Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08228/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23rd March 2017
On 28 March 2017

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

AM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr I Palmer of Counsel
For the Respondent: Mr P Armstrong, Home Office Presenting Officer

DECISION AND REASONS
1. The Respondent (for the sake of convenience I refer to the parties as they were before the First-tier Tribunal) appeals against the decision of First-tier Tribunal Judge Foulkes-Jones promulgated on 19 February 2015, in which the Appellant’s appeal against the Respondent’s decision to refuse his asylum claim dated 1 October 2014 was dismissed.
2. The Appellant is a national of Afghanistan, born on 14 February 1996 who arrived in the United Kingdom in 2013 and claimed asylum. He attended a screening interview on 12 July 2013 and underwent a substantive asylum interview on 16 July 2014. The basis for the Appellant’s asylum claim was that he feared return to Afghanistan as a Shia Muslim and due to the risk of forced recruitment by Engener Lutfullah.
3. The Respondent refused the Appellant’s claim on the basis that although parts of his claim were accepted, that his house was destroyed during an airstrike and that he was a Shia Muslim; it was not accepted that the Appellant was actively practising his faith and or that the remainder of his claim was credible. In relation to his religion, the Respondent accepted that there was some discrimination against the Shia minority but not of such a level to amount to persecution. Overall, the Respondent considered that there was a sufficiency of protection for the Appellant and the option of internal relocation within Afghanistan. The Appellant’s claims for humanitarian protection and under Articles 2 and 3 of the European Convention on Human Rights were refused for the same reasons.
4. Judge Foulkes-Jones allowed the appeal on asylum and human rights grounds (Article 3) on 19 February 2015 having found the Appellant to have given a credible account of his claim and finding that he would be at risk on return to his home area due to his Shia identity and due to the risk of enforced recruitment by Engener Lutfuallah, that there is no sufficiency of protection for him and that it would be unduly harsh to internally relocate to Kabul.
5. The Respondent sought permission to appeal which was granted by Judge White on 9 March 2015. In a decision promulgated on 17 September 2015, Judge Monson, having found a material error of law in the original appeal decision, remade the decision and dismissed the Appellant’s appeal. That decision was then the subject of a successful appeal to the Court of Appeal; the matter being remitted to the Upper Tribunal by consent in an order sealed on 7 January 2017. The matter comes before me to re-determine the appeal made by the Respondent against the decision of Judge Foulkes-Jones.
The appeal
6. The Respondent appeals the decision of Judge Foulkes-Jones on the ground that the First-tier Tribunal failed to provide adequate reasons on the following four points:
(i) For departing from the Country Guidance case of AK (Article 15(c) Afghanistan CF [2012] UKUT 00163 in terms of sufficiency of protection and ability to internally relocate.
(ii) In relying on the cases of KA (Afghanistan) [2012] EWCA Civ 1014; JS (former unaccompanied child - durable solution) Afghanistan [2013] UKUT 00568, AA (unattended children) Afghanistan [2012] UKUT 00016, LQ (age – immutable characteristics) Afghanistan [2008] UKIAT 0005 and DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305 which are said to have no relevance to the Appellant as he is an adult and not a minor.
(iii) For the finding that the Appellant will have no pre-identified accommodation, sanitation or education and that it would be difficult for him to secure work; in circumstances where this finding is contrary to the findings in AK and does not take into account the assistance of NGOs and availability of assisted voluntary return packages.
(iv) For failing to consider the leading healthcare cases of N and GS & EO (Article 3 – healthcare cases) India [2012] UKUT 00397.
7. Permission to appeal was granted by Judge White on all grounds.
8. At the hearing, the Home Office Presenting Officer relied on the grounds of appeal as originally set out. He relied specifically on the findings in AK that the level of violence in Kabul and on routes to major cities was not such that it met the threshold in Article 15(c) of the Qualification Directive and in addition, that the Appellant would benefit from reintegration packages available which would place him in a better position than other internally displaced persons. Reliance was placed on the objective material set out in the reasons for refusal letter and a further article about the availability of mental health services in Kabul.
9. Counsel for the Appellant submitted that there was no merit in any of the grounds of appeal that were at best misconceived when AK and the decision under appeal were properly read. It was submitted that Judge Foulkes-Jones did not in fact depart from AK but made an individual assessment in relation to the Appellant in accordance with it; correctly referred to the cases on age given that the Appellant arrived as a minor and was only just an adult at the time of the hearing; made appropriate findings on the Appellant’s vulnerability and lack of support on return to Kabul and in any event the appeal was not allowed on health grounds such that N and GS was irrelevant.
Findings and reasons
10. The first ground of appeal relates to the application of AK to the present facts. That case remains country guidance in respect of levels of indiscriminate violence in Afghanistan and whether Kabul is a viable internal relocation option. In the present case, the First-tier Tribunal have already accepted that the Appellant is at risk in his home area and therefore the only issues challenged in this appeal are sufficiency of protection and internal relocation to Kabul. The findings in relation to Kabul are in paragraph 243 of KA as follows:
“As regards Kabul city, we have already discussed the situation in that city and we cannot see for the purposes of deciding either refugee eligibility or subsidiary protection eligibility (and we are only formally tasked with considering the latter) that conditions in that city make relocation there in general unreasonable, whether considered under Article 15(c) or under 15(b) and 15(a). We emphasise the words “in general” because it is plain from Article 8(2) and our domestic case law on internal relocation (see AH (Sudan) in particular) that in every case there needs to be an inquiry into the applicant’s individual circumstances and what those circumstances are will very often depend on the nature of specific findings made about the credibility of an appellant in respect of such matters as whether they have family ties in Kabul. But here our premise concerns an appellant with no specific risk characteristics and someone found to have an uncle in Kabul … To summarise our conclusion, whilst when assessing a claim in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and “reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city’s poor and also the many IDPs living there, these considerations will not in general make return to Kabul unsafe or unreasonable, although it will still always be necessary to examine an applicant’s individual circumstances.”
11. In the present appeal, Judge Foulkes-Jones sets out in paragraphs 10 to 13 background evidence and relevant country guidance authority, including AK and in paragraphs 14 to 20 goes on to make an individual assessment of the Appellant’s circumstances. Those findings include the Appellant’s diagnosis of and treatment for post-traumatic stress disorder, his lack of family support in Kabul nor any likelihood of genuine support from members of his ethnic group; lack of pre-identified accommodation, sanitation or education (which means the Appellant would be in a comparable situation to other urban IDPs affected by unemployment, limited access to adequate housing, limited access to water and sanitation and food insecurity) and poor availability of mental health services in Kabul.
12. It is clear from reading these paragraphs that Judge Foulkes-Jones has not departed from but has followed AK, taking into account the difficulties experienced by IDPs in Kabul and going on to examine the Appellant’s individual circumstances which make it unsafe and unreasonable for him to relocate to Kabul. It was not found for general reasons that relocation would not be reasonable but in combination with the Appellant’s particular circumstances which were markedly different from those in AK. As there is no departure from AK there is no error of law in a failure to give reasons on this point – the decision gave detailed and sustainable reasons for the finding that it would be unduly harsh for the Appellant to relocate to Kabul.
13. In relation to the second ground of appeal, there is no material error of law in the decision of Judge Foulkes-Jones. In paragraphs 12, 13 and 20 she sets out the case law relating to former unaccompanied minors and those who are young adults which reiterate that there is no bright line at the age of 18 across which the risk to and needs of a child suddenly disappear. Judge Foulkes-Jones recognises in paragraph 12 that the Appellant was 18 years old and expressly considers him as an adult in her decision. The reference to the case law set out in full in paragraph 6(ii) above was clearly explained in the decision as being relevant to the Appellant as a person who had arrived in the United Kingdom and claimed asylum as a minor but who had recently turned 18 years old and would be returning to Afghanistan unaccompanied by any family.
14. In the third ground of appeal, the Respondent does not make any challenge to the factual finding that the Appellant would not have any access to pre-identified (my emphasis) accommodation, sanitation or education; which is on the facts is correct – there is no suggestion of anything pre-identified or arranged for his return, nor any family support to assist him. The Respondent appeals on the basis that the Judge has not given adequate reasons for this, does not take into account the NGO and AVR packages available is therefore contrary to AK. The Home Office Presenting Officer did not point to any passages in AK to the contrary and for the reasons already set out above, the decision followed and was in accordance with AK by considering general conditions and the Appellant’s specific circumstances. Although there is no specific reference to NGO support or AVR packages, this is not a material error of law given Judge Foulkes-Jones findings of the Appellant’s specific vulnerabilities on return to Kabul (his lack of family support and poor mental health with only limited treatment available for it) combined with the general difficulties of unemployment, housing, sanitation and food insecurity in Kabul.
15. The final ground of appeal is entirely misconceived as the appeal was allowed on asylum and associated Article 3 grounds, not on health grounds. N and GS would only have been relevant if the asylum appeal failed and the Appellant was reliant on Article 3 to claim that his removal would be a breach of this on the basis of his mental health. That was not however the basis for the appeal or decision and therefore there is no error of law in failing to consider caselaw specific to an issue which did not arise on the facts.

Notice of Decision

The making of the decision of the First-tier Tribunal did not involve the making of a material error of law. As such it is not necessary to set aside the decision.

The decision to allow the appeal is therefore confirmed.

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 their 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 24th March 2017

Upper Tribunal Judge Jackson