Tribunal decisions

The decision

IAC-AH-LEM-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/04238/2015

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke on Trent
Decision & Reasons Promulgated
On 8th February 2017
On 17th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

Between

SM
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Holt of Counsel instructed by Paragon Law
For the Respondent: Mr A McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS

Introduction and Background
1. The Appellant appeals against the decision of Judge I F Taylor of the First-tier Tribunal (the FTT) promulgated on 28th January 2016.
2. The Appellant is a male Afghan citizen born 16th February 2000.
3. He arrived in the UK illegally and claimed asylum on 11th November 2013. The Respondent refused his application on 2nd March 2015, although as an unaccompanied child he was granted leave to remain until 16th August 2017.
4. The Appellant appealed pursuant to section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and his appeal was heard by the FTT on 8th January 2016.
5. The Appellant's claim was that he would be at risk from the Taliban if returned to Afghanistan. He had been kidnapped by them and subsequently released. His father taught at the local mosque and had problems with the Taliban who wanted to take some of his students. The Appellant's father would not cooperate.
6. The Appellant left Afghanistan with his parents and they were told that some of the Appellant's father's students in the village had disappeared, and villagers thought his father was responsible because he had been cooperating with the Taliban.
7. The FTT found (paragraph 34) that the Appellant's core account was "broadly consistent." The FTT found that the Appellant could not return to his home village.
8. The FTT was not satisfied that the Appellant had lost all contact with his parents. The FTT found that the Appellant could relocate to Kabul where he would have a network of family support available. The appeal was dismissed.
9. The Appellant applied for permission to appeal to the Upper Tribunal and the grounds are summarised below.
10. Firstly it was contended that the FTT erred at paragraphs 29-31 when considering the expert report and noting that the expert had not commented upon the European Asylum Support Services Report of 2012 which was relied upon by the Respondent in the refusal decision. It was contended that the expert had been provided with a copy of the report, and notwithstanding the contents, still considered the Appellant's account plausible and consistent.
11. Secondly it was contended that the FTT erred at paragraphs 32-33 by misdirecting itself on the issue of forced recruitment by the Taliban. It was contended that the FTT had required the Appellant to show that forced recruitment was 'prevalent' which was an incorrect standard of proof and a material misdirection.
12. Thirdly it was contended that the FTT erred at paragraph 42 when considering the Appellant's contact or otherwise with his family. It was contended that the FTT had failed to provide adequate reasoning and made inconsistent findings. The FTT had failed to give adequate reasons why the Appellant's account that he had not retained his father's contact details was not accepted. It was contended that at paragraphs 42-46 the FTT had failed to have regard to all relevant evidence in the assessment of internal relocation to Kabul.
13. Permission to appeal was initially refused, but when a renewed application was submitted, permission to appeal was granted by Upper Tribunal Judge Rintoul in the following terms;
"It is arguable that, having found the Appellant to be broadly credible, First-tier Tribunal Judge I F Taylor has not given adequate reasons for finding at [42] his claim not to have retained adequate details of his father, given his age at the time and the finding at [24]-[25] and to have family in Kabul on whom he could rely. It may also be arguable that at [31] the judge erred in not noting that the expert had seen the relevant extract, and that it is, viewed as a whole, arguably less categorical; it would also appear to be arguably inconsistent with [33].
All the grounds are arguable."
14. Following the grant of permission the Respondent lodged a response pursuant to rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 contending, in summary, that the FTT directed itself appropriately. It was contended that the FTT had properly considered the expert report at paragraphs 38 and 39, and made adequate findings of fact in relation to the Appellant's credibility. The FTT was entitled to find that even though there were aspects of the account which were accepted, there were issues that were not accepted. It was not irrational or perverse for the FTT to find that it was not accepted that the Appellant was not in contact with his parents.
The Appellant's Oral Submissions
15. Mr Holt relied upon the grounds, but explained that in view of the fact that the FTT had found that the Appellant could not return to his home area, no significant reliance was placed upon the first two grounds.
16. Mr Holt submitted that the FTT had materially erred when considering the Appellant's contact, or lack of contact with family members. Mr Holt pointed out that at paragraph 34 the FTT had found the Appellant to be broadly consistent, but had failed to give reasons at paragraph 42 for rejecting the Appellant's claim that he had never had his father's contact details despite speaking to his father by telephone in Bulgaria. No reasons were given for this finding, which amounted to a material error of law.
17. Also in paragraph 45 there was no basis for the FTT finding that the Appellant could relocate to Kabul because he has a network of family support available to him.
The Respondent's Oral Submissions
18. Mr McVeety submitted that the FTT was entitled to find some parts of the Appellant's account credible and some incredible. The FTT was entitled to disbelieve the Appellant's account that he did not have contact details for his father, and that he had not ascertained contact details despite speaking to his father by telephone in Bulgaria.
19. Mr McVeety submitted that the FTT was entitled to find that the Appellant had family in Kabul as he had accepted that. He had also accepted that his cousin who lived in Nottingham was in contact with his mother, the Appellant's paternal aunt, who lived in Kabul. Mr McVeety submitted that the burden is on the Appellant to prove that he does not have a reasonable internal relocation option, and he had failed to discharge that burden, and the FTT had not erred in so finding.
The Appellant's Response
20. Mr Holt accepted that credibility findings had been made by the FTT, but submitted that reasons for the findings had not been provided.
21. At the conclusion of oral submissions I reserved my decision.
My Conclusions and Reasons
22. I will address all the grounds, even though, Mr Holt quite correctly in my view, placed no significance or reliance upon the first two grounds.
23. I find no error in the consideration by the FTT of the expert report at paragraphs 29-31. The expert did not refer to the report which had been specifically relied upon by the Respondent in the refusal decision. The grounds state that the expert was provided with a copy, although this is not confirmed by the expert in listing what documents he received at paragraph 1 of his report. However it is clear that the expert had the Respondent's refusal decision which contained extracts of the report.
24. The FTT was entitled to note the lack of any reference to that report by the expert and to conclude that this undermined his conclusions regarding forced recruitment. In any event, I do not find that this issue is material, as the FTT specifically found at paragraphs 34-35 that the Appellant could not return safely to his home area.
25. Referring to the second ground, I find no material error of law in paragraphs 32-33. The FTT did not require the Appellant to show that forced recruitment was prevalent. The decision needs to be read as a whole. It is clear that the appropriate burden and standard of proof was applied by the FTT, and specific reference is made in paragraphs 2 and 34. Again, I find that this ground is not relevant, taking into account the FTT finding that the Appellant could not return to his home area.
26. Thirdly I consider the FTT's consideration of the Appellant's claimed lack of contact with his family. I find no material error for the following reasons.
27. The FTT was entitled to find at paragraph 42 that it was not credible that the Appellant did not have any means of contacting his father, despite having spoken to him by telephone while in Bulgaria. The FTT was well aware of the Appellant's age, and applied (paragraph 34) a "liberal application of the benefit of the doubt." Notwithstanding that, the FTT was entitled to disbelieve this aspect of the Appellant's account, despite finding the core of his account broadly credible. It is not an error of law to believe some aspects of an account, but disbelieve others. The FTT applied the lower standard of proof, and did not find to a reasonable degree of likelihood that the Appellant had proved, notwithstanding that his father had provided the contact details of his cousin in Nottingham, and notwithstanding that he had a telephone conversation with his father, that he had made no attempt to obtain his father's contact details.
28. The FTT did not err in law noting at paragraph 45 that the Appellant's cousin in Nottingham has contact with his mother in Kabul. The FTT was entitled to note the lack of any evidence of efforts to contact the Appellant's family members in Kabul, which included a paternal uncle and aunt, and maternal uncle. The FTT was entitled to note the Appellant's evidence in his witness statement dated 30th September 2014 that he did not want to contact his family members in Kabul as he did not want to live with them in Afghanistan.
29. The burden of proving that there is no reasonable internal relocation is on the Appellant. He did not provide to the FTT any evidence that his uncles and aunt in Kabul would be unwilling to assist him. The FTT was therefore entitled to find that the Appellant had not proved that he did not have a network of family support available in Kabul, either through his parents or his uncles and aunt who reside there.
30. I do not find that the FTT misdirected itself, or failed to take into account relevant evidence. In my view the FTT made findings which were open to it on the evidence, and gave sustainable reasons for those findings.
Notice of Decision

The making of the decision of the FTT did not involve the making of a material error on a point of law. I do not set aside the decision. The appeal is dismissed.

Anonymity

An anonymity direction was made by the FTT. I continue that direction pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date 15th February 2017

Deputy Upper Tribunal Judge M A Hall

TO THE RESPONDENT
FEE AWARD

The decision of the FTT stands and therefore so does the decision to make no fee award.

Signed Date 15th February 2017

Deputy Upper Tribunal Judge M A Hall