Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09419/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 16th February 2017
On 1st March 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

a.a.
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Reynolds, Counsel
For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan (born 28th June 1994). He has appealed with permission against a decision of Judge of the First-tier Tribunal Graves, promulgated on 30th November 2016 dismissing his appeal against a decision of the Respondent to refuse him asylum.
Background
2. The Appellant arrived in the UK in May 2011 aged just short of 16 years (age assessed as 17 years). He had travelled through Iran, Turkey, Greece where he was stopped but did not claim asylum, Italy and France. He was stopped again in France but did not claim asylum there either.
3. When the Appellant arrived in the UK he gave his date of birth as 28th June 1995. His age assessment by Slough Social Services resulted in the Respondent accepting the Appellant as a minor but determining his year of birth as 1994. He claimed asylum, but his claim was refused on 1st August 2011. However he was granted discretionary leave valid to December 2011.
4. The Appellant gave an account of coming from Logar Province in Afghanistan and said he lived there with his parents, brothers and sisters. He said that an older sister had been killed in an explosion.
5. He said his family lived in a house owned by neighbours. They looked after the house and were paid cash for so doing. He said he had never attended school but had attended classes at the local mosque.
6. The reason given by the Appellant for leaving Afghanistan was as follows. Towards the end of 2010, the Taliban had appeared in the local mosque. The Appellant was not present at the time but his father was. His father came home and informed the Appellant that the Taliban had said that the local men must produce their sons to become suicide bombers, or to go and fight as jihadists. The Taliban had threatened that if the families refused this request, their sons would be killed anyway.
7. The Appellant’s account went on to say that two days later his father told him he was approached again, this time outside the mosque. His father was told that if he did not volunteer his son, he would be killed anyway. Immediate arrangements were made therefore for him to flee the country and within twelve to fourteen hours of that second approach he left his home around about 2 am the following morning.
8. When the Appellant arrived in the United Kingdom, he attended a screening interview on 26th May 2011. He submitted a witness statement and Statement of Evidence Form in June 2011. On 15th July 2011 he attended a substantive interview accompanied by an appropriate adult.
9. On 1st August 2011 the Respondent refused the Appellant’s asylum claim. Essentially his account of why he had left Afghanistan was disbelieved, although in view of his age, she did grant a period of discretionary leave to remain until 22nd December 2011.
10. On 23rd December 2011 the Appellant applied for further leave to remain, once more raising asylum and human rights grounds. He submitted a second witness statement dated 15th December 2011. On 17th June 2015 the Respondent once again refused the Appellant’s claim, relying largely upon the original refusal letter dated 1st August 2011.
11. The Appellant’s appeal against the Respondent’s decision was heard originally before FtT Judge Mays. His appeal was dismissed in a decision promulgated on 12th January 2016. The Appellant applied for permission to appeal that decision and on 22nd April 2016 Judge Mays’ decision was set aside by Upper Tribunal Judge Coker. One of the grounds as to why Judge Mays’ decision was set aside revolved around Judge Mays’ refusal to grant an adjournment to allow the Appellant to commission an expert’s report. The Appellant wished to draw upon an expert’s report to deal with the question of risk on return to Logar province and whether internal relocation was a viable option. Suffice to say at this stage UTJ Coker remitted the matter to the First-tier Tribunal for a fresh hearing and decision.
First-tier hearing
12. The appeal therefore came before First-tier Tribunal Judge Graves in Hatton Cross Her decision was promulgated on 30th November 2016.
13. Judge Graves heard oral evidence from the Appellant and took into account background evidence including an expert’s report by Mr Tim Foxley MBE, whose expertise and credentials were accepted by both the judge and the Respondent.
14. The judge’s findings begin at [30]. She found a number of significant inconsistencies in the various accounts given by the Appellant, of why he left Afghanistan. Those inconsistencies led the judge to the conclusion that the Appellant’s evidence of why he left home was not credible.
15. The judge went on to give examples of these inconsistencies in the ensuing paragraphs and set out in detail in [35] the matters she did not find credible.
16. The judge also found the Appellant was evasive when giving his oral evidence. Questions were put to him repeatedly in cross-examination and the judge concluded that the Appellant’s difficulty in understanding appeared only to be related to questions that identified issues in his claims [39].
17. The judge also found the appellant was inconsistent in evidence concerning tracing attempts of his immediate family. It was always the Appellant’s case that he had left Afghanistan with the help of uncles who lived in Kabul, but the judge found that the Appellant was now trying to distance himself from those relatives and that this also detracted from his credibility [47]. The judge found therefore that she comprehensively disbelieved the Appellant’s account. She found accordingly that there was no risk of return to the Appellant in his home area and, in the alternative if she was wrong about that, then the Appellant could relocate safely to Kabul. She therefore dismissed the appeal.
Onward Appeal
18. The Appellant sought to appeal that decision to the Upper Tribunal. The grounds seeking permission, were set out under three headings:
failure to make clear findings as to whether the Appellant was at risk in his home area;
failure to adequately address the expert and background evidence when assessing credibility; and
failure to take into account expert evidence when assessing the issue of relocation.
19. Permission to appeal was granted by the First-tier Tribunal on the second and third grounds only. The First-tier grant of permission rejected Ground 1 saying that when the decision was read as a whole, the judge made sufficiently clear findings that the Appellant would not be at risk on return to his home area.
20. The Appellant renewed his application for permission to appeal on Ground 1 to the Upper Tribunal. Permission was accordingly granted by UTJ Coker in the following terms:
“1. Permission to appeal to the Upper Tribunal has already been granted by the First-tier Tribunal with regard to claimed failure by the First-tier Tribunal judge to have adequate regard to expert evidence in relation to children and internal relocation.
2. For some reason the judge failed to grant permission with regard to the ground asserting the judge failed to give adequate or clear findings in relation to the applicant’s risk of being persecuted in his home area. Obviously if an applicant is not at risk of being persecuted in his home area, then the issue of internal relocation does not arise.
3. Permission is granted on the ground that it is arguable the First-tier Tribunal judge failed to give adequate or clear reasons for his findings that the applicant was not at risk in his home area.”
Therefore the matter comes before me to decide initially, whether the decision of the First-tier Tribunal promulgated on 30th November 2016, contains a material error of law, requiring it to be set aside and the decision remade.
Error of Law Hearing
21. Before me Mr Reynolds appeared for the Appellant and Ms Isherwood for the Secretary of State. A possible concern was raised at the start of the hearing. Ms Isherwood’s Rule 24 response was served prior to the grant of permission given by UTJ Coker. However having been given a copy of UTJ Coker’s grant of permission relating to Ground 1, Ms Isherwood indicated she was able to proceed with submissions.
22. Mr Reynolds’ submission in substance relied on the grounds seeking permission. He did start his submissions by referring firstly to Ground 2 which is under the heading of errors in credibility assessment.
23. He submitted that the judge had fallen into two errors in her credibility assessment as follows:
The judge concluded that the Appellant’s story was incredible before she considered the evidence in the expert report, contrary to the principle of Virjoin B [2002] EWHC 1469 (Admin). He amplified this saying it was a key part of the Appellant’s case that his account was consistent with the expert and background evidence concerning the methods of recruitment employed by the Taliban. Further, since the Appellant was a child at the relevant time, he could not reasonably be expected to know or understand events to the level of an adult or educated person. This would account for inconsistencies in his evidence on this matter.
Secondly it was said, the judge had failed to give adequate reasons for rejecting parts of the expert’s evidence.
24. Mr Reynolds’ second submission was contained under the heading unclear findings on risk in home area.
25. The central thrust of this submission was that the judge’s analysis of risk to the Appellant in his home area is unclear and consequently it is not possible to discern from the text when read as a whole, whether the judge accepts to the lower standard of proof that the Appellant is at risk on return to the home area.
26. Mr Reynolds’ third submission came under the heading internal relocation. As I understood it, the only issue so far as internal relocation to Kabul is concerned, was whether internal relocation would be unreasonable or unduly harsh in this Appellant’s particular circumstances. It is not part of the Appellant’s case that he was at risk from the Taliban or insurgency groups in Kabul.
27. Mr Reynolds amplified this ground saying that the judge did not properly consider the “reasonableness” of this particular Appellant internally relocating to Kabul. There was no specific consideration given by the judge to the problems which may exist in Kabul for reintegration of returnees who are uneducated males without support systems in place. In concluding that the Appellant had an internal relocation alternative, the judge limited her analysis to Article 15(c) risk and failed to consider the expert evidence which includes even those individuals with family support in Kabul.
28. Therefore piecing all these challenges together, the judge had materially erred and the decision should be set aside for rehearing.
29. Ms Isherwood responded with a Rule 24 response which she amplified. The thrust of her submissions was to the effect that the judge’s decision was a lengthy and detailed analysis of the evidence before her. She agreed there was no dispute about the expert’s credentials. She took issue with the claim that the judge had made findings on the Appellant’s credibility in advance of considering the expert’s report. In making her submissions on this issue, she referred extensively to parts of the expert’s report and pointed out that the expert himself had said that he was in difficulty in reaching conclusions because of the limited information which the Appellant had given (paras 37, 38 & 40)
30. She further submitted that the judge had directed herself appropriately concerning the Appellant’s age. The judge had set out [24] that she was aware of the reasons why the hearing before her was a remitted hearing. She has set out in [25] and [30] a detailed analysis reminding herself of the Appellant’s age. It was clear that the judge had considered the expert’s report in context and had made proper findings that the Appellant’s evidence was not credible. The decision overall was well reasoned and sustainable. There was no error. The appellant’s challenges were a disagreement with the judge’s fact finding.
Consideration
31. I will now deal with each of the challenges raised by Mr Reynolds in turn and in the same order in which they were presented to me.
32. I will deal first with the issues raised around the Appellant’s credibility. I begin by reminding myself that, when analysing a decision which contains adverse credibility findings which are the subject of challenge, it is important to remember that the judge saw and heard evidence from the Appellant, which I have not. A judge is only required to give sufficient reasons properly to explain her decision, which in this appeal resulted in finding the Appellant not credible. Whilst the judge’s reasons have to demonstrate a correct understanding and appreciation of the totality of the evidence, it is not necessary for judges to record each and every piece of evidence in order to give adequate reasons. As will be seen, my overall conclusion in this appeal is that despite Mr Reynolds’ submissions to the contrary, while some of the judge’s reasons are stronger than others, having heard from the Appellant and looked at the evidence in the round which I find she clearly did, then she was entitled to come to the conclusions she reached regarding the Appellant’s credibility.
33. I should add here that I find the judge correctly identified the young age and vulnerability of the Appellant when he first arrived and was first interviewed. She correctly said that in cases involving minors, great caution has to be exercised before drawing inferences from omissions or discrepancies in the SEF or interview. The judge in this appeal was evidently aware of the Appellant’s age at the time of the interviews because, as Ms Isherwood pointed out, she has taken the precaution of setting this out [30].
34. The main challenge from Mr Reynolds on this ground is that the judge failed to take a holistic approach to the evidence and specifically failed to take the expert’s opinions into account before reaching her conclusions on credibility. I find I disagree with this point. The hearing before Judge Graves was the second time that this Appellant’s appeal was heard. The first hearing was set aside for various matters, one of which was the failure of Judge Mays to grant an adjournment for the commission of an expert’s report.
35. In the present matter, the judge indicated that she had had regard to all the documents and evidence before her, whether or not specific reference was made in the decision [22]. In addition the judge indicated quite properly that she had not read the original FtT decision but, equally properly, had read UTJ Coker’s decision setting aside the original decision. Judge Coker’s decision quite clearly sets out that an expert’s report was required, going to the issues of risk in Logar and internal relocation. The judge’s direction at [22] and [24] indicate to me that the judge has not simply sidelined the expert’s report. In any event Mr Foxley’s report amounted to saying that the Appellant’s account of the Taliban seeking to forcibly recruit him was plausible. If one looks at [50] it is clear that the judge has taken account of this but says that credibility is a matter for the Tribunal. I find therefore no persuasive evidence to show that the judge has made her credibility findings in advance of considering the expert’s report.
36. The judge found significant inconsistencies in the Appellant’s account and after properly directing herself that the Appellant was a minor when interviewed nevertheless arrived at conclusions that the Appellant’s account of his history was not credible.
37. As I said earlier in this decision it must be kept in mind that the judge was the person who heard the Appellant give his evidence, and by the time he was giving his evidence he was 22 years of age. Even so the judge found the Appellant to be evasive and questions had to be repeated with contentious issues not answered directly. I find therefore that the challenge on the judge’s assessment of credibility is not made out.
38. In the second challenge raised to the judge’s decision, it is said that the judge made unclear findings about the risk to the Appellant in his home area. This is on the basis that the Appellant would be at risk of harm from the Taliban by reason of his absence from Afghanistan and as a young uneducated male who may be viewed as pro-Western on account of his absence from the area. In support of this claim, the Appellant adduced expert evidence from Mr Foxley who found that the Appellant might once again be considered a viable target for the Taliban or other insurgent groups.
39. What the judge had before her were various reports and source material including an EASO Report referring to sources dating back to 2015 to the effect that Logar Province is one of the most volatile in the region. There was also the Respondent’s country report which was more recent and dated July 2016 and that did not list Logar province as one under Taliban control. The judge noted that the country report relied in part on the UN Secretary General’s report of March 2016 which the judge considered to be a recent, reliable and independent source. That too, did not list Logar province as being one of the most volatile regions. It also described recent improvements in control and presence by the Afghan Army and police in all regions and relied on a US Department of Defense report which again the judge found to be a recent and independent source.
40. When looking at those sources together with the report from Mr Foxley, the judge finds that Mr Foxley describes Logar Province as a Taliban attack and support zone. Mr Foxley’s report goes on to identify general risks in the province but does comment that, “with so little information it is not possible to judge the Appellant’s actual relationship with the Taliban.” However Mr Foxley does not rule out a risk of general recruitment or reprisal if the Appellant is to be seen as associated with the west.
41. I find that at [54-56] the judge looked at those reports and made findings accepting what was set out in the most recent documentation before her. Those findings were open to her to make and led her to the conclusion that, when read in conjunction with the Appellant’s lack of credibility, it was not likely that the Appellant would be targeted if returned to his home province.
42. I accept that [57] appears unclear and it is hard to see quite what it is the judge was driving at. She appears to be weighing those areas of divergence in the various reports before her concerning the region, and considering the fluidity of the situation on the ground. This leads her into speculation about what may be the outcome if a specific threat to the Appellant from the Taliban did emerge in the future. However this lack of clarity does not fatally undermine the findings made by the judge as a whole, and set down in [51] [52] [56].
43. In any event this leads me on to the third challenge raised by Mr Reynolds and which is set out under the heading of internal relocation. The challenge to the judge’s decision on this ground centres upon a claim that the judge failed to apply the reasonableness test to internal relocation to Kabul. I find little merit in this ground.
44. The judge finds at [58] that the Appellant is now an adult who has received some education in the UK; but more importantly finds that the Appellant would not be without some support as he has relatives in Kabul, who would be in a position to assist him.
45. The reasons given by the judge are certainly adequate to sustain her finding that the Appellant has relatives in Kabul who have helped in the past. The judge has quite properly looked at the evidence concerning this point. She noted that the Appellant was reticent by trying to distance himself from any relatives in Afghanistan. She noted the Appellant’s evidence that he had lost contact with his immediate family but found that the Appellant gave inconsistent evidence concerning his attempts to trace family members [28]. This led the judge to infer that the Appellant still had uncles in Kabul who would be in a position to help.
46. The judge noted that the Appellant had received some education in the UK, that he was a healthy 22-year-old male who spoke Pashtu and who had uncles in Kabul who had helped in the past. The judge’s findings that internal relocation to Kabul would not be unreasonable nor unduly harsh are adequate and therefore sustainable.
47. I find therefore for the foregoing reasons that looking at the decision as a whole the findings made by the judge are ones which were open to her on the evidence. Therefore the decision is not vitiated by material error. The decision of the First-tier Tribunal is upheld and this appeal is dismissed.

Notice of Decision

The Judge of the First-tier Tribunal did not make a material error of law and her decision dismissing the appeal on asylum and humanitarian protection grounds 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 his 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 C E Roberts Date 28 February 2017

Deputy Upper Tribunal Judge Roberts