Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08494/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 July 2016
On 05 August 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

G A
(aNONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr E Fripp, Solicitors

DECISION AND REASONS
1. The application for permission to appeal was made by the Secretary of State but nonetheless I shall refer to the parties as they were described before the First-tier Tribunal that is Mr Atsakzai as the appellant and the Secretary of State as the respondent.
2. The appellant was born on [ ] 1996 and entered the United Kingdom illegally on 19 September 2011 and claimed asylum. His application for asylum and humanitarian protection under the European Convention was refused by the Secretary of State and his appeal came before Judge of the First-tier Tribunal Judge S Taylor on 5 January 2012, who found that the appellant, although a minor, was able to give detailed and cogent answers in his asylum interview and was able to understand the nature of the proceedings and give appropriate responses. Nevertheless Judge Taylor proceeded to find that the inconsistencies in his account set out in the Secretary of State's refusal letter, were such that at the age of 15 the appellant's claim was not credible. The judge referred to the guidance of UNHCR on dealing with claims made by minors but, nonetheless relied on and adopted the inconsistencies set out by the Secretary of State referring to those as being "fully listed in the reasons for refusal letter." She highlighted the main area of inconsistency which was that the appellant gave three different accounts of when his problems began with the Taliban. She further found that the appellant gave "the implausible evidence that the Taliban were attempting to find him to recruit him for a period of up to three years but were unable to do so." Judge Taylor recorded that "the appellant gave inconsistent answers on the frequency of the Taliban visits after his father's death," and found that it was not credible that the Taliban never came at night or at a time that it was likely that the appellant would be home (paragraph 14). She also found it unbelievable that the appellant would disobey the instructions of his uncle or that he would be left alone having been kidnapped by the Taliban such that he could escape.
3. His appeal was therefore dismissed but the appellant was granted discretionary leave in the UK until 14 March 2014 on the basis he was an unaccompanied asylum seeking child.
4. He applied for further leave to remain in the UK on 13 March 2014 that being refused on 23 September 2014 and a decision was made to remove him under Section 47 of the Immigration, Asylum and Nationality Act 2006. The appellant appealed on refugee and human rights grounds.
5. The matter came before Judge of the First-tier Tribunal Judge Flynn on 19 June 2015 and his claim was allowed on 29 July 2015. That decision was subject to a challenge by the Secretary of State and the matter was returned to the First-tier Tribunal and heard before First-tier Tribunal Judge Callender who also allowed the appeal. His decision was the subject of further challenge. An application for permission to appeal was first refused by Upper Tribunal Judge Deans but then permission was granted by UT Judge Macleman. I address the grounds of the Secretary of State in turn.
6. Ground (i) it was asserted that the judge failed to provide adequate reasons on a material point. In essence that the judge circumvented the previous findings of Judge Taylor by relying on the evidence of the new witness, Mr Ajab Khan and on the basis that the Tribunal did not reconcile the previous finding of fact.
7. I find there is little substance in this ground. The judge made clear at paragraphs 54 to 57 that he had taken note of the previous decision with reference to Devaseelan and reflected that the original decision was his starting point but accepted that the evidence of Mr Khan was clear, cogent and credible and had assisted him in arriving at a differing conclusion in relation to credibility of the appellant. He noted the closeness of the Afghan diaspora in the UK generally. It is clear that this witness substantially altered the approach to the appellant's case. As the Secretary of State notes it was correct that Mr Khan was not a witness at the previous hearing. The judge explained the reasons for him accepting his evidence albeit that the appellant had met him in London. The challenge to the claim in respect of the death of the father, on the basis that it was not clear who was killed in May or June in relation to the appellant's family, is a disagreement with the findings of the judge who clearly found that the appellant was young when he arrived in the UK and his account had remained consistent [61]. The grounds themselves rely on an ambiguity in relation to whether the evidence regarding family included the father. That cannot be read into the recorded evidence to undermine the claim.
8. Although it is advanced by the Secretary of State that the record by the judge of the appellant's account remaining consistent was completely at odds with the previous determination, the core of the appellant's claim was that he was targeted and of interest to the Taliban. That did remain consistent.
9. As an aside, the Secretary of State advances that Judge Taylor considered the appellant's age when assessing credibility, but the evidence found on the one hand to be cogent and yet places emphasis on the discrepant nature of the evidence. That is not, however, relied upon by the First-tier Tribunal Judge. Judge Callender did deal with the core of the claim in the light of the new witness's evidence.
10. The second ground of challenge was in relation to the bombing by NATO forces of Afghanistan. At [58] and [59 the judge accepted that the appellant's family was killed in a NATO bombing raid on the basis that that was the evidence from the witness and that witness would not run the risk, if the Secretary of State undertook research, to be proved a liar at court. It was asserted that the judge's conclusions in relation to the witness saying something that was fundamentally incorrect was inadequately reasoned, if not illogical.
11. I find that although it is not for the Secretary of State to show that the incident did not occur and for the appellant to show that it did the evidence nonetheless from the witness whom the judge found to be credible was that there was a bombing raid. Bearing in mind the contextual background of Afghanistan, it is not an illogical or surprising that the judge accepted the account of Mr Khan or that the village was bombed. The judge had clearly read the background evidence which identified the extent of the war and the nature of violence in Afghanistan, not least Dr Schuster's report - she referred to the 2014 Mid-year report on Protection of Civilians in Armed Conflict, and 'the deaths and injuries caused by mortars, rocket propelled grenades and small arms fire in ground engagements jumped dramatically as the frequency and intensity of these incidents increased in 2014'.
12. Although the judge's reasoning to support the credibility findings was brief the judge gave reasoned findings and to a significant extent the grounds amount to little more than a disagreement with the findings made. The judge was entitled on the evidence to find that the appellant's family was killed in the manner alleged.
13. The real challenge was made in relation to the finding with regard relocation and undue harshness. As the grounds advance, the findings in this respect are found at [60] to [64] and are in part premised on the basis that the appellant has no family and the appellant has escaped the Taliban. The judge accepted that the appellant had indeed escaped from the Taliban. The Secretary of State advances that there was no suggestion that the appellant would be incapable of looking after himself and he may be able to rely on a returns package explored at paragraph 224 of AK Article 15(c) Afghanistan CG and the assistance of Mr Khan who it is said had visited Afghanistan recently. These were not, it was asserted, considerations which the judge addressed.
14. It was submitted by Mr Tufan that the judge had not cited AK Article 15(c) Afghanistan [2012] UKUT and this was an obvious defect. I note this was not something which was specifically identified in the grounds for refusal and although the judge has not cited AK it is quite clear that, when assessing the individual circumstances of the appellant he concluded that he was still young, and the judge placed reliance on the report of Dr Schuster. Paragraph 63 of her report which in fact is dated 2015, clearly identifies the deteriorating situation in Afghanistan.
15. Although not cited, I am not persuaded the judge failed to consider the findings in AK (Article 15(c)) Afghanistan [2012] UKUT 163 (IAC). In particular the head note of AK states as follows
(iv) Whilst when assessing a claim in the context of Article 15(c) 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 Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.
16. AK at paragraph 243 confirms that the individual circumstances of an appellant must be considered and Judge Callender clearly found that the appellant was young, had lived in the UK since he was a minor and had no family in Afghanistan and considered the circumstances of the individual appellant and on this basis allowed the appeal. As stated in AK
243. (As regards Kabul city, we have already discussed the situation in that city and we cannot see that for the purposes of deciding either refugee eligibility or subsidiary protection eligibility (and we are only formally tasked with deciding the latter) that conditions in that city make relocation there in general unreasonable, whether considered under Article 15(c) or under 15(b) or 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: see above paras 3,5,154, 186 and below, paras 250-254). 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.
17. Although not directly on point as the appellant is now over the age of 18, AA (unattended children Afghanistan CG [2012] UKUT 00016, makes the point that unattached children returned to Afghanistan depending on their particular circumstances and the location to which retuned, may be at risk of serious harm from for example indiscriminate violence forced recruitment and sexual violence. I note that the judge does not cite AA either despite finding there was no bright line with respect to age. Dr Schuster's report also identifies the remaining risk to returned asylum seekers, particularly the young, from the Taliban and the risks that they are identified as having lived in the west. Dr Schuster identifies the very severe difficulties including unemployment but more particularly the judge notes, at paragraph 60, that an 18th birthday is no bright line and dangers such as forced recruitment by the Taliban or sexual exploitation of vulnerable young males do not disappear because the returnee is over 18. It is incumbent upon the judge to take into account all the circumstances of the case and which the judge saw fit to do in the case of this particular appellant. The judge also notes that the appellant was "young when he arrived in the UK originally." As Mr Fripp pointed out in his submissions the appellant in AK was disbelieved and from the assessment of Judge Callender that was not the case here.
18. The judge clearly found that the appellant was at risk in his home town and that he would be at risk substantially because of his age on return to Afghanistan. Dr Schuster records the rise in the number of attacks with civilian casualties in Afghanistan particularly in Kabul and the inability of the forces to protect themselves let alone ordinary citizens. She also, at paragraph 75 of her report, states that thousands of people are internally displaced within Afghanistan each month and that Kabul's population had exploded from 500,000 to 5,000,000 in the space of ten years. She referred to the increase in those displaced into IDB camps and those unable to return to their original homes and a significant number of those have settled around Kabul. She states "the basic infrastructure including sanitation, education and health have not kept pace. There are daily power cuts the water is contaminated" and she adds "unless they have access to support networks (71) they will find it difficult, perhaps impossible, to find livelihood opportunities." She also added that employment in Kabul was scarce. Of particular importance was the scale of internal displacement in the area of prospective relocation.
19. She added finally at paragraph 76
"Of further concern is that those returned after spending years in Europe, in particular formative teenage years would stand out .. if they do not have family or friends in Kabul they will not have the necessary guidance and advice on where to go and how to behave. This is as true in Kabul as in the provinces."
20. The judge effectively concluded that he was satisfied that the appellant was without family members in Afghanistan and would in essence be unable to navigate successfully any process of return to Kabul.
21. There is no doubt that Judge Callender took into account and relied on the report of Dr Schuster and in the particular circumstances of this Appellant, who was ultimately found to be credible, and the lack of his uncle whom the judge found likely no longer alive (there was evidence in the bundle in the appellant's name that the Red Cross had been approached by the appellant to elicit tracing information) the judge has given adequate reasoning for his findings that the appeal should be allowed.
22. There is no material error in the decision of the First-tier Tribunal Judge and it shall stand.

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

Upper Tribunal Judge Rimington