Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07155/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 October 2016
On 17 October 2016

Before

UPPER TRIBUNAL JUDGE FINCH

Between

AH
(ANONYMITY ORDER IN PLACE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. A. Eaton of counsel, instructed by South West Law Centres
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

History of Appeal

1. The Appellant, who was born on 1 January 2000, is a national of Afghanistan. He left Afghanistan in 2014 and his fingerprints were recorded in Hungary on 19 March 2014. He applied for asylum in the United Kingdom on 7 May 2014,

2. His date of birth was initially found to be that of 1 January 1997 on 20 May 2014 and he had his screening interview on 30 May 2014. He said that he feared persecution by the Taliban, who had killed his father and believed that he and his father had been spying for the Americans. A substantive asylum interview took place on 17 September 2014 and a second age assessment was conducted on 3 November 2014, which found him to be 17 years of age. He was refused asylum on 4 November 2014 and his date of birth was deemed to be 1 January 1996.

3. The Appellant's appeal came before First-tier Tribunal Judge Lewis on 18 February 2015. By this time, the London Borough of Lewisham had revised its age assessment and concluded that the Appellant was only 15 years of age. As a consequence, counsel acting for the Respondent invited the Judge to remit the case to the Respondent for a re-consideration. First-tier Tribunal Judge Lewis allowed the appeal to the extent that the fact that the decision had been reached whilst it was believed that the Appellant was older than he was meant that the decision not to grant him asylum was not in accordance with the law.

4. The Respondent made a further decision on the Appellant's application on 10 April 2015 but maintained the decision to refuse him asylum and discretionary leave to remain. The Appellant appealed against this second decision on 23 April 2015.

5. The Appellant's appeal came before First-tier Tribunal Judge Andonian on 22 July 2016 and he dismissed the appeal in a decision promulgated on 15 August 2016. The Appellant applied for permission to appeal to the Upper Tribunal on 30 August 2016 and First-tier Tribunal Judge Fisher granted him permission to appeal on 9 September 2016.

Error of Law Hearing

6. The parties had had the opportunity to discuss the appeal before the case was called on. Ms Brocklesby-Weller informed me that she accepted that there were fundamental flaws in the decision by First-tier Tribunal Judge Andonian and that the appeal should be remitted to the First-tier Tribunal for a re-hearing.

7. Mr. Eaton did not oppose this course of action.

Decision
8. In paragraph 5 of his decision First-tier Tribunal Judge Andonian accepted that the Appellant had been born on 1 January 2000 and at paragraph 18 he said that he had been mindful of the Appellant's age when reaching his decision. But there was no indication from his findings of fact and credibility that this was the case. He had failed to take into account guidance relating to cases involving unaccompanied children claiming asylum. For example, the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status1 reminds us that there is no special provision in the 1951 Convention regarding the refugee status of persons under age. The same definition of a refugee applies to all individuals, regardless of their age. But at the same time the UNHCR Handbook reminds us that the question of whether a child qualifies for refugee status must be determined taking into account his or her stage of mental development and maturity. The UNHCR Handbook also states that where a child has not reached a sufficient degree of maturity to make it possible to establish a well-founded fear in the same way as for an adult, it may be necessary to have greater regard to certain objective factors.
9. In addition, in cases involving children the UNHCR's Guidelines on Child Asylum Claims recommends that "although the burden of proof is usually shared between the examiner and the applicant in adult claims, it may be necessary for an examiner to assume a greater burden of proof in children's claim, especially if the child concerned is unaccompanied". It also notes that "a child, by reason of his lack of knowledge, experience and maturity, cannot be expected to comply with procedures in the same way as an adult. Of course, a child may lie as well as tell the truth, but he may also find it more difficult to answer questions with the necessary understanding and insight2".
10. When considering the credibility of the Appellant's account First-tier Tribunal Judge Andonian also failed to consider it in the context of any objective evidence or relevant case law. Instead, he relied on assertions of plausibility which were not rooted in the facts or country information.
11. As noted by Ms Brocklesby-Weller, he also noted in paragraph12 of his decision that in his first age assessment, he had told social workers that both his parents were dead. I could not find such an assertion in the papers in the file.
12. In paragraph 19 he also relied on an assertion that the Appellant had been encountered by the Metropolitan Police working as a pizza delivery driver. However, the Appellant had denied that this was the case and there was no further evidence to confirm the encounter.
13. For all of these reasons I find that the decision contained material errors of law.

Decision

14. The Appellant's appeal is allowed.

15. The Appeal is remitted to the First-tier Tribunal to be heard de novo before a First-tier Tribunal Judge other than First-tier Tribunal Judge Andonian.

Date: 10 October 2016

Nadine Finch
Upper Tribunal Judge Finch