Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04733/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Sent
On 13th September 2013

Before

upper tribunal JUDGE RENTON

Between

Az
(anonymity direction made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr E Nicholson, Counsel instructed by Osmans Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The Appellant is a male citizen of Afghanistan born on 14th March 1994. He arrived in the UK on 14th March 2008 and applied for asylum on 3rd April 2008. That application was refused, but the Appellant was granted discretionary leave on account of his age until 20th May 2011. On 18th May 2011 the Appellant applied for leave to remain. That application was refused for the reasons given in the Respondent's letter of 19th April 2012. The Appellant appealed, and that appeal was initially unsuccessful, but eventually the Upper Tribunal remitted the appeal to be heard afresh in the First-tier Tribunal. The appeal was therefore heard again by First-tier Tribunal Judge Braybrook (the Judge) sitting at Taylor House on 9th April 2013. He decided to dismiss the appeal on asylum, humanitarian protection, and human rights grounds for the reasons given in his Determination dated 10th April 2013. The Appellant sought leave to appeal that decision, and on 18th June 2013 such permission was granted.
Error of Law
2. I must first decide if the Judge made an error of law so that his decision should be set aside.
3. The Appellant's case is that he originates from a village named Laal Lywani in the Province of Paktia in Afghanistan. His father had been a Commander of the Hizb-e-Islami faction of the Mujahideen who had fought against the Soviet forces in Afghanistan. The Appellant was at risk in Afghanistan because the Taliban had made persistent approaches first to the Appellant's father and then to the Appellant directly himself in order to recruit him. Eventually the Appellant had fled Afghanistan, but the Taliban had continued to pressurise his family, and as a consequence the Appellant's parents had fled to Pakistan for their safety.
4. The Judge dismissed the appeal because although he accepted that the background information indicated that the Taliban may well have had a presence in the Appellant's local area and had attempted to recruit young men, the Appellant was not at risk on return because there was no evidence to the effect that the Taliban had particularly targeted the Appellant nor attempted to kidnap him. The Appellant's paternal cousin Kadr had had similar problems, and following the Appellant's departure from Afghanistan, his family had remained at home and had not been harassed by the Taliban. The Appellant had stated in his interview that he had come to the UK for his education and a better life.
5. The Judge went on to analyse the evidence concerning the whereabouts of the Appellant's family in Afghanistan. He found the Appellant's evidence on this point to be lacking in credibility because of inconsistencies, and rejected evidence given at the hearing from a man named Zaman Aryubi that he was the Appellant's uncle. However, the Judge accepted that at least some of the Appellant's family had moved to Peshawar in Pakistan after the Appellant had left Afghanistan, although the Judge was not satisfied that all of the Appellant's uncles had left for Pakistan and that the Appellant would be without family support if he returned to Afghanistan. Therefore the Judge found that the Appellant would not be at risk on return to his home area, and that it would not be unreasonable by way of being unduly harsh for him to relocate to Kabul.
6. As regards the Appellant's Article 8 ECHR rights, the Judge found that the Appellant had no family life in the UK, but accepted that during his time in the UK the Appellant had developed a private life, although there was little evidence as to its detail. The Judge accepted that the Respondent's decision amounted to an interference with that private life of such gravity as to engage the Appellant's Article 8 rights, but found that the interference was proportionate.
7. Mr Nicholson argued that the Judge had erred in law in coming to these conclusions. Mr Nicholson referred to the grounds of application and submitted that the Judge had erred in law in finding the Appellant not to be at risk on return because he had not been targeted by the Taliban. There was objective evidence that at the relevant time the Taliban were active in the Appellant's area recruiting young men, and following the decision in R v SSHD ex parte Selladurai Jeyakumaran [1994] IAR 45, there was no duty upon the Appellant to show that he had been targeted or singled out in order to establish risk. The risk to unattached children had been established in AA (Unattended children) Afghanistan CG [2012] UKUT 00016 (IAC). The Judge had erred by relying on the decision in EU (Afghanistan) v SSHD [2013] EWCA Civ 32 to come to a different conclusion. EU was not a country guidance case. Mr Nicholson went on to argue that the Judge had not indicated what standard of proof he had applied when considering the evidence, in particular that given by Mr Aryubi. The Judge did refer to the lower standard of proof without saying what that meant. In addition, the Judge had erred in law when rejecting the evidence of the Mr Aryubi by referring in paragraph 38 of the Determination to a "change of evidence". There was no such change of evidence. This error was material because it had led to the Judge's conclusion that the Appellant would not be without family support if he returned to Afghanistan.
8. Mr Nicholson next argued that the Judge had erred in law in deciding the appeal before the Respondent had attempted to trace the Appellant's family in Afghanistan or elsewhere in accordance with her obligation. Had the Respondent fulfilled her obligation in this way, there would have been no need for the Appellant to prove that his family had fled to Pakistan. The Respondent's duty arose prior to any assessment of credibility, and the decision in EU (Afghanistan) v SSHD [2013] EWCA Civ 32 should be interpreted accordingly.
9. Finally, Mr Nicholson argued that the Judge had erred in law by deciding the Appellant's Article 8 ECHR rights when there was no decision to remove the Appellant. This might prejudice any decision by the Respondent in the future to remove the Appellant.
10. In response, Ms Everett argued that the decision of the Judge did not contain any material error of law. The Judge had made his comments about the Appellant not being targeted only in the context of the Appellant's evidence. He had not imposed any new legal test that "singling out" was necessary to establish risk on return. It may be the case that the Judge did not specify what standard of proof he had applied, or explain that standard, but there was no indication that he had applied a standard higher than the lower standard applicable in asylum cases. The Judge's findings at paragraph 22 of the Determination were in line with the Appellant's evidence. The Judge had given full and cogent reasons for disbelieving the evidence of Zaman Aryubi.
11. Ms Everett then argued that the Respondent's failure to attempt to trace the family of the Appellant had no effect upon the Judge's findings of credibility concerning the evidence as to the whereabouts of the Appellant's family. Therefore any failure to trace was immaterial to the Judge's decision to dismiss the appeal. Finally, Ms Everett submitted that the Judge had been entitled to consider the Appellant's Article 8 ECHR rights and to decide upon them.
12. I find no material error of law in the decision of the Judge. I do not agree with the argument of Mr Nicholson that the Judge decided the issue of risk on return by reference to a new legal test of whether the Appellant had been singled out or not. A careful reading of paragraph 22 of the Determination indicates that the Judge in his finding that the Appellant had not been particularly targeted by the Taliban was merely giving one of a number of reasons for finding that the Appellant was not at risk on return. Although he did not say as much, the Judge was applying the decision in HK and Others (Minors - indiscriminate violence - forced recruitment by Taliban - contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) where it was written:
"While forcible recruitment by the Taliban cannot be discounted as a risk, particularly in areas of high militant activity or militant control, evidence is required to show that it is a real risk for the particular child concerned and not a mere possibility."
13. There is no legal requirement for the Judge to specify the standard of proof applied, nor to explain what any standard of proof means. The Judge referred to the lower standard of proof, and it is apparent from reading the Determination as a whole that he applied the correct standard when making his findings of fact of a serious possibility or a reasonable likelihood.
14. I further find that the Judge did not err in law in deciding the appeal without the Respondent discharging her duty imposed by Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005. As decided in cases such as SHL (Tracing obligation/trafficking) Afghanistan [2013] UKUT 00312 (IAC), such a failure is not determinative of the issue of risk on return. In this case the consequences of the failure are not material for the reasons which I will explain later.
15. I also find that the Judge was not perverse in rejecting the evidence of Mr Aryubi. His finding that Mr Aryubi was not credible was one open to him on the evidence before him and which he fully explained. The Judge gave a number of reasons for disbelieving some of the evidence of Mr Aryubi in paragraphs 26 to 30 of the Determination which are sufficient to sustain a finding of a lack of credibility even if it is the case that the Judge erred in subsequently referring to a change of evidence.
16. Finally, it is not an error in law to consider the Article 8 ECHR rights of the Appellant where there is no decision to remove him. The Judge is not concerned with how such a decision might be viewed by the Respondent. In any event, the appeal was dismissed on asylum and humanitarian protection grounds and the Judge's Article 8 decision was irrelevant to those grounds.
17. In any event, any error of law made by the Judge I find to be immaterial. This is because on the Judge's finding of facts, in respect of which there was no error of law, the Appellant's appeal could not succeed on the basis that it is safe for him to return to Kabul. In H and B v UK (Application number 70073/10 and 44539/11) ECtHR (fourth section) it was decided that UK courts were correct to find that, in general, relocation to Kabul for young single males would not be unsafe or unreasonable. The Appellant is no longer a child. At the time of the hearing before me, he was about six months short of his 20th birthday. Therefore in deciding that the Appellant would not be at risk on return to Afghanistan as a child I am not applying any sort of "bright line" test. Even on the Appellant's own account, he does not have a sufficient profile for there to be any real risk that the Taliban would want to trace him, or be able to trace him, in Kabul. I find that it would not be unreasonable by way of being unduly harsh to expect the Appellant to return and settle in Kabul. Even if it is the case that the Appellant now has no family in Afghanistan, he is a healthy young man who has the attributes which have enabled him to adjust to life in the UK.
Decision
The making of the decision of the First-tier Tribunal did not involve the making of a material error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal made an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed Date 19th September 2013

Upper Tribunal Judge Renton