Tribunal decisions

The decision

IAC-FH-GJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02829/2010

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 7 October 2013
On 1 May 2014
Prepared on 30 November 2013

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Mr Parwiz Dilsoz
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No representation
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a national of Afghanistan, who arrived in this country on or about 10 November 2009. He claimed then to be 14 years old (having therefore been born in 1993) but he was assessed by social services at that time as having been born on 23 November 1991. His application for asylum, which he made on or very soon after his arrival in this country, was refused by the respondent, but he was granted discretionary leave which expired on 23 May 2009, in line with the respondent’s normal policy to grant discretionary leave to minors until they were about 17 ½ years old.
2. Before the appellant’s discretionary leave expired, the appellant submitted an application for further leave on 23 April 2009, relying on his original claim for asylum. This application was refused on 3 February 2010.
3. The appellant appealed against this decision, and following a hearing at Taylor House on 18 May 2010, before First-tier Tribunal Judge Lingam, his appeal was dismissed in a lengthy determination dated 1 June 2010.
4. The appellant appealed against this decision. In the grounds, only one ground was set out, which was entitled “Ground One: wrongly going behind a formal concession, and other errors”.
5. The main ground of appeal was that in the respondent’s original refusal letter, the respondent had expressly stated that the appellant’s father’s work “may have made him a target to local people who oppose the current government in Afghanistan” (at para 2 of the grounds). It is asserted at paragraph 3 of the grounds, that this acceptance “was substantially confirmed at para 14 of the second refusal letter”.
6. In that second refusal, dated 3 February 2010, (in which the reasons for the decision now being appealed were set out), it was stated as follows:
“You claim that your father and sister were murdered due to his activities within the government, however it is not accepted that your father and sister were killed as a direct result of your father’s role within the government as you stated that the whole village was attacked.”
7. It is stated later within paragraph 14 that:
“It is not accepted that your father held a position within the government at a level which could result in you having a well-founded fear of persecution on your return.”
8. It is, however, undoubtedly correct that there was no direct challenge to the assertion which the appellant had made that his father had carried out work for the government, as had been accepted when the appellant’s original claim for asylum had been made.
9. At paragraph 53 of her determination, Judge Lingam had found that “unlike the respondent, I am unable to find on the stark evidence before me that [the appellant’s] father’s work might have made him a target to local people particularly as he did not have a position within the government”. It was asserted in the grounds, at para 6, that “to go behind a formal concession that has not been withdrawn (and the judge’s wording itself makes it clear here it had not) is a clear error of law”. It is also asserted that this error would have been likely to be material, because it impacted on the credibility findings which the judge made.
10. The appellant was granted permission to appeal by Upper Tribunal Judge Eshun on 24 June 2010, who, when setting out her reasons for granting permission to appeal, stated that “it is arguable that the IJ went behind a formal concession which in turn affected [her] credibility findings”.
11. The appeal was then heard before Deputy Upper Tribunal Judge Juss sitting at Field House on 18 February 2011, but in a determination promulgated on or around 11 March 2011, Judge Juss dismissed the appellant’s appeal.
12. The appellant applied for permission to appeal to the Court of Appeal, and the grounds of appeal, dated 24 March 2011, include the following grounds:
“Ground One – Failure to understand the appellant’s case and/or to make findings on material evidence
2. Although rejecting the asylum application, the respondent did not doubt the appellant’s account and accepted that the appellant’s father’s work as a commander, which involved training recruits to the police with the American forces, may have made him a target to local people (Secretary of State’s reasons for refusal letter dated 22.2.2008, paragraphs 3-15; as maintained in the RfR letter dated 3.2.2010).
3. The appellant stated clearly in his evidence that armed individuals came to his home and killed his father (pD3 Appellant’s bundle, statement of Parwiz Dilsoz dated 6.5.2010, paragraph 5). In view of this evidence the likelihood of the killing being a targeted assassination, and not the result of a random attack, is therefore high. However, on re-determining the appeal, the UT proceeded on the basis of the assumption that the risk faced by the Appellant emanated simply from an attack on the whole village (17). The UT accordingly found that the Appellant could relocate from this village to Kabul and was at such not at risk on return (17).
4. A finding was required as to whether those who killed the Appellant’s father had specifically targeted him, and whether the Appellant was as a consequence also at risk; only then would it be possible to determine whether the Appellant had an internal relocation alternative and whether he would be at risk on return.
5. The UT therefore erred materially in law in failing to understand the nature of the Appellant’s evidence and/or to make necessary findings of fact …”
(The other grounds concerned the failure to engage with the arguments put forward on the appellant’s behalf with regard to his age, and, if he had in fact been a minor, failing to have regard to his best interests under Section 55 of the Borders, Citizenship and Immigration Act 2009.)
13. Permission to appeal was granted by Upper Tribunal Judge Goldstein on 17 May 2011. When setting out his reasons for granting permission to appeal to the Court of Appeal, Judge Goldstein stated as follows:
“It is arguable that the Deputy Judge failed to engage with the basis of the appellant’s claim [for] asylum, in particular that the risk of future persecution arose from the appellant’s evidence that his father was specifically targeted. It is thus arguable that the failure to reach a properly reasoned finding on this aspect of the appellant’s evidence vitiated the Deputy Judge’s assessment of the future risk of persecution and the availability of internal relocation.
It is also arguable that, as further contended in the present grounds, the Deputy Judge failed … to engage with the arguments put forward on the appellant’s behalf, not least having regard to the fact that the appellant was a child asylum claimant.”
14. It is apparent, therefore, that the issue of whether or not the appellant’s father was specifically targeted was an important aspect of this appeal.
15. Following the grant of permission to appeal to the Court of Appeal, by consent, the Court of Appeal ordered that the appeal be allowed to the extent that it be remitted to the Upper Tribunal for a fresh hearing. The hearing before the Court of Appeal apparently took place on Monday 23 January 2012, the order is stamped 27 February 2012, and it seems it was received at Field House on 11 April 2013. As is usual where there are consent orders, the order reads that the order is made:
“ON READING the statement of reasons filed by the parties AND ON the court being satisfied, without the determination of the merits of the appeal that there are good and sufficient reasons for allowing the appeal.”
16. The Statement of Reasons includes the following:
“3. … The appellant sought permission to appeal to the Court of Appeal, his grounds being that the Tribunal Judge failed to understand his case and/or failed to make findings on material evidence; that the Tribunal Judge failed to make findings on material arguments, including those relating to the appellant’s age; and that the Tribunal Judge erred regarding the assessment of the best interests of a child.
4. Senior Immigration Judge Goldstein granted permission on 17 May 2011. The reasons for this decision being that it is arguable that the Deputy Judge failed to engage with the basis of the appellant’s asylum claim, in particular the assessment of future risk of persecution and the availability of internal relocation; and that the Deputy Judge failed to engage with arguments relating to the appellant’s age.
5. The respondent agrees with the appellant and Senior Immigration Judge Goldstein that it is arguable that there was a material error of law in the determination of Deputy Upper Tribunal Juss in that insufficient findings were made in respect of the claimant’s asylum claim and the assessment of the best interests of a child. Consequently the parties agree to the matter being remitted for a fresh hearing.”
17. The appeal was then listed for hearing before Upper Tribunal Judge Spencer on 2 July 2013 but the appellant did not attend. Notice of hearing had been sent to him at the address which was on the file, which was 1 Long Meadow Way, Canterbury.
18. The appeal was then re-listed for hearing before Upper Tribunal Judge Warr on 22 August 2013, but the appellant again did not attend. Notice of hearing had apparently again been sent to the address which was on the file.
19. At the hearing before me, Mr Bramble, on behalf of the respondent, stated that at the hearing on 2 July 2013 before Judge Spencer, Ms Tanner had indicated to the Tribunal that as from 28 May the appellant had lived at [Gravesend], and the appellant’s address was altered on the file to that address on 22 August 2013. Having made enquiries of listing, I ascertained that notification of the hearing before me was sent to the appellant at that address on 29 August 2013, and there is no indication that that letter was not received by him. It follows that although the appellant had been notified of individual hearings which were due to take place at both the addresses at which he had most recently been living, he had still not attended any of them. In these circumstances, I was satisfied that the appellant was served with notice of the hearing which was listed before me on 7 October 2013, and I was also satisfied that, the appellant having chosen not to attend, the appeal could be justly determined on that date. Accordingly, in accordance with Rule 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008, being satisfied both that the appellant had been notified of the hearing (and further that reasonable steps had been taken to notify him of the hearing) and that this was in the interests of justice, and having in mind the overriding objective as set out in rule 2, I decided to proceed with the hearing in the absence of the appellant.
20. At the outset, on behalf of the respondent, Mr Bramble informed the Tribunal that removal directions, which had been made under Section 47 of the Immigration, Asylum and Nationality Act 2006, were being withdrawn, so this Tribunal no longer had to consider this aspect of the appellant’s case. Mr Bramble also sought permission to withdraw the concession which had previously been made that the appellant’s father may have been involved in some way with the security forces in Afghanistan, and may have worked in the Khogini base. Notice of the respondent’s intention to withdraw this concession had been given to the appellant in a letter sent to him at [Gravesend] following the hearing on 2 July 2013.
21. The respondent wished to withdraw this concession because of numerous discrepancies in the documents which were before the respondent and also contained within witness statements, in particular referring to the appellant’s witness statement of 6 May 2010. If one looked at the appellant’s SEF, which was his basic application, he claimed there that his father had been a military commander. However, in the Kent Social Services Age Assessment it was reported that the appellant had claimed that his father had been “a powerful member of the Mujahideen”, that he had been fighting the Taliban and that he was also a member of the police force in Jalalabad. In the SEF interview of 14 February 2008 (when he was possibly a minor, which must be factored in) he said his father was a “commander”, worked at a base and had a police uniform. He knew that police and army uniforms were different, but he could not tell the colour of the uniforms.
22. Even taking into account that the appellant may have been a minor, the appellant had apparently told Dr Birch that his father was a “powerful person in Jalalabad” involved with the government.
23. Then in his statement of 6 May 2010, the appellant had said that he was a commander based at Khojini, who wore a grey uniform, but the appellant did not know whether he worked for the police or the army.
24. It was because of the various conflicts in the evidence that the appellant withdrew the concession.
Decision on Whether the Respondent Could Withdraw the Concession
25. I was referred to the decision of the Court of Appeal in NR (Jamaica) [2009] EWCA Civ 856. At paragraph 12 of his judgment, with which the other members of the Court agreed, Goldring LJ stated as follows:
“As Kennedy LJ (in the previous decision of SSHD v Akram Davoodipanah [2004] EWCA Civ 106) makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is a good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend upon the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted. Bad faith will almost certainly be fatal to an application to withdraw a concession. In the final analysis, what is important is that as a result of the exercise of its discretion the Tribunal is enabled to decide the real areas of dispute on their merits so as to reach a result which is just both to the appellant and the Secretary of State.”
26. In my judgment, the application by the respondent to be allowed to withdraw the concession is clearly made in good faith. Mr Bramble has referred to a number of inconsistencies in the evidence which need to be explored. In the light of these inconsistencies, I consider that there is a real dispute between the parties as to precisely what role the appellant’s father had within Afghanistan. As the main issue in this appeal would be whether or not as a result of whatever activities the appellant’s father had carried out the appellant himself would be at risk on return, I do not consider that I can deal justly with this appeal (and certainly could not fairly consider the respondent’s case) unless the respondent is allowed to withdraw the concession which had previously been made.
Further Submissions
27. So far as the grounds relating to the appellant’s age were concerned, Mr Bramble submitted that whether the appellant had been born in 1991 or 1993, he was an adult now, being aged at least 20. The issue of what his best interests might have been as a minor was no longer relevant, and although there was no “bright line” (that is, a person did not suddenly cease to be at risk when 18 if he was at risk before), there was no reason to believe he would be at risk on return on account of his age.
28. Even if the appellant’s father had worked as a commander in Khojini (concerning which the respondent no longer made a concession) it could not anyway be shown on the basis of the evidence which had been adduced that he had been killed as a direct result of his role in government. At Q37 of his SEF interview, the appellant said about the attack on his family home, where he says that his father and one of his sisters was killed, that his village had been attacked because there were too many Taliban. In answer to the question as to whether his village had been specifically targeted for any reason he said the Taliban were everywhere in Afghanistan, in every village.
29. At Q38, with regard to why they had killed his sister, he said that he did not know exactly who attacked his house.
30. At Q35 he had said that “my village was attacked because there was a war”.
31. So even if the appellant’s father had had some role in government, one could not say that he had been attacked because of his role when the whole village was being attacked. The appellant was not aware who the perpetrators were, or even whether his father and sister had been specifically targeted. So, even at its highest, it could not be shown, regardless of what the appellant’s father’s role was, that the attack on the family home was as a direct result of this rule, rather than an attack on the village generally because the country was in a state of turmoil.
32. If one added this to the inconsistencies regarding what the appellant was saying in the various accounts referred to already, without any explanation from him, the respondent would say that the appellant had not proved his case even to the lower threshold, even giving allowance for his age at the time. For this reason the respondent would say that the appellant had not established that he was at risk even in his home area.
33. Even if the appellant was at risk, he would have the alternative option of relocating to Kabul. Although Dr Birch in his report back in 2010 talked about concerns that the appellant might be suffering from PTSD, we were now in 2013 and there was no further medical evidence, so the Tribunal should attach very limited weight, if any, to that report. We simply did not know the appellant’s current circumstances. Although the appellant had been represented in the Court of Appeal, there was still no up-to-date medical evidence available to the Tribunal.
34. With regard to any duty to trace which the respondent might have, we were still looking at a young man returning to Afghanistan, who, even if his father was dead, had a mother in Pakistan. In his witness statement of May 2010, the appellant claimed still to be in contact with his mother. He had claimed later that she might be dead, but this had not been taken forward. We had no evidence from him further to his witness statement of 6 May 2010.
35. The appellant had also talked about an “uncle”, someone called Shorazda. This uncle seemed to have been living with him in the UK up to the hearing before Judge Lingam; he had gone to Pakistan and obtained an identity card for his mother which he then relied on. This was all before the hearing in 2010.
36. At para 10 of his witness statement of May 2010, the appellant had said that “I then moved to live with my uncle Shorazda in Northampton … he is not my real uncle but I call him uncle”.
37. Then at para 13, he had said that “my uncle Shorazda (a family friend) obtained the Afghan identity documents … from Pakistan in 2008. It was given to him by my mother”. At paragraph 18 he talks about his contact with his mother. There had been no evidence of what he had been doing since 2010.
38. Although the appellant had referred to his sister and brothers, we had no information as to what had happened to them.
39. On current country guidance (in particular AK (Article 15(c) Afghanistan CG [2012] UKUT 00163), the appellant could return to Afghanistan, even if he was on his own. No evidence had been put before the Tribunal to show that he fell within any exception to the norm.
40. The appellant was not at risk as a young man returning to Afghanistan; there was no separate issue with regard to Article 3.
41. Looking at Article 8, although this was engaged, in the sense that the appellant had a private life in this country, no information had been provided as to his circumstances since his last witness statement in May 2010, and he was not present to be cross-examined as to his circumstances. Accordingly, in the absence of any evidence from him, he had not shown that he had been disadvantaged by any failure on the part of the respondent to trace his family in Afghanistan. On the limited information available to the Tribunal, the Tribunal could not find that the respondent, had she made attempts to trace, would have found anything out which would have assisted him.
42. Regarding this appellant, he fell into limbo. He could not be cross-examined and therefore could not be asked about whatever contacts he had, and he had clearly not assisted in the whole process. So, even though the respondent may not have complied with her duty to trace relatives within Afghanistan, in the special set of circumstances in this case, the appellant had not shown that he was disadvantaged and therefore no weight should be given to the failure to trace in the balancing exercise under Article 8.
Discussion
43. Although the standard of proof is not high in an asylum case, an applicant still has to establish that if returned he will be at real risk of serious ill-treatment for a Convention reason. Similarly, to be entitled to humanitarian protection, an applicant will have to establish that he will be at real risk on return, but not necessarily for a Convention reason. The appellant’s case, as originally put, was that he would be at risk because he might be targeted as a result of his father’s former activities. As I have allowed the respondent (for the reasons I have given) to withdraw the concession which she had formally made that the appellant’s father may have worked for the government, this issue needs to be established. The evidence in support of the contention is, as Mr Bramble has shown, inconsistent. The appellant has chosen not to attend at the Tribunal, and so cannot be cross-examined as to the different accounts he has given. In these circumstances, I do not consider that he has established, even to the lower standard of proof, that if he returned he would be at risk of any targeted attacks.
44. The appellant, on any view, is now 20 years old (he may be 22) and on current jurisprudence (in particular AK) would not be at risk because of his age. Again, because the appellant has chosen not to attend, I am unable to find any reason why his case should be regarded as different from that of any other normal 20 year old who was to be returned to Afghanistan. He has not established by reason of his age that he would be at risk.
45. Regarding any Article 8 claim the appellant might have, while clearly he would have established some private life in this country, I am unaware, because the appellant has not put forward evidence as to his current situation, of any reason why it would not be proportionate to return him. Accordingly, he has not established a claim under Article 8 either.
46. Essentially, therefore, as the appellant has chosen not to attend, he has not established that he is entitled either to asylum or humanitarian protection or that his removal would be in breach of his Article 8 rights. It follows that his appeal must be dismissed.
Decision
The appellant’s appeal is dismissed, on all grounds.

Signed: Date: 11 December 2013

Upper Tribunal Judge Craig