Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA030342015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 June 2016
On 16 June 2016

Before

LORD TURNBULL
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

[R K]
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Radford, instructed by JD Spicer Zeb Solicitors
For the Respondent: Mr T Wilding, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant, a citizen of Afghanistan, appealed to the First-tier Tribunal against the decision made by the Secretary of State on 6 February 2015 to refuse his application for asylum in the United Kingdom and to remove him from the UK. In a decision promulgated on 21 March 2016 First-tier Tribunal Judge Adio dismissed the Appellant's appeal on asylum and human rights grounds and the Appellant appeals with permission to this Tribunal.
2. The background to this appeal is that the Appellant was arrested in Northampton on 26 July 2013 and claimed asylum, he was placed with Social Services and recorded as absconded on 29 July 2013. His representatives contacted the Home Office on 9 October 2013 and he attended a screening interview later that month. The basis of the Appellant's claim is that four years before he left Afghanistan his father was killed in a skirmish between the Taliban and Government forces. He says that the Taliban wanted to recruit him to avenge his father's death and came to his home in 2013 when he was not there as a result of which he left Afghanistan.
3. His appeal against the respondent's decision to refuse his claim was dismissed by the First-tier Tribunal on 6 May 2015 but the Upper Tribunal subsequently found a material error of law in that decision and the appeal was remitted to the First-tier Tribunal. First-tier Tribunal Judge Adio heard the appeal afresh on 25 January and 25 February 2016. In his decision promulgated on 21 March 2016 the Judge found that the Appellant's date of birth was 2 May 1997 as claimed which meant that he was 16 years old when he claimed asylum. The Judge went on to consider the substance of the Appellant's claim and found that there was a discrepancy in the Appellant's evidence as to where he lived in Afghanistan and that this undermined the credibility of his account of the approach by the Taliban. He also did not accept that the Taliban would have delayed for four years before attempting to recruit the Appellant. He did not accept the Appellant's claim that he had been unable to contact his family in Afghanistan. Accordingly the Judge found that the Appellant could return to his home area. The Judge considered the Appellant's relationship with his partner in the UK and found that his removal would not breach Article 8 of the European Convention on Human Rights.
4. The Appellant advanced four grounds of appeal to the Upper Tribunal. The Judge granting permission to appeal considered that the second ground, which alleged procedural unfairness in relation to the Judge's approach to difficulties with the interpreter, had no merit and Ms Radford did not pursue that ground before us.
5. We start with consideration of the third ground, which alleges that the Judge made a mistake of fact, as we consider that our decision in relation to this ground determines the appeal.
6. It is contended in the third ground of appeal that the Judge erred in his approach to the evidence as to where the Appellant was born and lived in Afghanistan.
7. The Appellant has given a number of varying accounts as to his address. In his screening interview the Appellant gave his last address as Kakrak village, Khogiani District. In his Statement of Evidence Form (SEF) he gave his last address as Kakrak village, Sukhrood District and in the accompanying statement dated 13 November 2013 he said that he was born and lived in Kakrak village, Sukhrood District. However in his SEF asylum interview on 18 February 2014 he gave his last address in Afghanistan as Tatang village, Khogiani District. In his witness statement dated 23 March 2015 he said that he was born in Kakrak village Surkrod District and that when he was young his family moved to Tatang village, Khogiani District.
8. The Judge devoted a significant section of his reasoning to this issue. He notes at paragraph 79 that Ms Radford (who also appeared in the First-tier Tribunal) submitted, relying on YL (Rely on SEF) China [2004] UKIAT 000145, that the Appellant's answer in his screening interview should be given less weight as there were no procedural safeguards in place at that interview.
9. We note that YL was decided in 2004 and that some of the terminology and names of the forms have changes since then however the following guidance, set out at paragraphs 19 and 20 of the decision, remains valid;
"19. When a person seeks asylum in the United Kingdom he is usually made the subject of a 'screening interview' (called, perhaps rather confusingly a "Statement of Evidence Form - SEF Screening-). The purpose of that is to establish the general nature of the claimant's case so that the Home Office official can decide how best to process it. It is concerned with the country of origin, means of travel, circumstances of arrival in the United Kingdom, preferred language and other matters that might help the Secretary of State understand the case. Asylum seekers are still expected to tell the truth and answers given in screening interviews can be compared fairly with answers given later. However, it has to be remembered that a screening interview is not done to establish in detail the reasons a person gives to support her claim for asylum. It would not normally be appropriate for the Secretary of State to ask supplementary questions or to entertain elaborate answers and an inaccurate summary by an interviewing officer at that stage would be excusable. Further the screening interview may well be conducted when the asylum seeker is tired after a long journey. These things have to be considered when any inconsistencies between the screening interview and the later case are evaluated.

20. The Statement of Evidence Form -SEF Self Completion- (that is the "SEF" that the adjudicator considered) is an entirely different document. As has been explained above, it is the Appellant's opportunity to set out his case. The asylum seeker has to return the form by a specified date, usually about a fortnight after the form is given to him. However the asylum seeker is allowed to choose his own interpreter and obtain all the assistance he wants in order to complete the form. He is in control of how the form is answered. It is hard to imagine a fairer way to enable the claimant to set out his case. That being so, the Secretary of State, and if it comes before him, an Adjudicator, is entitled to assume that it is right."
10. Therefore in YL the Tribunal highlighted the difference between a screening interview when briefer details are requested and fewer procedural safeguards exist, and a SEF self-completion form where an applicant has a proper opportunity to put his case.
11. As can be seen from paragraph 7 above, in this case, as the Appellant was treated as a child at the time of his application, he completed a screening interview, an SEF form and an SEF interview.
12. When considering Ms Radford's submission the First-tier Tribunal Judge referred to the SEF interview at paragraphs 79, 80 and 81. Mr Wilding submitted that the Judge meant screening interview when he referred to SEF at paragraphs 79 and 81. However in our view it is clear that the submission made by Ms Radford set out at paragraph 79 refers to the screening interview whereas the Judge's analysis at paragraphs 80 and 81 refers to the SEF interview. We reach this conclusion because the extract from YL cited by the Judge at paragraph 80 was from paragraph 24 which relates to the SEF and states;
"24. I hope it is clear from the above that it is the view of the Tribunal that forms SEF must be completed carefully and accurately and the Secretary of State and the Adjudicator is entitled to assume that this has been done. If, for any reason, it is not the case then it is incumbent upon the asylum seeker to give a full and proper explanation for any deficiency at an early stage. The case has been reported so that this can be made clear."
13. We conclude that the Judge's error is more than just an error as to the name of the interview being considered. It goes to the heart of his approach to the different interviews. It appears from paragraphs 79-81 that the Judge misunderstood the guidance given in YL and applied it to the wrong interview (the SEF asylum interview instead of the screening interview). We accept Ms Radford's submission that the Judge therefore misdirected himself in law in relation to this issue.
14. We are satisfied that this is material error for two reasons. Firstly had the Judge properly applied the guidance in YL to the screening interview he could have reached a different conclusion in relation to the weight to be attached to the evidence from the screening interview. Secondly, the Judge devoted a significant part of his reasoning to this issue which was the main basis for his adverse credibility finding. Mr Wilding submitted that, even if the Judge erred in relation to his assessment of this issue, his finding on credibility could still stand on the basis of his finding that it is not plausible that the Taliban would have delayed for four years before looking for the Appellant. We do not accept that submission. Given the significance of this finding in the judge's overall assessment of credibility and the brief focus on the delay issue we cannot conclude that he would inevitably have reached the same conclusion had this part of the assessment been approached differently. Accordingly we conclude that the Judge made a material error in the assessment of the evidence as to the Appellant's address in Afghanistan and his credibility. We therefore set aside the Judge's findings of fact in relation to the credibility of the Appellant's claim as to risk on return from the Taliban.
15. We note that there has been no challenge by either party to the Judge's findings as to the Appellant's age. There was no challenge in the grounds of appeal, no cross appeal and there were no submissions on this issue. We therefore preserve the Judge's finding that the Appellant's date of birth is 2 May 1997.
16. The first ground of appeal alleges that the First-tier Tribunal Judge erred in his application of the country guidance cases and that he failed to consider the up-to-date country evidence in considering humanitarian protection. However as we have set aside his findings of fact and the decision is to be remade we are satisfied that it is appropriate to allow the First-tier Tribunal to apply the appropriate country guidance and consider any up-to-date country information in the light of the remade findings of fact.
17. The fourth ground of appeal alleges that the First-tier Tribunal Judge failed to consider the Appellant's private life under paragraph 276ADE of the Immigration Rules and in his assessment of Article 8. In this context we note that it is not clear whether paragraph 276ADE was argued before the First-tier Tribunal Judge. In any event an assessment as to whether there are 'very significant obstacles' to the Appellant's reintegration in Afghanistan (within paragraph 276ADE (1) (vi)) is dependant on the facts and the failure to consider this provision would not have been material on the facts found by the First-tier Tribunal in any event.
18. The parties were in agreement with our view that, in the circumstances, the nature and extent of the judicial fact finding which is necessary in order for the decision to be remade is such that (having regard to the overriding objective in Rule 2 of the Upper Tribunal Procedure Rules 2008) it is appropriate to remit the case to the First-tier Tribunal.

Notice of Decision
The Judge made a material error on a point of law and the determination of the First-tier Tribunal is set aside.
The findings of the First-tier Tribunal in relation to the Appellant's age are preserved.
The appeal is remitted to the First-tier Tribunal to be remade.

Signed Date: 14 June 2016

A Grimes
Deputy Upper Tribunal Judge