plot, as a result of which he was granted a significant award by the Afghan police, it was incumbent on the judge to undertake an assessment of risk on return in light of this guidance. Clearly his case was capable of being distinguished from that of low profile individuals such as those identified in the respondent's guidance.

23. This however in my view fails to take into account the detailed and careful adverse credibility findings that the judge made. In effect she gave good reasons for distinguishing the appellant's situation as regards risk on return in 2016 from the situation in 2005. I do not propose to rehearse those points here as I have set them out fully above, but it is clear from her assessment of the evidence that she did give consideration to the individual circumstances of the case, the nature of the appellant's connections to the international community and his profile in concluding that he was no longer of interest to the Taliban or the authorities. I consider that her reasoning in this regard was properly reasoned and sound, and has not been shown to be in error of law. Ms Brocklesby-Weller drew my attention to paragraph 105 in H and B which in relation to that case referred to the fact that four years had passed since the first applicant had stopped working for the United Nations and had submitted nothing to suggest that even if he had previously received one telephone threat from the Taliban in Afghanistan in 2008 he remained of any adverse interest to them now. Similarly, on the basis of the judge's findings, the passage of time and the absence of credible evidence of an adverse interest in him in that period justified the judge in concluding as she did. Again, with regard to paragraph 98 of H and B, it was said that there was little evidence that the Taliban were targeting those who had as requested by them already stopped working for the international community and who had moved to other areas. The Landinfo report was noted, which states those who had fled and given up their jobs did not appear to have been actively targeted in the cities and that those who no longer collaborated with the international forces were a low priority for the Taliban who devoted their limited assets in the cities for high-profile targets, from serving government officials upwards. Accordingly I consider that this ground is not made out.

24. With regard to the second ground, it was argued that the judge had erred in her assessment of the expert evidence and relied on evidence not before her in the proceedings. With regard to the former, it is argued that the judge was wrong to reject the expert's evidence on the basis that he was not living in Jalalabad but an hour away in Saracha, since it was argued that the expert evidence was plainly addressed to major provinces in Afghanistan, including Nangarhar in general, and was not limited to the city of Jalalabad. The point is made that in any event the appellant's evidence was that he was moving from house to house within the area of Nangarhar.

25. That was however one of a number of points in relation to which the judge took issue with the expert's report. In any event it was open to her to make the point that she did that the appellant was not living in Jalalabad but in Saracha and the report said nothing about Saracha itself. As regards the sources for the expert's evidence in this regard, reference is made to footnotes in the report which include a reference to a 2009 publication from Dr Giustozzi and statistics from the Supreme Court of Afghanistan concerning the large number of prosecutions of the Taliban. However the judge was entitled to place against that evidence referring to the numbers of deaths of civilians as rising during at least part of that period. Though the judge referred to a 2011 COIS Report, whereas the report relied on by the respondent at the hearing was a COIS Report of February 2015, it has not been shown that that same evidence was not in the 2015 report, and in any event the judge referred to paragraph 12.03 of the 2011 report as showing that the Taliban are active and targeting family members of those who were of interest to them in 2011. The reference to the 2011 COIS Report must be a reference to a COIR of 11 October 2011 which is in the bundle of trial papers though there is a note on it "not relied on by either party". I do not consider that that precluded the judge from referring to that and taking examples from it.

26. The judge's findings in any event have to be taken as a whole. I consider that she was entitled to conclude as she did that though the appellant would have faced a real risk at the time when he left Afghanistan in 2005, for the reasons she gave that risk no longer exists, bearing in mind the various sound points she made about the credibility of the claim. Nor do I consider she erred in any respect in her consideration of the expert evidence. As a consequence I conclude that no error of law in her decision has been identified and her decision dismissing the appeal is maintained.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Allen