Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08854/2014

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 21 February 2017
On 30 March 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

mr Nasratullah Popalzai
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Bedford, Counsel, instructed by Sultan Lloyd
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Afghanistan aged 20. He has permission to challenge the decision of First-tier Tribunal Judge (FtT) Parkes sent on 25 July 2016 dismissing his protection appeal. The appellant arrived in the UK in April 2010 aged 14. The judge accepted that the appellant’s father was kidnapped by the Taliban and that there was a subsequent raid on the family house in which the appellant’s brother and sister were killed and he was injured.
2. The grounds contend that the judge erred in: wrongly discounting the evidence contained in the UNHCR Eligibility Guidelines 2013 that Ourzgan (the appellant’s home province) is one of the most highly contested provinces in Afghanistan (it is stated that evidence of risk in a 2013 report from UNHCR must carry weight unless it is rebutted by more recent evidence); failing to have regard to the UNHCR Eligibility Guidelines 2016 which show that the security situation across Afghanistan has deteriorated as a whole since 2013: in placing reliance on the country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00016 as opposed to the more recent UNHCR Report of 2013; failing to rely on the country guidance regarding the reasonableness of relocation to Kabul contained in PM and Ors [2007] UKAIT 00089 and RQ [2008] UKAIT 00013; failing to determine notwithstanding that the appellant was not baptised, whether he was of Christian faith and whether he would be forced to conceal that on return through fear of persecution; and failing to determine whether there would be significant obstacles to the appellant’s integration on return to Afghanistan in accordance with pre-276ADE(vi).
3. I am grateful to both representatives for their clear and concise submissions.
4. I am not persuaded that any of the appellant’s grounds are made out.
5. As regards the 2013 UNHCR Eligibility Guidelines, the judge expressly took those into account (see e.g. paragraph 22) and was quite entitled to conclude, taking them together with other evidence, that they did not establish that for the appellant there would be a real risk, as opposed to a mere possibility, of forced recruitment in his home province of Ourzgan. In assessing risk in the appellant’s home province, the judge did not specify it precisely but found at paragraph 35 that the evidence of civilian deaths in the south of the country was not significantly higher in 2013 or 2014 than in 2010, 2011 and the judge further observed that there was no evidence that the appellant’s home village would be at risk of an attack by insurgents who at that time targeted mainly Afghan security forces.
6. As regards the 2016 UNHCR Guidelines, it is first of all clear that they were placed before the judge. Whilst it is true that the judge nowhere refers expressly to them, it is equally true that this was in large part because the appellant’s submissions focused on the 2013 report. If the 2016 report had established that the security situation in Afghanistan was significantly different from that demonstrated in recent evidence which the judge took into account, then I would have needed little persuasion to find this omission a material error. However, the background country evidence before the judge, including the 2016 UNHCR Report, fell well short of establishing that the security situation had worsened such that it could be said that persons were at risk of serious harm or ill-treatment merely by being civilians, nor did it establish that forced recruitment by the Taliban was a real risk. In paragraph 31 the judge stated:
“As to the risk in the appellant’s home area, Mrs Bahia relied on the general lack of security in Afghanistan and submitted that no part of the country was safe. She relied on a report of 9 July 2014 by the United Nations Assistance Mission in Afghanistan (UNAMA) on the protection of civilians in armed conflict. She relied in particular on a table giving details of civilian deaths and injuries between 2009 and 2014, found at page B65. It is significant that at the foot of that page is the following statement:
“The majority of ground engagements causing civilian casualties were from anti-government elements carrying out attacks against Afghan security forces located in the vicinity of civilian-populated areas. The majority of Taliban attacks appeared targeted at Afghan security forces.”
7. To the extent that the point underlying the appellant’s grounds relating to the UNHCR Guidelines (the need for up-to-date evidence) is also made in relation to the judge’s reliance on the country guidance case of AK, it is clear from paragraph 25 that the judge did not treat that case, decided in 2012, as determinative of the current situation. The judge referred to “the evidence the appellant has provided” as not being “enough to justify departing from” that guidance, that assessment was entirely open to the judge on the evidence. I do not discern any error in the judge failing to specifically refer to the much earlier country guidance cases in PM and RQ as the judge had a more recent and more pertinent country guidance case before him (HK and Others (minors, indiscriminate violence, forced recruitment by the Taliban, contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) and much more recent evidence before him relating to the key issues in the appellant’s case, including as regards forced recruitment.
8. Mr Bedford submits that the judge failed to deal adequately with the issue of internal relocation in Kabul. The difficulty with that submission is firstly that the judge did not find that the appellant would face a real risk of harm in his home area. In any event, given the fact that the appellant was now an adult and had gained an education and taken advantage of a number of courses, the judge was entitled to conclude that relocation to Kabul would not be unduly harsh. The background evidence before the judge did not compel a different answer.
9. I find no merit whatsoever in the contention that the judge failed to determine whether the appellant was of the Christian faith: the judge’s determination devotes considerable space to recording the evidence he heard in this matter (see paragraphs 13-17) and at paragraphs 28 the judge concluded:
“28. There was no challenge to Mrs Woollaston’s evidence that the appellant was “drawn to” Christianity. There was however no oral evidence from a church leader or minister. In these circumstances I am not satisfied that the appellant has proved on the evidence that he has converted to Christianity; nor has he proved that he would feel compelled by his faith to go beyond private observance of religion and attend meetings or services (if such took place) or to speak to others about his faith.”
10. From the judge’s determination t is entirely clear that he found not only that the appellant had not been baptised but that he had failed to show he had converted to Christianity or has left Islam. The grounds offer no reason to consider these findings of fact were erroneous in law.
11. As regards paragraph 276ADE(vi) FtT Judge Juss noted at paragraph 30 that the findings previously made by FtT Judge Pooler on 29 April 2015 in respect of Article 8 were expressly preserved by the Upper Tribunal and that he could depart from them only if there was evidence to justify doing so. It was plainly open to the judge to find that there was insufficient evidence to justify doing so.
12. Whilst Judge Juss does not mention paragraph 276ADE, that provision was also addressed by Judge Pooler in paragraph 41-43 and his conclusion was that the appellant had failed to show that there would be very significant obstacles to his (re)integration into Afghanistan. In assessing the appellant’s case outside the Rules Judge Pooler relied on very much the same considerations as he did in concluding that the appellant would not face very significant obstacles to integration. Thus, although Judge Juss did not directly address paragraph 276ADE, his finding as regards the appellant’s failure to show that he could succeed outside the Rules, being largely based on the same factual matrix relied on by Judge Pooler, cannot be faulted for legal error.
13. Having found that the appellant’s grounds of appeal are not made out, I conclude that the decision of FtT Judge Juss to dismiss the appellant’s appeal must stand.
No anonymity direction is made.

Signed Date: 30 March 2017

Dr H H Storey
Judge of the Upper Tribunal