The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07905/2012


Heard at Field House
Determination Promulgated
On 12 November 2013
On 4 December 2013




(Anonymity Direction Made)



For the Appellant: Mr R Jesurum of counsel instructed by Lawrence Lupin solicitors
For the Respondent: Mr P Nath a Senior Home Office Presenting Officer


1. The appellant is a citizen of Afghanistan who was born on 1 January 1994. He has been given permission to appeal the determination of First-Tier Tribunal Judge O'Garro ("the FTTJ") who dismissed his appeal against the respondent's decision of 9 August 2012 to refuse to vary his leave to enter the UK.

2. The appellant entered the UK illegally. He claimed asylum on 27 March 2008. He claimed to fear persecution from the authorities in Afghanistan because of his father's involvement with the Taliban. He also feared the Taliban because they would forcibly recruit him.

3. The appellant's application was refused on 15 September 2008 with a right of appeal. However, he did not appeal. On 28 September 2008, because he was not yet an adult and there were no adequate reception facilities if he was to return to Afghanistan, he was granted discretionary leave. On 22 June 2011 the appellant applied for further leave which led to the decision under appeal. The appellant then appealed and his appeal was heard by a First-Tier Tribunal Judge who allowed his appeal. The respondent applied for and was granted permission to appeal to the Upper Tribunal. The Upper Tribunal found that the First-Tier Tribunal Judge had erred in law and set aside the decision directing that the appeal be reheard in the First-Tier Tribunal. It was in these circumstances that the appeal came before the FTTJ on 6 August 2003.

4. At that hearing both parties were represented, the appellant by Mr Jesurum, who appears before me. The FTTJ heard evidence from the appellant through an interpreter. Whilst the respondent had not found the appellant's claims to be credible the FTTJ accepted core elements of the appellant's claim. She accepted that his father fought with the Taliban and that the Taliban may have attempted to recruit him. The latter finding is addressed in the grounds of appeal and there is a challenge as to whether it is sufficiently clear. The FTTJ, whilst accepting that the appellant left Afghanistan because of his fear that he would be harmed by the Taliban, said that she needed to consider whether he would be at risk on return to Afghanistan at the date of the hearing. She found that, whilst he left Afghanistan because of his fear that he would be harmed by the Taliban, it was not likely that there would now be attempts to force him to join the Taliban. He would not be at risk from the authorities because of his father's involvement with the Taliban. His fears were subjective and if he was returned to Afghanistan these would subside as would his anxiety and panic attacks. He had not been disadvantaged because the respondent had not tried to trace his family. If he was to return there would be a reasonable likelihood that through the word-of-mouth networks available in Afghanistan he would be able to reunite with some members of his extended family.

5. The FTTJ found that the appellant did not have a well founded fear of persecution, was not entitled to humanitarian protection and that his human rights would not be infringed if he was returned. She dismissed the appeal.

6. The appellant applied for and was granted permission to appeal by a judge in the First-Tier Tribunal. The five grounds of appeal submit that the FTTJ erred in law. Firstly, by stating that there was no objective evidence to support the expert evidence from Dr Giustozzi that being a family member of a Taliban insurgent would lead to detention by the authorities. Secondly, by failing to apply the principles in Rashid, R (on the application of) v Secretary of State for the Home Department [2005] EWCA Civ 744 because, if the appellant was at risk of forced recruitment and entitled to international protection in 2008 this was powerfully relevant to fairness and proportionality if he was now denied the protection to which he was then entitled. Thirdly, the respondent's failure to attempt to trace the appellant's family and the FTTJ's conclusion that this had not prejudiced the appellant ignored key evidence and the four years that had been lost. Fourthly, that she lacked the necessary medical expertise and it was not open to the FTTJ to conclude that the appellant's subjective fear and panic attacks would diminish on his return to Afghanistan. Fifthly, that the FTTJ failed properly to analyse the Article 8 grounds in the light of the Strasbourg jurisprudence regardless of the position under the Immigration Rules.

7. Mr Jesurum informed me that those representing the appellant had obtained a supplementary report from Dr Giustozzi and the psychiatric report from Dr Paul Foster. Neither of these was before the FTTJ and he accepted that they were not relevant to the question of whether the FTTJ erred in law. If her decision was set aside there would be an application to admit this evidence. There is no new material before me apart from the cases of KA (Afghanistan) v SSHD [2012] EWCA Civ 1014 , EU (Afghanistan) v SSHD [2013] EWCA Civ 32 and MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013).

8. Mr Jesurum relied on the grounds of appeal, submitting that no part of the appellant's claim had been rejected although some findings were unclear and other necessary findings were absent. The finding in paragraph 41 as to whether there had been attempts by the Taliban to recruit the appellant was unclear. Whilst the appellant did not dispute the conclusion that he was no longer at risk of forced recruitment by the Taliban, the question was relevant to whether he was at risk when he arrived in this country and therefore, following Rashid principles, whether it would be unfair not take this into account when making a decision now.

9. Mr Jesurum submitted that the expert report from Dr Giustozzi showed that there was an informal network mechanism in Afghanistan that would result in his being identified as the son of a Taliban fighter. The Afghan police arrested people on an arbitrary rather than a rational basis. In reply to my question, Mr Jesurum accepted that there was no explicit statement in the background material that the police arrested people to bring pressure to bear on their relatives. The FTTJ's finding in paragraph 43 that the appellant would be of no interest to the authorities on return to Afghanistan was overly optimistic and not a rational finding in the light of the evidence.

10. As to the respondent's duty to try and trace the appellant's relatives in Afghanistan, Mr Jesurum submitted that even if the appellant made efforts to trace them with the assistance of social services and through the Red Cross and the Red Crescent, the delays he encountered might not have been encountered by the respondent if she had made enquiries as soon as the appellant made himself known in this country.

11. There was no medical report before the FTTJ but a letter from the NHS backed up by the social services report. The NHS letter did not say that the opinions were based on what the appellant had said. The FTTJ was not qualified to make any psychiatric diagnosis.

12. In relation to the Article 8 grounds Mr Jesurum submitted that the authorities relied on and referred to in the determination had been overtaken by the judgement of the Court of Appeal in MF (Nigeria). This provided guidance although, unlike this case, it was a deportation appeal. In reply to my question, Mr Jesurum accepted that the grounds of appeal did not set out what factors were relevant to consideration of the Article 8 grounds outside the new Immigration Rules and how these might have led the FTTJ to a different conclusion. His submissions did not fill this gap in the grounds except for the argument that they might have been relevant to the application of Rashid principles.

13. Mr Nath asked for and I gave him an adjournment to read the documents which were not in his file. He had the first appeal decision but not the one now under appeal. After the adjournment he said that he was ready to proceed. He relied on the refusal letter of 9 August 2012. The appellant accepted that he would not now be at risk of forced recruitment at the hands of the Taliban. Taking paragraphs 41 and 46 together it was sufficiently clear that the FTTJ had found that the Taliban had attempted to recruit the appellant. This left the question of whether he would be at risk because of his father's involvement with the Taliban. There was nothing in Dr Giustozzi's report to show that family members of those involved with the Taliban were at risk.

14. The appellant's evidence was that he started to try and trace his family in 2008 and social services became involved in 2009. The Red Cross were persuaded to try and assist in 2012 and had not been able to find the appellant's uncle or other members of the family. Any suggestion that the respondent might have been able to do better was speculative. There was no evidence to support this. The letter from the NHS was not a proper medical report and the FTTJ reached conclusions on the appellant's condition which were open to her.

15. In relation to the Article 8 human rights grounds, Mr Nath submitted that the earlier authorities had been overtaken by MF (Nigeria). It was not always necessary to carry out a second stage assessment of the Article 8 grounds outside the current Immigration Rules. The appellant had not shown that even if this had been done it would have made any difference. I was asked to uphold the determination.

16. In his reply Mr Jesurum submitted that the primary risk on return for the appellant was his father's involvement with the Taliban. He highlighted the relevant paragraphs in Dr Guistozzi's report. Nothing absolved the respondent from her failure to attempt to trace the appellant's family. In relation to the medical evidence the FTTJ said that the appellant's condition was due to his immigration status whereas the NHS letter said only that this was a factor. In relation to the Article 8 grounds Mr Jesurum emphasised that this was not a removal case.

17. I reserved my determination.

18. In the first ground of appeal it is argued that the FTTJ erred when she said that there was no objective evidence to support Dr Guistozzi's conclusion that being a family member of a Taliban insurgent would lead to detention. The grounds are unhelpful in that they do not identify the passages in the COIR report which is said to be replete with evidence of arbitrary detention and widespread use of torture. In any event, even if the statement is correct, it does not link arbitrary detention and torture to a child's father's involvement with the Taliban. Paragraph 16 of Dr Guistozzi's report relating to the practice of arresting relatives in order to force fugitives to hand themselves over or prisoners to confess does not assist the appellant where his father is dead and there is no indication that the authorities are still looking for him. In his submissions Mr Jesurum referred to further passages in paragraph 6 of Dr Guistozzi's report. This part of his opinion assumes that the authorities would be aware or become aware that the appellant's father fought for the Taliban and that as a result he would be "highly suspect". But this does not address the question of what "useful information" the appellant might have as he was a child when he left Afghanistan and has been out of the country since 2008. I find that the reasons given by the FTTJ in paragraph 43 pay sufficient regard to Dr Guistozzi's opinions. These opinions do not support a conclusion that the appellant is likely to be arrested as a consequence of his father's involvement with the Taliban either because of particular interest in him or as part of a more general roundup.

19. As to the second ground of appeal, whilst I accept that the passage in paragraph 41 which reads; "it cannot be ruled out that the Taliban may have attempted to recruit the appellant as he claims" is not on its own as clear a finding as would be desirable I find that another passage in the determination and the tenor of the FTTJ's reasoning indicate that she did accept to the low asylum standard that the Taliban attempted to recruit the appellant. The clearest passage which leads me to this conclusion is in paragraph 46 where the FTTJ says; "although I am prepared to accept that the appellant left Afghanistan because of his fear that he would be harmed by the Taliban".

20. I find that the application of Rashid principles relied on in the third ground of appeal does not lead to the conclusion that the appellant would have been entitled to international protection when he arrived in this country in early 2008, that fairness and proportionality require that this be taken into account now or that it was conspicuously unfair to deny him now what he should have been given then. The question of whether he was entitled to international protection in 2008 must have been addressed at the time because he claimed asylum which was refused on 15 September 2008 and , although he had a right of appeal, he did not appeal. That would have been the best time to address whether he was at risk because of the Taliban's attempt to recruit him. The assessment would have to have been made in the light of the country evidence and perhaps expert evidence of the position at that time. Attempted recruitment two or three months before the appellant left Afghanistan does not on its own mean that he was entitled to international protection. The grounds did not argue that the Secretary of State did not follow any relevant policy at that time.

21. As to tracing in the third ground of appeal, the FTTJ concluded that the fact that the respondent did not attempt to trace the appellant's relatives in Afghanistan had not resulted in any disadvantage (paragraph 52). I find that even if the appellant did provide contact details on arrival and the respondent made no attempt to trace, the argument that the respondent might have succeeded where the appellant, social services, the Red Cross and the Red Crescent failed is no more than speculation. There is no evidence that the respondent has available to her channels which were not explored at the appellant's behest or that if she had attempted to trace in early 2008 she would have had any success as opposed to the lack of success experienced by the appellant and social services largely because the Red Cross did not make enquiries until 2012.

22. In relation to the fourth ground of appeal, internal relocation and panic attacks the appellant relies on a letter from the Central the North West London NHS Foundation Trust dated 25 August 2011 which addresses a referral of the appellant by his social worker after he complained of "episodes of breathlessness, tightness of chest and dizziness followed by palpitation and fear that he's going to die". When he was taken to hospital he was told that everything was normal. The appellant said that he had "general anxiety about his life including immigration status but he did not think that it is related to the panic attacks". The author of the letter, a "Speciality Doctor in Child and Adolescent Psychiatry" concluded that he was suffering from classic symptoms of panic disorder. No medication was required. Crucially, the appellant himself did not think that his panic attacks were related to his immigration status and neither he nor the doctor said anything about what might happen to his mental or physical health if he had to return to Afghanistan. I can find nothing in this letter to support the statement in paragraph 56 that the appellant's condition "is due to his uncertain immigration status and his subjective fear of what he might encounter if he is returned to Afghanistan". However, this is an error without consequence because the letter contained no conclusion or opinion as to the effect on the appellant of having to return to Afghanistan. As to the criticism that the FTTJ erred in describing the letter as a medical report I find that this was no error. Whilst it is in the form of a letter it reads as a medical report and was given by a doctor apparently qualified to express an opinion.

23. As to the fifth and last ground of appeal, the FTTJ properly considered the Article 8 grounds under the Immigration Rules. As to whether she should have gone on to consider the grounds under jurisprudence outside the Immigration Rules she said that she was not satisfied that it was necessary to do so because "the Immigration Rules and the learning on Article 8 are in harmony. I find that the appellant's circumstances raise no exceptional factors." MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (08 October 2013) was not available when the FTTJ heard the appeal and her determination was promulgated but both representatives accept that it is now the relevant law encapsulating earlier jurisprudence to which the FTTJ was referred. Whilst MF (Nigeria) was a deportation case the principles are relevant to this appeal. The Court of Appeal referred to "exceptional circumstances". The FTTJ referred to "exceptional factors". I can see no material difference. Furthermore, whilst paragraph 14 of the appellant's grounds refers to factors which I have already addressed and concluded do not amount to errors of law, there is nothing in the grounds or in submissions to indicate that any second stage test outside the Immigration Rules could or should have led the FTTJ to a different conclusion.

24. The FTTJ made an anonymity direction which should continue in force. I make an order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the appellant.

25. I find that the FTTJ did not err in law and I uphold her determination.

Signed Date 13 November 2013
Upper Tribunal Judge Moulden