Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/06825/2014

THE IMMIGRATION ACTS

Heard at Birmingham Employment Centre
Decision and Reasons Promulgated
On 29 November 2016
On 07 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE McCARTHY

Between

abdul haque
(no anonymity order)
Appellant
and

SECRETARY OF STATE FOR the HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr R Martin, instructed by IAS Birmingham
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. On 25 March 2015, Deputy Upper Tribunal Judge Chamberlain granted the appellant permission to appeal against the determination of First-tier Tribunal Judge Broe that was promulgated on 7 November 2014.
2. In his determination, Judge Broe decided the appellant was not a refugee from Afghanistan or otherwise in need of international protection. Judge Broe also concluded the appellant did not benefit from articles 2, 3 and 8 of the human rights convention.
3. Judge Chamberlain granted permission because in her opinion it was arguable Judge Broe had erred in law by not having proper regard to the guidance given by the Court of Appeal in KA (Afghanistan) about the evidential advantage an asylum-seeking child might derive from the duty on the respondent to trace his family. She also granted permission in terms of Judge Broe's article 8 assessment.
4. After discussing the legal issues with Mr Martin and Mr Richards, I concluded there is no legal error in Judge Broe's determination. I reserved my reasons, which I now give.
5. I begin with paragraph 34 of Judge Broe's determination. Because it is central to the arguments in this appeal, it is appropriate to cite it.
"34. I have considered the matter of family tracing. I note the efforts described in the reasons for refusal letter and accept that they were made. I am not persuaded that the Appellant has been disadvantaged in any way by the matter particularly bearing in mind his lack of credibility regarding his family."
Judge Broe says nothing more about family tracing in his determination.
6. The first issue is whether Judge Broe was properly seized of the facts in the appeal he heard. It is unclear to what he is referring when he refers to "the efforts described in the reasons for refusal letter" because in paragraphs 93 to 95 of the reasons for refusal letter dated 29 August 2014, the respondent conceded that she had not discharged the duty to endeavour to trace the appellant's family in Afghanistan during the time he was a child in the UK. The respondent explained that such tracing was impossible because of the lack of resources in Afghanistan. The respondent also identified the fact the appellant had admitted to having had contact with his mother up until towards the end of his period of discretionary leave (which expired on 16 October 2012).
7. I understand the appellant's confusion regarding Judge Broe's comments and accept it is evidence that Judge Broe did not fully appreciate this part of the case because the respondent admitted to making no effort to trace the appellant's family. However, I do not accept that this error is material to the outcome because of the finding made, which draws on the fact no family tracing had been undertaken. It is to that finding that I turn because it forms the second issue.
8. The appellant complains that had the respondent complied with the family tracing duty, then it may have provided evidence corroborating his account that he had no contact with his family. Therefore, despite what Judge Broe concluded, he had been disadvantaged.
9. I do not agree for a number of interrelated reasons.
10. There is no indication the appellant challenged the respondent's assertion that it was impossible to carry out family tracing in Afghanistan because of the lack of resources when the appeal was heard by Judge Broe. Nor is such an argument mounted now. It is, of course, contrary to the overriding objective of any court of tribunal to expect a party to do the impossible and even if the law imposes a duty on a state to do something, reason must prevail. Therefore, even with the presence of the duty in law, the appellant cannot realistically complain of being disadvantaged by it not being carried out when there are good reasons why it cannot be.
11. In addition, the argument presented by the appellant does not take into account a raft of other authority explaining the ambit of the benefit identified by the Court of Appeal in KA (Afghanistan). In addition to that case itself, I must have regard to EU (Afghanistan) & Ors v SSHD [2013] EWCA Civ 32, TN, MA and AA (Afghanistan) v SSHD [2015] UKSC 40 and even more recent RS (Afghanistan) v SSHD [2016] EWCA Civ 1179. In light of those authorities, the appellant cannot expect a positive outcome.
12. In applying the case law, it must be recalled that Judge Broe was the second judge to deal with the appellant's case. Judge Hall had dealt with the appellant's earlier appeal at the end of 2009 and had found the appellant was not credible with regard to his accounts of events in Afghanistan including in relation to his family. Judge Broe correctly used these findings as his starting point. The fact the appellant knew throughout 2010, 2011 and most of 2012 that his account in relation to his family was not accepted, and although the appellant admitted to being in contact with his mother during those years, the appellant obtained no evidence from her.
13. In this context I find it to be of concern that the appellant accuses the respondent for not doing something when the burden of proof always lay on him to prove his case to the lower standard of proof. In referring to the appellant, I am of course referring to his legal advisers who would have been able to assist and were under a duty of care so to do.
14. Ultimately, I must find that the failure of the respondent to trace the appellant's family had no bearing whatsoever on Judge Broe's assessment of the appellant's credibility. There can be no presumption that the appellant would have benefited from evidence obtained via family tracing. The judge considered the evidence he had and reached cogent reasons for his finding that the appellant could not be believed.
15. Having dismissed this appeal in relation to the protection issues, I move on to consider the remaining ground, which relates to the article 8 assessment. Mr Martin submitted that Judge Broe had failed to take proper account of the length of time the appellant had been in the UK (he arrived here when he was just 13) and the ties he had developed since he arrived.
16. In essence, I find the current ground seeks to suggest that the mere passage of time is sufficient to make any expulsion disproportionate. I am aware the UK government recognises through the immigration rules that length of time in the UK will be a determinative factor in two situations, namely where a person aged between 18 and 25 has spent all their life in the UK, and where a person over 18 has spent more than 20 years in the UK continuously. Although determinative, even these provisions are not conclusive as they are conditional on the person meeting the suitability requirements.
17. The appellant did not and does not benefit from these provisions. There are no other provisions within the law from which the appellant might benefit by mere length of residence in the UK and therefore he falls to be considered under the general provisions of article 8. There is no support in case law relating to article 8 that length of residence is a determinative factor other than in the most extreme cases. It is always a relevant factor but it is for the judge to decide what weight to give it.
18. It is not disputed that Judge Broe adopted the proper approach to consider the appellant's private and family life rights as protected by article 8 ECHR. Nor is it disputed that the appellant sought only to rely on elements of his private life, having no family in the UK. Nor is it disputed that the evidence before Judge Broe was very limited in respect of what private life the appellant had established in the UK. Judge Broe recorded at [16], that the appellant had been studying in the UK and enjoys playing cricket and going to the gym and Mr Martin admitted there was no other evidence of note about the appellant's private life in the UK.
19. Judge Broe took into consideration the length of time the appellant had been in the UK when he assessed proportionality. At [38] he identified the appellant had been in the UK for five years. I am satisfied, therefore, that Judge Broe did not ignore the period of residence. It is evident from [38] and [39] that Judge Broe looked for other factors that might indicate the appellant's private life as established in the UK might outweigh the public interest considerations he had already recognised. Judge Broe decided the evidence of the appellant's personal circumstances did not tip the balance in his favour. Given the very limited evidence, I find this conclusion is not only unsurprising but also correct in law.
20. Because none of the grounds are made out, the appeal fails and I uphold the decision of Judge Broe.

Decision
There is no legal error in the determination of Judge Broe and I uphold his decision.

Signed Date
Judge McCarthy
Deputy Judge of the Upper Tribunal 08 December 2016