Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/03853/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 14 October 2013
On 30 October 2013

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Mohammad Saeed Jabarkhel

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Sills, instructed by J D Spicer Zeb Solicitors (87 Kilburn)
For the Respondent: Ms Z Kiss, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant is a national of Afghanistan. He appealed to the First-tier Tribunal against the respondent's decision of 12 April 2013 refusing to grant asylum.

2. The appellant claimed to be at risk on return to Afghanistan on the basis that there was adverse interest in him on the part of the Taliban, his father having fallen out with them since he did not wish to continue to fight for them and they wanted him to continue with them. The judge found the claim to lack credibility. He set out a number of reasons for this. Some of these I shall have to return to in due course.

3. A particular matter was the issue as to whether, as noted at paragraphs 34 to 36 of the determination the appellant had claimed not to know where his family were and said he had made an attempt to trace them through the Red Cross, using the services of his solicitor. The judge noted that there was no evidence before him of any such attempt to trace them through the Red Cross or any other agency. He found this lack of evidence to undermine the appellant's credibility as his claim that he had no family members in Afghanistan was specifically raised in the refusal letter, as was his failure to produce any evidence of attempt to trace family members through the Red Cross. He said in his evidence that he had made attempts to trace his family through the Red Cross by instructing his solicitor. Counsel at the hearing, however, made no reference to any evidence of such attempts.

4. In his grounds of appeal the appellant first sought permission to adduce the statement of the appellant's solicitor who confirmed that she had emailed the Red Cross on 24 April 2013 with the appellant's details, as he confirmed he had not heard anything back from his foster carer or social worker regarding tracing his family. He confirmed that he had not yet heard anything from the Red Cross and the solicitor therefore confirmed that she would chase the matter for him. The hearing before the judge took place on 22 May 2013. In the grounds it was accepted that this did not meet the Ladd v Marshall [1954] 1WLR 1489 test, since the evidence was previously available. It was accepted that the evidence should have been before the judge, apologies were made for the oversight and the court was asked to allow the evidence to be admitted on the date as the judge held the fact that this evidence was not produced against the appellant and, as a child asylum seeker, he was entitled to expect his legal team to submit all relevant evidence.

5. The grounds go on to argue that the judge had erred in requiring corroboration. Reference is made to paragraph 339I of the Immigration Rules and it is argued that the appellant could not be expected to produce evidence to confirm a negative, i.e. that he had no family in Afghanistan. It is argued that the requirement to produce such evidence was an error of law, and the statement of the solicitor confirmed that she had applied to the Red Cross. The final point is made that it is accepted that this ground attacks only part of the overall credibility finding, but it is argued that it cannot be safely said what weight the judge gave this negative credibility finding in relation to the overall negative credibility finding. The point is made that the fact that the appellant is a child and therefore obviously vulnerable makes it imperative that his claim is properly assessed and such an error cannot be said to have led to a proper assessment.

6. Permission to appeal was granted by a Judge of the First-tier Tribunal on the basis that it was arguable that the failure to adduce the evidence affected the findings on credibility in relation to a claim based on age which required to be determined pursuant to principles set out in KA (Afghanistan) and EU (Afghanistan).

7. At the hearing before me Mr Sills relied on and developed points made in the grounds of appeal. He argued that the judge had in effect required the appellant to prove a negative. Reliance was placed on paragraph 339I of HC 395. The relevant documentation was not at the appellant's disposal. He had reported the steps taken by his solicitor. The judge had been wrong not to accept that and to require further evidence. Reliance was placed on the appellant's age and the fact that his solicitor had now produced her statement. It was argued that it was therefore clear that there had not been a proper assessment of the appellant's claim based on all the evidence, and this was material to the determination.

8. It was argued that the finding in respect of the Red Cross was a central finding in dismissing the appeal. Most, if not all, of the reasoning of the judge related to the appellant's evidence about his family and efforts to trace them. There had been very little consideration of the core of the claim, which was that his father was a member of the Taliban who had decided to leave. The only reference to the Taliban was in paragraph 41. It should be contrasted with the appellant's evidence in respect of that. The only other issue dealt with in any detail was the separation of the family in Iran. Paragraph 47 ignored the nature of their situation and the lack of choice that they had. The point was made at paragraph 48 that it was not credible to send a child from safety in Iran overland in a lorry with unknown persons in the hands of an unknown agent, but what was said at paragraph 38 in the refusal letter about deportations from Iran to Afghanistan should be borne in mind.

9. The judge therefore materially erred in requiring extra evidence from the appellant. The solicitor's evidence now provided showed what had been done. This was a case where the judge's error could have made a difference. It was a material error of law and the solicitor's evidence should be considered. It should be taken into account that the appellant was a minor and had been denied a fair hearing. As regards the acceptance that the Ladd v Marshall criteria had not been met, imposing that requirement on the appellant was a flaw, and the Tribunal was invited to exercise discretion in the evidence to be considered.

10. In her submissions Ms Kiss relied on what was said in Ladd v Marshall. It was relevant to look at the solicitor's evidence. No copy of the email referred to had been provided. The process for Red Cross contact was familiar. They would acknowledge receipt of such applications, which would have been made by the appellant himself, and if necessary with the help of a social worker or foster carer, and there was nothing from either of them. The judge was criticised for not holding the lack of evidence against the appellant. It was clear from paragraph 339I that an asylum applicant was expected to provide to all documentation at their disposal. That had not been done. In the appellant's evidence before the judge as recorded at paragraph 36 of the determination, he did not mention going with the foster carer or social worker to the Red Cross to lodge his application for assistance. There was therefore a conflict between his evidence and that of the solicitor. The email had not been submitted for consideration. To ask the Tribunal to exercise discretion when all the evidence which should be available was not, in fact severely hampered the Tribunal's discretion.

11. The judge had been criticised for not dealing with the core account, but as could be seen from a careful reading of his determination, he had done so. He set out detailed reasons for disbelieving the appellant based on the appellant's own evidence. There was no error of law in the determination.

12. By way of reply Mr Sills said he that he had a copy of the email sent by the solicitor on his computer. The solicitor had produced the statement. There was no evidence from the social worker or foster carer. However, the evidence showed that attempts had been made to contact the family.

13. With regard to the determination, the appellant's explanations for such matters as the Taliban not finding the family needed to be borne in mind. He said they left before dawn so they were travelling in the dark. It was not implausible that he would have had little or no contact with his relative. The Taliban would not have found them. With regard to funding, it was clear from the appellant's evidence that his family had land and owned property, so there were assets available which could have paid for their departure. In regard to the matter of Iran the judge seemed to find it a safe place for Afghan asylum seekers but this contrasted with the evidence referred to in the refusal letter and undermined the argument about the credibility of separation. The judge had therefore erred in requiring this evidence which had now been provided. The core issues concerning his father and the Taliban and risk on that account had not been dealt with in the determination. The judge had erred in law.

14. I reserved my determination.

15. It is important to bear in mind that the parameters of this hearing are defined by the grounds of appeal. There has been no application to amend the grounds and consequently I have to consider those matters that were set out specifically there. The argument before me has to some extent strayed into the more general merits of the judge's determination, but it is argued that that is on the basis that the determination as a whole has to be looked at in order to establish to what extent the Red Cross issue was central to the judge's adverse credibility findings. To that extent it is appropriate to look at the determination as a whole, but the essential issues are those as defined by the grounds of appeal.

16. The issue in this appeal to a significant extent revolves around the impact, as the judge found it to be, on the appellant's credibility of the fact that there was no evidence to support the appellant's claim that he had made an attempt to trace his family using the Red Cross through the services of his solicitor. On the one hand it is argued that, in light of evidence produced after the hearing by the appellant's representative that she had sent the British Red Cross the appellant's details, and consequently it is argued that that evidence should be admitted to show an error of law in the determination. On the other hand it is argued that the centrality placed by the judge on this issue is such that, though other aspects of the credibility findings are not challenged in the grounds, it is argued that it cannot safely be said what weight was given to this negative finding.

17. On the former point it is clear from Ladd v Marshall that three conditions have to be fulfilled in order to justify the reception of fresh evidence. These are as follows:

"First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

18. In this case it is accepted on behalf of the appellant that the evidence was previously available and therefore one of the tests in Ladd v Marshall is not met.

19. The evidence in question consists of a statement by the appellant's representative Ms Dhanjal, signed on 11 June 2013. In that she says at paragraph 3 that on 24 April 2013 she emailed the British Red Cross with the appellant's details as he confirmed that he had not heard anything back from his foster carer or social worker regarding tracing his family. The appellant confirmed he had not yet heard anything from the Red Cross and therefore she confirmed that she would chase the matter for him.

20. The appellant's evidence, as recorded by the judge at paragraph 34 and again at paragraph 36 of the determination is that the appellant claimed to have made an attempt to trace his family through the Red Cross using the services of his solicitor. In this regard, as set out above, Ms Kiss argued that there was a discrepancy between the appellant's evidence and that of his solicitor, and also that the solicitor had not exhibited a copy of the email that she said she had sent to the British Red Cross and no statements had been provided from the foster carer or social worker regarding tracing the family.

21. I see some force in Ms Kiss's arguments in this regard. However, the initial point is whether this evidence is such as to show an error of law by the judge. In my view it does not. The guidelines in Ladd v Marshall do not suggest any element of discretion or flexibility if one of the criteria is not met. It is common ground that this evidence could have been provided for use at the hearing. I do not doubt the apparent credibility of the evidence. The other factor, however, is whether it would probably have had an important influence on the result of the case. In this regard it is necessary to consider the determination as a whole. Mr Sills has argued that the determination was essentially focused on the issue of the failure to provide evidence to show contact with the Red Cross, whereas Ms Kiss argues that the adverse credibility findings are more broadly based. It is important to note that at paragraph 29 and again at paragraph 50 the judge reminded himself to take account of the fact of the appellant's youth and lack of experience, and how his recollection and ability to give his account might be undermined by his youth.

22. The first point that the judge found adverse was at paragraph 32 where he concluded that the account of the family circumstances in Afghanistan was unreliably vague. The appellant had said he did not know whether any of his mother or father's parents were alive or whether they lived in Afghanistan and claimed to have no parental or maternal uncles or aunts. He claimed to have knowledge of only one relative, the cousin who lived half an hour's walk from their village, with whom it is said the family stayed and who provided the funding for the family's travel to Iran. Clearly the judge found adverse the lack of evidence to substantiate the appellant's claims that an attempt had been made to trace them through the Red Cross. He bore in mind the fact that the matter had been raised in the refusal letter and yet there had been no evidence to support the claim. I do not think that this is a matter where the judge required corroboration in a way which caused him to fall into error. It could reasonably be expected that there would be evidence to substantiate the claimed attempt to trace families through the Red Cross using the services of the solicitor, and that was not done. It was a relevant matter for the judge to take into account. He was also in my view entitled to find it lacking in credibility that the visit to the relative who hid them for five days was the only time he had ever seen this relative despite the fact that on his evidence he was the only relative he claimed to have in Afghanistan and he only lived half an hour's walk away from the family.

23. The judge also found it lacking in credibility that this relative with whom the appellant said he had had no contact took them in and hid them for five days and funded their flight from Afghanistan. He also found it lacking in credibility that if the Taliban were looking for the appellant's father and family they would not have called at the only living relative's house when it was as close to the appellant's home village as it was. Nor did he find it credible that the family's walk would not have been observed and that if the Taliban wished to find them it would have been easy to do so. Nor was it credible that this person would have been able so quickly to find the cost of the family with an agent.

24. The judge further found it to lack credibility that the appellant's parents would have let him go from Iran, thus splitting the family up, when as he put it there would have been no reason to separate the family once they were safe. It appears to have been done on the basis that the agent needed twenty boys to be put on a lorry, and this led to him being separated from his family. The judge was entitled to express concern that a family which had fled to safety would risk a child's safety in such circumstances.

25. All these matters taken together in my view amply justified the judge's conclusion that he did not accept the core account, even bearing in mind such explanations as the appellant gave. I do not think it can properly be said that the adverse credibility findings are essentially comprised in the judge's conclusions in relation to the Red Cross issue. Though the admission of the solicitor's letter would clearly be relevant to the result of the case, I do not consider that it satisfies the second criterion of Ladd v Marshall of being such that if given it would probably have an important influence on the result of the case. In fact, all the evidence does is to state that the solicitor emailed the Red Cross with the appellant's details and the appellant confirmed he had not heard anything back from them and she confirmed she would chase the matter for him. Though this, if it were to be accepted, and I bear in mind in this regard the caveats submitted by Ms Kiss, this says nothing about the various other matters I have set out above which the judge found to go adverse to the appellant's credibility, and which were not challenged in the grounds.

26. I consider that the Ladd v Marshall criteria are not met in this case, and that this evidence does not fall to be admitted in assessing any error of law on the part of the judge. Even if it were to be allowed in, I consider that it would make no material difference since the other matters which caused the judge to doubt the appellant's credibility were such as to justify the adverse conclusion.

27. I therefore endorse the judge's reasons and conclusions. This appeal is dismissed.

Signed Date

Upper Tribunal Judge Allen