Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03446/2012

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Determination Promulgated
On 20 May 2013
On 3 June 2013

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

H S
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms L Fenney of Duncan Moghal Solicitors & Advocates.
For the Respondent: Mr K Hibbs, Home Office Presenting Officer

DETERMINATION AND REASONS
1. This appeal is subject to an anonymity order made by the First-tier Tribunal pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230). Neither party invited me to rescind the order and I continue it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
The Background
2. The appellant is a citizen of Afghanistan born on 11 January 1994. He claims to have arrived in the UK in June 2009. He claimed asylum on 15 June 2009 having been arrested by the police.
3. The appellant claimed that his father had been shot in the eye by a group whom the appellant thought was the Taliban. The appellant and his brother were held by the group for about a month before the men forcibly handed the appellant over to an agent. Thereafter, the appellant left Afghanistan on foot travelling to Pakistan where he remained for about a month before being taken in a number of vehicles through a number of unknown countries eventually arriving in the UK.
4. On 1 December 2009, the Secretary of State refused the appellant’s application for asylum and humanitarian protection. However, as the appellant was a minor, the appellant was granted limited leave to remain in the UK until 1 July 2011 in accordance with the Home Office policy in relation to unaccompanied minors.
5. On 29 June 2011, the appellant applied for an extension of that leave relying again on his fear from the group (which he believed to be the Taliban) who had previously shot his father and detained him. On 21 March 2012, the Secretary of State again refused the appellant’s claim for asylum and humanitarian protection. On that date the Secretary of State made a decision refusing to vary his leave and also made a decision to remove him by way of directions under s.47 of the Immigration, Asylum and Nationality Act 2006.
The First-tier Tribunal
6. The appellant appealed to the First-tier Tribunal. Following a hearing, Judge C J Woolley dismissed the appellant’s appeal.
7. First, he found the appellant not to be credible and did not accept his account that his father had been shot by a group (believed to be the Taliban) or that the appellant had been detained by that group and that they had handed him over to an agent paying for his travel to the UK. The judge did not accept that the appellant was at risk of forcible recruitment by the Taliban or that otherwise he would be at risk of persecution on return.
8. Secondly, the judge did not accept that there was a real risk that the appellant would commit suicide on return to Afghanistan or that, on account of his diagnosed major depressive disorder, his return to Afghanistan would breach Arts 2 and 3 of the ECHR.
9. Finally, the judge dismissed the appellant’s appeal on humanitarian protection grounds and under Art 8 of the ECHR.
The Appeal to the Upper Tribunal
10. On 18 June 2012, the First-tier Tribunal (DJ Campbell) granted the appellant permission to appeal to the Upper Tribunal. The appellant’s grounds of appeal raise, in essence, two potential errors of law. First, the judge erred in law in his assessment of, and the weight he had given to, the evidence of Dr Budd, a Consultant Clinical Psychologist, in reaching his finding that the appellant had failed to establish that there was a real risk of him committing suicide on return to Afghanistan and therefore that he had not established a breach of Arts 2 and 3 of the ECHR. Secondly, the judge erred in law in failing to find that the respondent has failed to comply with her duty to trace the appellant’s family and accordingly had wrongly made the factual finding that the appellant would have family (including his father and uncle) who could support him on return to Afghanistan.
11. In granting permission to appeal the First-tier Tribunal did not find either of these grounds arguable but granted permission to appeal instead on the unarticulated ground that the Secretary of State’s decision to make a removal decision under s.47 of the Immigration, Asylum and Nationality Act 2006 was not in accordance with the law following the Upper Tribunal’s decision in Ahmadi (Section 47 decision; validity; Sapkota) [2012] UKUT 00147 (IAC).
12. The grounds do not challenge the judge’s adverse credibility finding and the dismissal of the appeal on asylum grounds.
13. Thus, the appeal came before me.
The Submissions
14. Before me, it was accepted that the removal decision under s.47 was not in accordance with the law. That follows from SSHD v Ahmadi [2013] EWCA Civ 512.
15. Ms Fenney, on behalf of the appellant, despite DJ Campbell’s view that they were not arguable, relied upon the two grounds set out in the grounds of appeal.
16. She submitted that the judge had wrongly discounted Dr Budd’s expert opinion on the basis that that opinion had only been founded on the appellant’s own account. She submitted that, in fact, Dr Budd referred in his report to what he had been told by Ms Edwards, a Systemic and Family Psychotherapist who had seen the appellant on five occasions. At para 9.3 of Dr Budd’s report, having spoken to Ms Edwards, he noted that:
“She indicated that at that time she had been concerned he might become a suicide risk due to his relative isolation, noting that his mood had improved significantly as soon as he had moved into a supportive family environment.”
17. Further, Ms Fenney pointed out that at paragraph 8.2 of his report, Dr Budd referred to a letter from the appellant’s GP, Dr Gwynne, who stated that he was taking an antidepressant and on a scoring test for the severity of depression, the appellant’s condition “qualified as mild depression”.
18. Mr Hibbs submitted that the judge had properly considered Dr Budd’s report. Mr Hibbs pointed out that Dr Budd had been unable to carry out a full assessment because, as he notes at paras 5.1-5.3 of his report, he was unable to administer the Million Clinical Multi-Axil Inventory – Third Edition (MCMI-III) to the appellant. Therefore, Mr Hibbs submitted that Dr Budd’s assessment was based entirely on his interview with the appellant. As regards the risk of suicide, Mr Hibbs submitted that the judge had correctly dealt with the expert evidence in relation to the two possible causes of the risk; namely, as a result of the appellant’s objective fear on return to Afghanistan and as a result of separation from a support network of friends or family. Mr Hibbs submitted that at paras 43-44 of his determination, the judge assessed the evidence and came to a conclusion that he was entitled to in law.
Discussion
19. The judge dealt with Dr Budd’s evidence in two passages in his determination. First at paras 38-39, the judge said this:
“38. ... In my findings in relation to his asylum claim I have indeed not found him to be credible in his account of events in Afghanistan. I note that the appellant was not able to complete the MCMI-III test which is a ‘well validated psychometric test’ which contains a validity index, an assessment of personality patterns, severe personality pathology and clinical syndromes. The report was therefore completed purely on the basis of the interviews with Dr Budd and his assessment of the appellant’s presentation without any validation from any psychometric test. In respect of his history in the UK Dr Budd had access to information from his foster family and from Ms Edwards (Family psychotherapist). In respect of the history in Afghanistan Dr Budd relied solely on what he was told by the appellant. Dr Budd reached the diagnosis of PTSD (DSM-IV criteria) from the appellant’s account but I have not found this to be credible. Insofar therefore as Dr Budd relied on the appellant for the history in Afghanistan in diagnosing PTSD, his diagnosis rested on a version of events that has not been found to be credible. The diagnosis must therefore be undermined. Dr Budd also diagnosed a major depressive disorder. This appears to have resulted also from events in Afghanistan as well as from the prospect of having to leave the United Kingdom, although Dr Budd at 17.2 does not particularise the causes of the depression. Dr Budd adds at 17.3 that the appellant is likely to become a serious suicide risk if he were compelled to return to Afghanistan but does not provide any explanation of this finding beyond saying that his UK relationships would thereby end, and does not evidence any previous suicidal ideation or attempt. This finding appears to be again based on what the appellant told Dr Budd at interview (paragraph 11.3).
39. Miss Fenney referred me to AM v SSHD [2012] EWCA Civ 521 (at pages 59-60 of the bundle) as to the attitude that must be taken to expert reports. The Court of Appeal in that decision held that a psychologist’s report must be regarded as independent evidence, even if it depended in part on formulating the opinion in the light of the account the psychologist had been given. AM went on however to explain that ‘whether evidence amounts to proof, on any particular standard ... is a matter of weight and assessment’ (paragraph 30). While accepting Dr Budd’s report as independent evidence I have therefore to go on and assess the weight that can be attached to it in the light of all the evidence. His major conclusion of PTSD has been reached on a version of events that I have not found to be credible. I do not therefore place any weight on any conclusions that Dr Budd may have reached based on that reached again on what he was told by the appellant in interview. This assessment is unsupported by any previous recorded history of suicidal ideation or attempt. While it can be accepted that the appellant may be depressed at the prospect of leaving his foster family and friends in an environment which on any assessment has been better than he experienced in Afghanistan, there is no evidence that Dr Budd has considered any support mechanisms that may be available in Afghanistan to lessen such a risk. I do not therefore find that weight can be placed on the report’s conclusions that for this reason alone that his depression ‘in the mild to moderate range’ will result in a ‘serious suicide risk’.”
20. Then, having set out relevant case law, including the House of Lords’ decision in N v SSHD [2003] UKHL 31 and the Court of Appeal’s decision in J v SSHD [2005] EWCA Civ 629, the judge continued at paras 43-44 as follows:
“43. Applying the tests as set out in J v SSHD I do not find that all the evidence including the medical evidence, even taken at its highest, demonstrates a real risk that the appellant would commit suicide in the UK. He has an extensive network of support, including not only his foster family and his friends in Newport but also the support of a mental health professional and his own GP (Ms Edwards and Dr Gwynne). There have been no reports of any suicidal ideation in the past and Dr Budd reaches his conclusion that he is a serious suicide risk on the one comment made to him in interview. While it may be expected that the notification of the decision to remove the appellant may have an effect on his mental state I take note that the Home Office is able to employ procedures to safeguard the appellant in this process. In respect of the risk of suicide on return to Afghanistan I have not found his account of his experiences there to be credible. I have not found that the appellant has established that his father is dead, and in his first statement he referred to his uncle as helping to pay for the agent to remove him from Afghanistan. I find that he does have a family network in Afghanistan of at least his uncle to which he could return and which would be able to give him support. I have not found that he has shown that he is of any interest to the Taliban as I have not accepted his account that they targeted his father or imprisoned himself. His subjective fear of ill treatment in Afghanistan is not therefore objectively well founded. While treatment for depression cannot be regarded as being of the same standard in Afghanistan as in the UK, as Mr Hammonds points out Afghanistan is not a medical wasteland and the OGN confirms that 80% of the population does have access to basic healthcare. On return to Afghanistan he will have the support of a family network. As a young man who has demonstrated his tenacity in making the arduous journey from Afghanistan to the United Kingdom for a period of a year, and who has established a network of friends in Newport, I do not find that he will have any difficulty in similarly establishing a network of friends in Afghanistan. There is no indication that Dr Budd took into account the mechanisms which are and which will be in place to minimise the risk of suicide both in the United Kingdom and in Afghanistan. I conclude that the conditions applicable to the appellant in both the United Kingdom and in Afghanistan reduce the risk of suicide sufficiently to bring it below the Article 3 threshold as defined in N v SSHD. I do not that Article 3 would be breached by the appellant’s return to Afghanistan.
44. I accept that Dr Budd has also diagnosed the appellant as suffering from Major Depressive Disorder with symptoms in the mild to moderate range. Dr Budd has not given the precise aetiology of the appellant’s condition but I take note that a major factor in this depression may be the prospect of losing his family and friend’s support network in Newport. Miss Fenney explicitly reminded me of this in her closing address. While I accept Dr Budd’s conclusions on the appellant’s depressive condition I do not find that this condition reaches the high threshold set by N v SSHD, given the availability of a support network in Afghanistan and the appellant’s capacity to create a new group of friends there. I do not therefore find that Article 3 is breached by the return of the appellant in a depressive condition to Afghanistan.”
21. In my judgment, the judge did adequately and properly take into account the evidence of Dr Budd.
22. First, the judge correctly noted that Dr Budd’s report had been based solely on interview and without the aid of the “well validated psychometric test”, namely MCMI-III test.
23. Secondly, the judge clearly noted, and took into account, the “internal” evidence of Ms Edwards and Dr Gwynne (see paras 38 and 43). Further, the judge clearly distinguished between the potential risk of suicide to the appellant because of his fear from a group (perhaps the Taliban) and because of his potential social isolation. As regards the former, the Judge did not accept that the risk was well-founded. As regards the latter, the evidence of Ms Edwards set out at para 9.3 of Dr Budd’s report goes no further than saying that at an earlier point in time she had been concerned that the appellant “might become a suicide risk due to his relative isolation”. She went on to note that his mood had improved as a result of him having moved into a “supportive family environment”. The judge was not wrong to point out both in paras 38 and 39 that there was no evidence of “any previous suicidal ideation or attempt”. Ms Edwards’ evidence was not to the contrary.
24. Thirdly, the judge was entirely correct to state, in assessing Dr Budd’s report, that the evidence of what the appellant claimed to fear on return to Afghanistan and, therefore, to the extent that that return was said to create a risk of suicide, was based wholly on what the appellant told him. The judge, of course, did not accept the appellant’s evidence. He found him not to be credible and that finding is not now challenged. The judge was entitled, at para 43 of his determination, to find, therefore, that in stating that there was a “serious suicide risk”, Dr Budd was basing that assessment on the appellant’s evidence of what he feared on return to Afghanistan (which was not factually established) and also that he would return there without any family support. However, as the judge found in para 43, the appellant had not established that his father was dead.
25. Before me, there was some argument as to whether or not the appellant had ever said in his interview (see question 52) that he had an uncle in Afghanistan who had made arrangements for his leaving the UK. The judge, in fact, dealt with this evidence at para 32 of his determination. As question 52 makes plain, this arose from an SEF statement made by the appellant. Neither Ms Fenney nor Mr Hibbs was able to produce that statement. At para 32 the judge said this:
“The account is further confused by the contradictory statement in the SEF statement that it had been his uncle who had paid for the agent. The appellant claimed that he had not wanted to say this and that interpreter had ‘messed up’ his account. He had however accepted in his interview that what was said in the statement had been correct and I do not find that he has produced any evidence to show that he was so completely misunderstood or misrepresented in his SEF statement that the account of his uncle paying for the agent must be rejected.”
26. The judge took this contradictory evidence into account in reaching his adverse credibility finding. No challenge is made to that finding and the judge’s reasoning in para 32 properly justifies the finding that he has made.
27. Looking at the Judge’s decision as a whole, in para 43 the judge gave cogent and adequate reasons for finding that the appellant has failed to establish a real risk of suicide on return to Afghanistan and therefore a breach of Art 3 of the ECHR. The judge took into account that the appellant has failed to establish that he would be of any interest to the Taliban or any such group or that they had previously targeted his father or imprisoned him. The judge also took into account that the appellant will have family on return, including his father and uncle. The judge found, on a basis entirely open to him, that the appellant will also have no difficulty in establishing a network of friends in Afghanistan. The judge noted that Dr Budd, in reaching his opinion, did not take into account the mechanisms which will minimise the risk of suicide both in the UK and in Afghanistan. Likewise, at para 44, whilst noting that Dr Budd diagnoses the appellant as suffering from major depressive disorder with symptoms in the “mild to moderate range”, the judge again has regard to the availability of a support network in Afghanistan and his finding that the appellant’s depressive condition would not be such as to engage the high threshold for Art 3 set out in N v SSHD is a finding that was not only properly open to him, but probably was inevitable.
28. For these reasons, I reject this ground of appeal.
29. Turning now to the second ground, this arises out of para 45 of the judge’s determination which is in the following terms:
“45. Miss Fenney submitted that no family tracing exercise has been completed, as required by DS (Afghanistan) v SSHD [2011] EWCA Civ 305. The respondent has explained that no family tracing took place at the time of the initial decision in 2009 as DS had not then been decided. They explain the efforts that have been made in respect of tracing, and I find that the respondent has endeavoured to trace the family as required by Regulation 5 of the Asylum Seekers (Reception Conditions) Regulations 2005. The respondent is not required to have succeeded in the tracing exercise (which might obviously in some cases never be possible) but simply to endeavour to trace. In any event, as was explained in DS itself, the obligation to endeavour to trace is a separate exercise from the asylum claim. I do not therefore find that the fact that the tracing exercise has not been completed reflects on the asylum decision and subsequent appeal.”
30. Ms Fenney submitted that the Secretary of State had failed to carry out her duty under the Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005/7). She referred me to the Court of Appeal’s decision in KA (Afghanistan) and Others v SSHD [2012] EWCA Civ 1014. She accepted that the Secretary of State had, albeit belatedly, sought to trace the appellant’s family. My attention was drawn to a letter written to the appellant’s social worker dated 21 February 2012 (at H1 of the respondent’s bundle) and the response dated 9 March 2012 (at I1 of the respondent’s bundle) and, finally, an email addressed to the British Embassy in Kabul giving the appellant’s details together with that of his father and brother seeking to trace them dated 22 March 2012 (J1 of the respondent’s bundle).
31. I drew both representatives’ attention to the subsequent decision of the Court of Appeal in EU (Afghanistan) and Others v SSHD [2013] EWCA Civ 32.
32. Ms Fenney submitted that the judge was not entitled to find that the appellant had an uncle and father in Afghanistan given that she had not, until at least recently, sought to fulfil her duty under the 2005 Regulations.
33. Mr Hibbs submitted that, following EU and in particular [34], the judge was entitled to find in all the circumstances that the appellant had family and other support in Afghanistan and that his return would not put him at risk.
34. It is accepted that the Secretary of State has, indeed, sought to carry out her duty to endeavour to trace the appellant’s family in Afghanistan since February of last year. No further information was put before me concerning any response from the British Embassy since the enquiry made on 22 March 2012.
35. It is clear from the most recent decision of the Court of Appeal in EU (Afghanistan) and Others that any breach by the Secretary of State of her duty may, but will not necessarily, have an impact on the judicial consideration of an individual’s asylum or humanitarian protection claim. The ‘protective principle’ referred to in KA may advance an individual’s case beyond her asylum claim, for example under Art 8 (see, EU and others per Sir Stanley Burnton at [6]). However, an appellant cannot simply succeed in an asylum claim because there has been a breach of the duty to endeavour to trace. A Judge must assess the contemporaneous risk to the individual on return. In KA (Afghanistan) and Others, Maurice Kay LJ (at [18]) rejected the notion that there was a bright line, when assessing risk on return, which was crossed at the age of 18 (applying DS (Afghanistan) v SSHD [2011] EWCA Civ 305 per Lloyd LJ at [54]). That point was also made, and amplified, by Sir Stanley Burnton in EU (Afghanistan) and Others at [34] where he said:
“It is also contended for [the appellant] that the Secretary of State’s delay in determining his claims resulted in prejudice that should be remedied by the grant of leave to remain, since if his claims had been timorously decided, he would have been granted asylum. This contention is inconsistent with the fundamental principle of asylum law and practice, upheld by this Court in [KA], that claims are decided on the basis of facts at the date of decision. It is inherent in this context that decisions made at different times may have different outcomes. Delays on the part of the Secretary of State in determining claims, at least if not deliberate, do not justify their determination on artificial basis of obsolete facts.”
36. That latter point deals with Ms Fenney’s submission that the respondent’s grant of leave to the appellant indicated that she was satisfied the appellant had no family in Afghanistan to return to. Even if that were the case, and it is very doubtful if that necessarily follows because the unaccompanied minor policy is applied, it was not the case by the time of the hearing. The evidential findings of the Judge were to the contrary.
37. Here, the appellant is no longer a child but the Judge did not approach the appellant’s case as if a ‘bright line’ existed at 18. The Judge found the appellant not to be credible. The appellant was disbelieved that he had no family in Afghanistan. The Judge was entitled to make that finding. In respect of the tracing, the appellant provided no information about to his uncle,. In respect of both the appellant’s father and brother, he provided a name and his own last known address. However, the Secretary of State’s endeavours to trace them have, it would seem, proved fruitless in any event. It is impossible to see what the appellant can gain from showing that the Secretary of State has only belated sought to trace his family.
38. The Judge fully considered the circumstances of the appellant on return and concluded that he was not at risk for the purposes of his asylum claim and also in breach of Art 3 of the ECHR. Despite the delay in the Secretary of State carrying out her duty under the 2005 Regulations, I see no basis upon which either discreetly or as part of the appellant’s claim to be a refugee that failure can provide any remedy.
39. For these reasons I reject this ground of appeal also.
40. For the above reasons, the First-tier Tribunal did not err in law in dismissing the appellant’s appeal on asylum and humanitarian protection grounds and under Arts 2, 3 and 8 of the ECHR.
Decision
41. Thus, the First-tier Tribunal’s decision to dismiss the appellant’s appeal on asylum and humanitarian protection grounds and under Arts 2, 3 and 8 of the ECHR did not involve the making of an error of law and its decision to dismiss the appeal on those grounds stands.
42. However, the respondent’s removal decision under s.47 of the 2006 Act was not in accordance with the law. To that extent, the appeal is allowed such that the appellant is not subject to a removal decision.

Signed

A Grubb
Judge of the Upper Tribunal