Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA059142014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 8 June 2016
On 15 June 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

W T
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A Radford, Counsel, instructed by J D Spicer Zeb Solicitors
For the Respondent: Mr P Duffy, Home Office Presenting Officer

DECISION AND REASONS

Background
1. The appellant in this case is a male citizen of Afghanistan. He arrived in the UK clandestinely and claimed asylum on 4 October 2010. His asylum application was refused on 23 November 2010 but he was given discretionary leave to remain until 31 July 2013 because he was a minor. He applied for further leave to remain on 20 June 2013. That application was refused. The appellant's first appeal against that decision was allowed on asylum grounds and under Articles 2 and 3 in a decision promulgated on 28 September 2014.
2. The judge found that the appellant was aged 17 having been born on [ ] 1997. The Upper Tribunal set aside the decision of the First-tier Tribunal, in a decision promulgated on 17 February 2015, as the Upper Tribunal found an error of law in the First-tier Tribunal Judge's failure to give adequate reasons for departing from the age assessment made by the London Borough of Croydon which found that the appellant was born on [ ] 1996. The appeal was remitted back to the First-tier Tribunal with none of the findings of fact preserved.
3. Judge of the First-tier Tribunal Kaler subsequently dismissed the appellant's appeal in a decision promulgated on 4 April 2016. The appellant again appealed with permission. The appeal came before me.
Error of Law
Ground 1
4. It was argued that Judge Kaler erred in making adverse findings about the failure of the appellant to give information to the Red Cross about his family without asking the appellant any questions on this matter. A letter from the Red Cross identified one person whose details the appellant had supplied, but he was a neighbour and not a family member.
5. Although the judge granting permission to appeal to the Upper Tribunal was not persuaded in relation to the first ground, Mr Duffy conceded this ground was properly arguable before me.
6. Ms Radford submitted a helpful note of the hearing before Judge Kaler which indicated that at the start of that hearing that the judge advised the appellant as follows:
"This is your appeal against decision to refuse you asylum - appeal was allowed but then Upper Tribunal overruled, so that's why back here - hear everything afresh - not binding on me - had the transcript - can have a look at it."
7. It was argued by Ms Radford and not disputed by Mr Duffy that the appellant had previously told the First-tier Tribunal, at his first appeal, what family details he gave to the British Red Cross to assist with his tracing request and that this included the details of the "whole family, specifically his mother, father, brother and grandfather". Although the appeal was remitted de novo to the First-tier Tribunal, it was not disputed by Mr Duffy that this evidence was both unchallenged and accepted as credible by the First-tier Tribunal at the appellant's first hearing.
8. In light of this it was conceded by Mr Duffy, that it would not therefore have been obvious to the appellant or his representative that he needed to repeat all the contents of his examination-in-chief again, particularly given that the First-tier Tribunal Judge at his second hearing stated that she had a record of the evidence in his previous appeal and could refer to it.
9. I had before me counsel's note of the evidence given at the hearing on 18 September 2014 in relation to the appellant giving details of his entire family to the Red Cross but that the Red Cross asked for the name of a well-known person and the appellant therefore gave the name of A T, a villager who was a neighbour. It is also recorded that the appellant gave evidence that the Red Cross would have a problem finding people through women's details, which was another reason why this individual's details were given.
10. I am satisfied therefore that the First-tier Tribunal Judge erred in making assumptions about what the appellant had told the British Red Cross without specifically asking the appellant about this issue and without any evidence to support that conclusion.
11. The judge's failure to put to the appellant her concern about the content of the British Red Cross letter which led to her conclusion that the appellant had "not assisted" the Red Cross and had made a disingenuous tracing request led to the judge consequently giving no weight to the Red Cross' inability to trace the appellant's family. This led to the judge concluding at [53] and [63] that the appellant would have contact with his relatives if he were returned to Afghanistan. This was material to the judge's conclusions on the conditions the appellant would face in Kabul and led to the judge distinguishing AA (Afghanistan) [2012] UKUT 00016 (IAC).
12. The error was material to the judge's credibility findings generally as Mr Duffy did not dispute that the aspect of the appellant's case on which the First-tier Tribunal Judge Kaler made a negative comment on credibility was specifically in relation to whether he was genuinely unable to contact his family. I am of the view that this in turn is material to the judge's findings as to the family's real reasons for sending the appellant abroad [although the judge clearly did make findings that the appellant's father was not of interest to the authorities and also found that there was no basis for fearing that the appellant might be harmed by his relatives had he remained in Afghanistan].
13. However, I am satisfied that the judge's failure to take into account the appellant's previous evidence, having indicated to the appellant that she could make reference to it, coupled with her failure to put her concerns to the appellant in relation to the Red Cross letter, amounts to an error. This was procedurally unfair and the error is material as it led to the judge finding that the appellant had not assisted the Red Cross and that he made his way to the UK with the assistance and encouragement of his relatives.
14. Although, as noted above, the judge did make separate findings in relation to elements of the appellant's claim which were not accepted, it cannot be said definitively that she would have reached the same conclusion had she not made the error in relation to the appellant's failure to assist the Red Cross tracing efforts.
15. Mr Duffy conceded that the first ground of appeal was made out. It is not necessary accordingly to consider the second ground as I find that the first ground discloses a material error of law such that the decision of the First-tier Tribunal should be set aside in its entirety.
16. However, for completeness it was the argument on behalf of the appellant that the First-tier Tribunal's consideration under the Immigration Rules was inadequate as it amounted to no more than: "I find that he does not qualify for leave to remain under the Rules". Although the judge went on to make findings outside of the Immigration Rules and I am of the view that it cannot be said that such findings can never be determinative of the appeal under the Immigration Rules, in this case I accept that the judge fell into error.
17. The judge did not give specific consideration to the appellant's vulnerability as a result of his diagnosis with Borderline Personality Disorder and Major Depressive Episode. Although the judge made findings that she was bound by KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354 and therefore in the judge's view the appellant would not be entitled to leave under Article 8 either, that does not in itself definitively settle whether this appellant might succeed in demonstrating that there are very significant obstacles to his integration back into Afghanistan. The judge also failed to make any findings in relation to the evidence and submissions that were before the judge in relation to this issue under the Immigration Rules.
18. Again, Mr Duffy conceded that he was also in difficulties on this ground. That must be particularly the case as the error under ground 1, in relation to the appellant's ability or otherwise to trace his family, is potentially relevant to his ability as someone with diagnosed mental health difficulties, to reintegrate back into Afghanistan. There were no factual findings as to the claimed disappearance of the appellant's father and brother, nor to the claimed Taliban involvement of the appellant's father. At paragraph [40] although the judge did not find that the appellant's father was of interest to the authorities for teaching Taliban students she went on to state that the authorities may have questioned him once or twice but that could have been in connection with any number of matters. It is not clear therefore whether any Taliban involvement was accepted.
19. As the errors turn in large part on the appellant's credibility regrettably a complete rehearing of this appeal is again necessary as was the agreed view of both parties before me. Although the appellant has already had two appeals in the First-tier Tribunal, I am persuaded that such a rehearing should take place in the First-tier Tribunal particularly in view of the fact that the error in ground 1 resulted in the appellant being deprived of a fair hearing.
Notice of Decision

The decision of the First-tier Tribunal contained an error of law, such that it should be set aside in its entirety.

Directions

This appeal is remitted to the First-tier Tribunal for a hearing de novo before any judge apart from Judge Kaler and Judge Callender Smith. For the avoidance of doubt no findings of fact are preserved from any of the previous hearings and the appellant should not rely on any evidence previously given before the First-tier Tribunal.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 13 June 2016

Deputy Upper Tribunal Judge Hutchinson