Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04272/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 31 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

Palwasha [K]
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Neale, instructed by Duncan Lewis & Co Solicitors
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Afghanistan. She appealed to a Judge of the First-tier Tribunal against the respondent's decision of 27 February 2015 to remove her as an illegal entrant from the United Kingdom. Her asylum claim was also refused.
2. The appellant claimed to be at risk in part on account of her husband's activities, who, she says, had worked for the government for five or six years in intelligence, informing on the Taliban. He had gone missing after a suicide bomb blast and rumours had spread that he was involved in that. The Taliban had reported that he had died but there was no evidence of that. About a month earlier than this, one of her sons had gone to the Madrassa as usual but failed to return and his dead body was subsequently identified by her husband. Subsequently she and her husband had refused to allow their children to return to the Madrassa and when the Taliban asked why they said it was because he had gone missing from there. It was at that time that she had become aware from her husband of his intelligence work.
3. After her husband's disappearance she remained at her in-laws for three or four months, but was ill-treated by them and pressure was put on her to marry her brother-in-law. With the help of an agent her father arranged for her to come to the United Kingdom. She initially said at interview that she had not seen her husband but subsequently said she had met him in an unknown country where she was staying with relatives and who had taken her to him and from there they and the children went on to "the jungle", which was presumed to be near or in Calais. She had sent her husband and his brother to fetch milk but in the time they were away she and the children were put in a car and taken from the camp and she said she had had no contact with him subsequently. She claimed to be at risk on return from the government because they believed her husband had carried out the bombing, from the Taliban because many of her in-laws were members of the Taliban or sympathisers and as she had run away and taken the children it was a matter of honour and she would be killed if returned, and she also feared that as her sons got older the Taliban would take them to be trained and force her daughter to marry early. She also claimed to fear her in-laws because they were trying to force her to marry her brother-in-law in accordance with their culture.
4. The judge found the appellant to lack credibility. She accepted that in a patriarchal society the appellant would not have had any in-depth knowledge of her husband's work but said that she had not explained how the village people discovered that her husband was working in intelligence or came to understand that he was spying, before she did. The judge said that the appellant's evidence concerning her visit to the government office and what she was told was discrepant. She said there was no evidence to link the disappearance and death of the appellant's son to her husband's activities. The judge went on to say that in any event the appellant's evidence was that for three or months following the disappearance of her husband she lived with her in-laws. If she were at risk from the government or the Taliban, both would have had ample time to take action against her but had not done so. She had stated in her screening interview that the Taliban had issued an arrest warrant but there was no evidence of that and the judge did not accept it. There was no evidence that the appellant had received any threats or visits from government sources or the Taliban when she was living with her in-laws and the judge therefore found that she was of no interest to the authorities or to the Taliban.
5. The judge went on to say that she did not find it credible that the appellant did not make enquiries of her husband about where he had been when they were reunited in an unknown place before travelling on to "the jungle" or that they did not make or attempt to make plans to travel together on the final leg of the journey. She considered that the explanations of the attempts made by the appellant to trace him were unsatisfactory. She had said she had tried but was very busy with her children, but when asked what methods she had used she had failed to answer the question. The judge noted that it was the appellant's father who had made the arrangements with an agent and considered that as a consequence he had contact with people who it was reasonable to assume could make enquiries concerning the appellant's husband's whereabouts. It was known that he was in Calais at a given date and had been taken there along with the appellant and children shortly before the appellant embarked on the last leg of her journey. The judge concluded that she was unable to make any finding as to the appellant's husband's whereabouts but she did not believe the appellant's account as to what had happened in the jungle.
6. As regards the claimed fear from her in-laws, the judge noted that the appellant had failed to mention in her screening interview or substantive interview that they were Taliban supporters and because of his former intelligence work her husband could not contact them. She described this as a significant omission from the appellant's earlier written evidence and went to credibility but she had decided not to attach weight of significance to it. She found that there was no good reason for the appellant not to inform her in-laws that her husband was still alive or for him to inform his parents. On her own evidence she was not a widow but the judge accepted, given that she was unable or unwilling to supply any information about her husband's whereabouts and there was no independent evidence about him from any other source, that she would be regarded as the head of the household. As a widow her wellbeing depended largely on the goodwill of her missing or deceased husband's family, and she would be considered the property of her husband's family and might be forced into levirate marriage requiring her to marry a close male relative of her late husband.
7. The judge noted the decision of AK [2012] UKUT, that in general returning to Kabul was not safe or unreasonable and stated that the appellant would not be in the position of a lone woman without protection if returned to Kabul as she had close family there including her including her father and brothers on whom she could rely to support her and her children and protect her from her in-laws should she come to their attention. The judge noted the appellant's claim that she could not return to her father's house but found no support for this in the background material. The judge was satisfied that the appellant had a male support network available to her in Kabul such that relocation there was a reasonable option. In the alternative there were women's shelters in Kabul to which she could go. Having found that the appellant would not face a risk on return from anyone, the judge dismissed the appeal with regard to asylum and also humanitarian protection. She also dismissed the appeal in respect of Article 8.
8. The appellant sought permission to appeal against this decision on the basis that inadequate reasons had been given for various of the findings of fact, and also there had been a failure to take into account material background evidence. Permission was refused by both a Judge of the First-tier Tribunal and an Upper Tribunal Judge, but subsequently on a Cart judicial review Mrs Justice Cheema-Grubb granted permission and as a consequence the matter comes before me.
9. In his submissions Mr Neale relied on and developed the points made in his consolidated grounds of appeal. The judge had accepted that there was a risk of forced levirate marriage as the appellant was perceived by her husband's family as being a widow. As a consequence, risk in the home area had been accepted, but the judge had found that the appellant could relocate to Kabul as her father and brothers were there.
10. The judge had erred in finding that her father and brothers could act as her male protectors and that her husband's family could not track her down in Kabul. The judge had overlooked background evidence referred to at paragraph 9 of Mr Neale's skeleton. It could be seen that a widow was considered the property of her deceased husband's family and the authorities often actively collaborated with families to return women. If the judge did not accept that evidence it was incumbent upon her to say why. Given the acceptance of risk in the home area she could not live as a lone woman in Afghanistan and the judge had fallen into error in failing to dealing with all this evidence.
11. The appellant also challenged the credibility findings. The judge had not accepted that there was risk from the Taliban or the government. It was unclear what she meant by "village people" at paragraph 44 of her decision. The appellant had not claimed that the general population of the village were aware of the intelligence activities of her husband. If the judge had meant to refer to the Taliban by this phrase, it was unclear why she had found it to be incredible.
12. Also with regard to the reference to discrepancies at paragraph 44 it was not clear what evidence was referred to but if it was with reference to paragraph 4.j. of the refusal letter, the appellant had explained that in her witness statement. The judge did not have to believe her, but if she did not she had to say why she did not.
13. With regard to paragraph 45 and the judge's reference to the appellant not being targeted when she was living with her in-laws, this misunderstood the nature of her claim. She would be at risk if her husband was alive and everybody believed him to be dead. So she had problems either way in that if he were dead or assumed to be dead then she faced the risk from his family and if deemed to be alive or actually alive then risk from the Taliban and the government. The UNHCR guidelines were relevant with regard to risk to families of pro-government operatives. There was no other clear basis for the judge arriving at her adverse findings on credibility. The point at paragraph 46 about her husband and "the jungle" was a separate issue but essentially with regard to events in Afghanistan the issue of credibility was dealt with at paragraphs 44 and 45. If she were targeted by the Taliban or the government that was relevant to relocation. The grounds were in the alternative but either was sufficient for the decision to be set aside.
14. If the Tribunal were with Mr Neale and if the findings about risk of marriage in the home area were preserved there as the question of relocation to Kabul and the Tribunal might find she could not relocate to Kabul at which point the new evidence would be relevant. If not there should be remittal to a First-tier Judge for a rehearing. The findings at paragraph 47 should be preserved but the Tribunal would need to make new findings about her history and risk from the government and the Taliban on relocation to Kabul.
15. Mr Jarvis put in the decision of the Supreme Court in MA (Somalia) [2010] UKSC 49. He argued that the grounds missed the point. It was clear that the judge had significant and serious concerns about the appellant's evidence as to where her husband was. At paragraph 46 she had found unsatisfactory the evidence about the efforts to trace the husband. It was likely that enquiries had already been made. The respondent did not accept that the husband was outside Afghanistan. The judge had made it clear that she did not believe the appellant's account of what had happened in "the jungle". This was relevant to relocation. She had lied about her husband's whereabouts. The matter had to be considered in line with MA (Somalia), at paragraphs 47 and 48, where a person had not told the truth about a relevant matter they had failed to make out their claim on that particular point. She had failed to show where her husband was. The judge also had noted at paragraph 47, albeit attaching no weight of significance to it, that she had failed until late on to mention that her in-laws were Taliban supporters and could not contact them. The judge had not accepted, at paragraph 45, that an arrest warrant had been issued by the Taliban.
16. As regards the challenge to the credibility findings, only some aspects had been challenged by Mr Neale. It was clear that the reference to the "village people" was a reference to the people in the village, bearing in mind that it was a Taliban area, and they were the people who believed that her husband was responsible for the bombing. This could be seen by referring back to paragraph 19 where the judge had noted from the appellant's witness statement that she had said that the Taliban and people in her area believed her husband was responsible for carrying out the suicide bomb attack. The appellant would have been aware of the general attitude about her husband in the village.
17. With regard to the reference to a discrepancy, at paragraph 44, the judge had identified at the hearing the reference to the appellant visiting the government office, and when one read the determination it was clear that the submission about this was at paragraph 29 from the Presenting Officer that it was incredible that the appellant knew nothing about her husband's work and yet was able to attend a government office when searching for him. The judge needed to say no more than that.
18. With regard to paragraph 45 of the judge's decision, the point was that if the Taliban and the government thought that the appellant's husband was of adverse interest the judge was entitled to look at what the appellant did next and she had seen it as significant that the appellant remained with her in-laws in a Taliban-controlled area and there had been no adverse interest from either side. It should be questioned why the Taliban or the government would not be interested in the family if there was already an adverse interest in the appellant's husband. The lack of truth about the arrest warrant was material and significant.
19. With regard to the second ground, the judge, at paragraph 47, had found no reason why the appellant or her husband could not or did not contact his family in Afghanistan to say that he was still alive. There was no good reason for her not to tell them or why he could not have done that. Mr Jarvis argued that the judge was wrong to say that the appellant would be regarded as the head of the household. This misunderstood MA (Somalia). There was no need to say that she had to be willing to supply information about her husband's whereabouts or she could maintain a lie and obtain status that way. The credibility findings as a whole were sound. There was no good reason why the husband's family and her family did not know that he was alive. She would return not as a widow but as an unknown local or she could return to her in-laws, not as a widow. The evidence on relocation was a red herring. The findings undermined the causal link between her return as a lone woman with no family support. She had said as recorded at paragraph 22 that the police would not involve themselves, but even if that were wrong, the issue was different. There was no adverse interest in her from the government or the Taliban and no need for anyone to tell them that her husband was alive.
20. By way of reply Mr Neale argued that in effect Mr Jarvis was seeking without a cross-appeal to challenge the judge's findings of a risk of a levirate marriage. If there were an arguable error of law the respondent should have cross-appealed. The submissions on behalf of the respondent read a lot into the judge's findings including the claimed inference that the family knew that the husband was alive, which should be compared with the finding at the end of paragraph 47. The findings of a risk of a forced levirate marriage were unchallenged and that was why relocation fell to be considered and that was the basis upon which the appeal was to be considered.
21. If it were the case as Mr Jarvis suggested, with regard to paragraph 44, it was the case that the appellant had not claimed that the people in the village knew about her husband. This was speculation as to what the judge had meant with regard to the discrepancies as to what she had been told by the government. If it were on the basis suggested by Mr Jarvis she had not said that in contrast to the point at paragraph 4.j. of the decision letter. It was necessary for the reasons to be clear.
22. With regard to paragraph 45, it was not speculative. The risk was contingent on the husband being alive and that was her case, so when they believed him to be dead it did not imply that if he was known to be alive she would not have problems.
23. I reserved my determination.
24. It seems logical to take first the issue of the judge's credibility findings as those concern risk, and then come on to the question of internal relocation.
25. The appellant's evidence as recorded at paragraph 19 of the judge's decision was that the Taliban and people in her area believed her husband was responsible for carrying out the suicide bomb attack. This is not quite the same thing, however, as the finding at paragraph 44 that the village people discovered her husband was working in intelligence or came to understand that he was spying, before she did. As regards to the visit to the government office, her evidence as recorded at paragraph 10 of the judge's decision was that the appellant and her father-in-law and brother-in-law went to a government office to enquire and were told that her husband had carried out the attack but had died; alternatively they asked her about her husband's whereabouts. This, I agree with Mr Neale, appears to be the discrepancy to which the judge was referring, I also agree that the appellant gave an explanation of this at paragraph 3 of her statement where she said that the Taliban and the people in their area believed her husband was the person who had carried out the attack but the government said it seems though he had carried out the attack but they were unable to identify the body and so were unsure and were asking if she knew about his whereabouts. The judge did not say what she made of that explanation.
26. Perhaps of greater significance is the judge's conclusion that if the appellant were at risk from the government or the Taliban both would have had ample time to take action against her but did not during the three or four months after her husband's disappearance when she lived with her in-laws. The point in this regard is that since it was believed that her husband was dead, she did not face risk on his account, and as a consequence it would only if he were believed to be alive that difficulties would arise for her. I accept the submission that the judge appears to have misunderstood the appellant's case in this regard and the adverse finding fails to take into account the basis upon which the claim was put. This led the judge to conclude that she was of no interest to the authorities and of no interest to the Taliban. Further the judge went on to express doubts, at paragraph 46 of her decision, about the appellant's husband's whereabouts and the lack of credibility of her evidence in that regard. She had already concluded that there was no risk from the authorities or from the Taliban on a basis which I consider to be flawed. Nor is there any effective engaging with the background evidence referred to by Mr Neale that was before the judge in respect of relocation. Although none of that deals with the specific circumstances of the appellant, there is enough in that evidence with regard to the situation of a widow rejecting levirate marriage, and the risk from the authorities to a woman in that position, that the judge at least was required to address this evidence even if she concluded that it did not preclude her coming to a finding adverse to the appellant on internal relocation.
27. In conclusion I consider that the judge did err materially with respect to the credibility findings and also with regard to internal relocation. It is right, I consider, to maintain the finding to be found in the closing sentence of paragraph 47 concerning the risk of being forced into levirate marriage by her husband's family, which raises questions of relocation in any event. Findings require to be made on the issue of risk from the authorities and from the Taliban. To that extent therefore the matter is remitted for a rehearing subject to the protected finding from paragraph 47, before a First-tier Judge other than Judge Griffith sitting at Taylor House.

Signed Date

Upper Tribunal Judge Allen 31 October 2016

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date

Upper Tribunal Judge Allen 31 October 2016