Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA032122015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 May 2016
On 17 June 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

[I M]
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms A Nizami instructed by Malik & Malik
For the Respondent: Ms J Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Afghanistan. He appealed to a Judge of the First-tier Tribunal against the decision of the respondent of 20 February 2015 to make directions for his removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999.

2. It is relevant to note at this stage that this was a rehearing in full of his appeal following a decision that there had been a procedural irregularity in his earlier appeal which was also dismissed, as a consequence of the detention action litigation.

3. The appellant claimed to be at risk on the basis of adverse interest in him on the part of the Taliban as a consequence of his work as a police officer where he had worked in various guises including being a teacher at the police academy and specialising in mines. He had been threatened on several occasions and attacked on two occasions as well as avoiding being blown up by an IED which he found. He had been told by his superiors effectively that they could not protect him and as a consequence he left Afghanistan.

4. The judge found his claim to lack credibility. Though he accepted evidence from the appellant's brother-in-law and sister, he noted that that was based on what they had been told by family and the appellant. The judge found a lack of credibility in such matters as the appellant continuing to travel to see his wife even after the third threat, and it was not credible that he had not reported verbal threats to other police officers as they would ask for proof. Nor was it regarded as being consistent with the fear of the Taliban that he would continue to return once a week to Logar where his home was and it was illogical not to move his family to Kabul where he worked because he believed they would be at risk there from the Taliban. He had said that his brother had been kidnapped but there was no evidence of this, the brother being a police officer also. His father was a prosecutor who continued to work in Logar and had not received any threats and continued to work in Kabul. Accordingly the judge dismissed the appeal. The appellant sought and was granted permission to appeal on the basis first that the judge had erred procedurally in, in effect, borrowing a number of her findings from the judge in the earlier determination, and secondly in failing to take account of relevant pieces of evidence. There was a Rule 24 reply from the Secretary of State. I heard helpful and detailed submissions from both representatives on the two points in issue.

5. On the first point, though I have some sympathy with the argument put forward by Ms Nizami, in the end I think there is no materiality to it. It may be that the judge borrowed, consciously or otherwise, some of the language of the previous judge, but the points were all, as Ms Isherwood would emphasise, matters which arose for evaluation and in respect of which the judge made findings which I consider were in the end open to him at least in the sense that they are not marred by procedural error of the kind contended for.

6. The problem lies in respect of the second ground which is concerned with the judge's failure, as it is said to be, to take account of material pieces of evidence in her evaluation of the claim. Ms Nizami argued that this was a consequence of being excessively enslaved to the earlier findings. I make no finding on that, but it is important to set out the particular matters of concern that were raised. The first is the point at paragraph 12 of the grounds referring to paragraph 70 of the judge's decision where she found that there was no evidence that the appellant's brother who is a police officer had been kidnapped by the Taliban. Contrary to that finding there was in fact evidence specifically in the form of a translated letter from the Taliban stating that they had managed to arrest the appellant's brother and he was still in their custody, and there was also evidence in respect of this in the appellant's father's letter at page 26 of the bundle and the letter sent on the appellant's father's behalf to the local police commandant, at page 52 of the bundle. The judge was in error in failing to recognise this evidence and take it into account.

7. The further point of concern is the statement at paragraph 78 that the appellant's father had not received any threats and continued to live in Kabul and also at paragraph 66 that he had not been targeted by the Taliban. This failed to take into account evidence that the appellant's father had to relocate to Kabul because of threats from the Taliban. The sister and brother-in-law who had both been found to be credible gave evidence in this regard and also there was evidence from the appellant.

8. I am conscious of the fact that these matters only relate to part of the appellant's evidence rather than all of it, and that the challenge otherwise is only on the basis of the first ground as mentioned above which I have not found persuasive. However I consider that there are sufficient defects in the credibility findings as regards the errors in the judge's conclusions as to lack of adverse interest in the other family members as to make it appropriate for the matter to be reheard in full and it will be listed as a consequence for a rehearing at Hatton Cross before a judge other than Judge Amin or Judge Martins. There will need to be a Dari interpreter and it will be listed for three hours.

No anonymity direction is made.

Signed Date 17th June 2016

Upper Tribunal Judge Allen