Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/09824/2014
AA/09219/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 June 2016
On 5 December 2016

Before

upper tribunal judge conway

Between

MATEEN FAROOQY
RAMEEN FAROOQY
(ANONYMITY DIRECTION NOT MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Ms Hooper
For the Respondent: Mr Kandola

DECISION AND REASONS
1. The Appellants are citizens of Afghanistan. They are siblings born in 1985 and 1986 respectively. They appeal against decisions to refuse to vary leave and to remove under Section 47 of the Immigration, Asylum and Nationality Act 2006.
2. They claimed asylum in 2009 when they were minors. The basis of their claim was that if returned to Afghanistan they would be harmed by the family members of their father's first wife owing to difficulties between their father and his former in-laws which occurred before their birth.
3. Their applications were refused in May 2010. They were granted discretionary leave as unaccompanied minors. An appeal against refusal of asylum was dismissed by Judge of the First-tier Jones following a hearing in August 2010.
4. In July 2012 before the expiry of their leave an application for further leave to remain was made. They repeated their claim that removal would breach the Refugee Convention. The application was refused on 23 October 2014.
5. Following a hearing on 9 December 2014 at Taylor House Judge of the First-tier Meah dismissed the appeals on asylum, humanitarian protection and human rights grounds. He noted that the first tribunal had found the Appellants to be 'wholly incredible' in their historical accounts. Applying Devaseelan [2003] Imm AR 1 and noting that there was no new evidence as to the history he saw no reason to go behind the first tribunal's findings.
6. He went on to note a 'new expert report ? drafted by the same expert who provided a similar report for the 2010 appeals. There is in fact nothing new in the report which essentially states that which the previous determination noted and dealt with. I therefore do not find that this report is capable of taking the Appellants' claim for asylum and international protection further' [14].
7. Going on to consider risk on return the FTTJ found that the Appellants are now adults 'two very savvy young men' who had created a 'very strong bond between them' [15] and are 'better educated and skilled young adults' who would be able to cope and adjust back to life in Afghanistan on return.
8. The FTTJ did not believe the claim that the Appellants had lost contact with their parents. He found that 'It is likely that the parents will be able to receive the adult Appellants now upon their return so it is unlikely that they would have to fend for themselves in any event and this further diminishes any risk they may claim to face on return to Afghanistan' [17].
9. In going on to consider Article 8 the FTTJ found that any family life with other members in the UK did not go beyond normal emotional ties. Whilst they may have established a private life, as 'adaptable individuals' who had benefited from education in the UK, they could readapt to life in Afghanistan from where they could keep in touch with friends in the UK. Removal would not be disproportionate.
10. They sought permission to appeal which was refused but granted on reapplication to the Upper Tribunal on 11 May 2015.

Error of law hearing
11. The principal ground argued before me at the error of law hearing on 16 September 2015 was that the FTTJ erred in law by failing to consider whether the Appellants were entitled to humanitarian protection under Article 15(c) of the Qualification Directive.
12. I concluded as follows:
'In this context evidence had been before the FTTJ that postdated the country guidance case of AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 in the form of an expert report from Dr Giustozzi dated 28 November 2014 which indicated that there was an increased level of violence in Afghanistan.
Much country background material on Afghanistan was before the FTTJ. He referred to none of it in his assessment of risk on return for these two Appellants. Further, there were two reports by Dr Giustozzi. The first was dated 5 August 2010 and had been before the first tribunal. A second report dated 28 November 2014 was before FTTJ Meah. The gist, as indicated, of the material and reports was that the current level of violence in Afghanistan had increased over the last year and the likelihood of it continuing to do so. Also, that violence disproportionately affected children and young adults whether or not they had family to reside with.
The FTTJ failed to refer to and analyse any of the up-to-date country material. Indeed, he failed even to mention the country guidance. The only reference (at [14] of the determination noted above), where he refers to Dr Giustozzi's second report as "similar" to his first, four years before, and added "nothing new" was inadequate. There are differences between the reports, not least in the latter which indeed states that levels of violence have increased.
In failing to take into account and analyse all relevant evidence before him, in this case background evidence of country conditions and the further export report, the judge failed adequately to consider risk on return and the issue of humanitarian protection, and thereby materially erred.'
13. I went on:
'The second ground was that the FTTJ's analysis under Article 8 was inadequate because it gave inadequate consideration to conditions which the Appellants might face on return.
I refused permission on that ground because the error of law identified by the failure to take account of the additional material in the country reports, second expert report and country guidance goes to the consideration of humanitarian protection and Article 8. Therefore on this point the claims stand or fall together.'
'I set aside the decision to be reheard in the Upper Tribunal by myself. The issue is risk on return. The findings on the historical accounts stand.'
Resumed hearing
14. Following two occasions when the resumed hearing had to be adjourned, and giving permission for the grounds to be amended to allow consideration of paragraph 276ADE, the case came before me on 7 June 2016.
15. For the hearing I had before me the Appellants' original bundle, a supplementary bundle, a bundle in relation to internal relocation. Further, I had additional bundles (27 May 2016), and 6 June 2016 the latter containing up-to-date statements by the Appellants. I also had before me the Respondent's Country Information and Guidance Afghanistan: Security and humanitarian situation (August 2015) and skeleton arguments.
16. I heard brief oral evidence from the Appellants, first, Mateen. He adopted his last statement. He accepted that he had not told the truth before the First-tier Tribunal. He was sorry he had lied. He had said what he had been told to say by the agent. Such included that their parents' whereabouts were unknown and contact had been lost. In fact he and his brother had been in contact with them by phone. They had gone to Pakistan and are now in Turkey where, he thought, they had been for about a year. He thought if he had told the truth they would have been sent back to their parents even if they were in Pakistan.
17. He added that he is no longer a practising Muslim.
18. In cross-examination he agreed that his father has two brothers in the UK. They, too, know the parents are in Turkey. They had not attended the hearing and there was no evidence from Turkey in support. He said that he was now telling the truth.
19. In response to questions from myself he said he knew his parents were out of Afghanistan about six years ago. The first time they spoke after the parents' exit was two or three years ago. He did not know that if he had said to the British authorities that they were not in Afghanistan such might have helped them. They had said what they had been told to say by the agent.
20. I then heard from Rameen. He adopted his statement.
21. In cross-examination he, too, had said what the agent had told him to say. They had been scared to tell the truth. He is in contact with his parents by phone and less often by Skype. He does not know where in Turkey they are. He has not asked them.
22. In submissions Mr Kandola sought to rely on the refusal letter. Referring me to several extracts from AK he said there was no reason to depart from it. Even although the casualty rate had increased since that case such was not enough to alter the conclusion set out in AK. The indication was that the risk was less in Kabul. Also, return and reintegration packages were made available to all.
23. Mr Kandola urged me not to believe the evidence about the parents. There was no good reason to believe the Appellants now in light of their previous dishonesty. The appropriate finding is that they are in Afghanistan and it would be to them that they would return. There would be stable accommodation and a network of support.
24. As for the expert reports they were all premised on there being no family there.
25. Mr Kandola asked me not to believe Mateen's claim to no longer be a practising Muslim. This was the first time it had been raised. As for the claim that they might be at risk because they had become westernised there was no reason why they could not re-assimilate into Afghani society.
26. In conclusion Mr Kandola submitted that whilst it was accepted that since AK there had been an increase in violence it had not reached the level necessary to satisfy Article 15(c). Nor could the case succeed under paragraph 276ADE(1)(vi). They have been in the UK a relatively short time, both speak Dari, and have their family there. There was no need to look at Article 8 outside the Rules. Even if that was considered the public interest in removal was weighty.
27. In reply Ms Hooper reminded me that when they arrived the Appellants were minors. Whilst their dishonesty had been regrettable it was understandable. They had been under orders and did not want to be sent back to a war zone. She asked me to accept their current evidence that their parents are not in Afghanistan. She added that it was clear that the family had money in order to pay for the plane ticket and false documents. They had also lived close to the US Embassy and as such in an area of targeted attack. Anyone with money would likely have left.
28. Ms Hooper, referring me to extracts from the most recent background bundle and her skeleton submitted that those suffering in Afghanistan were a not insignificant number. Death is an everyday matter. Of relevance in considering Article 15(c) was not only the number of those suffering but also the criminality arising from conflict, particularly in respect of returnees who would be regarded as western and to have money. Such would be an added problem for Mateen whose evidence, that he was no longer a practising Muslim, should be believed. If it was untrue his brother would have said the same.
29. Ms Hooper emphasised that year on year since AK the situation for civilians had got worse.
30. Ms Hooper continued by submitting that if the case was not to come within Article 15(c) the circumstances were nonetheless relevant to paragraph 276ADE(1)(vi). The Appellants would be returning in effect to an IDP situation. There was no guarantee that their accommodation in Kabul would still be empty. There is an accommodation crisis. The parents may have sold their property to pay for their own exit. There would also be difficulties in finding work.
31. In that regard they have been away so long they will have lost the social network that might have helped in getting work. There is little available work anyway. Also, they are not from a robust, manual background. All in all it would be difficult for them to integrate. Looking at the circumstances cumulatively the Appellants satisfied paragraph 276ADE(1)(vi).
32. Finally, in respect of Article 8 ECHR the Appellants' circumstances amounted to an exceptional case. They had arrived as children, were fully integrated into UK society, their length of residence here was considerable. There had also been considerable delay by the Respondent in deciding the application. In light of these factors removal would be disproportionate.
Consideration
33. The first issue to be considered is whether removal would be contrary to Article 15(c) of the Qualification Directive which is transposed as paragraph 339C of the Immigration Rules.
'A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that ?
(iii) substantial grounds have been shown for believing that the person concerned, if he is returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country ?
Serious harm consists of: ?
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.'
34. In considering the elements a 'real risk' determines the standard of proof. Exceptional situations are possible where the degree of indiscriminate violence is of such a high level that an individual would face a real risk solely on account of his presence (Elgafaji Case C-465/07). 'Serious harm' characterises the nature and intensity of interference with a person's right; the harm in Article 15(c) is a more general risk of harm than in 15(a) and 15(b).
35. 'Internal armed conflict' occurs when the State's armed forces confront one or more armed groups or two or more armed groups confront each other (Diakite (Case C-285/12) CJEU (Fourth Chamber)).
36. A broad interpretation is required for 'indiscriminate violence'. In Elgafaji it was found that violence may extend to people irrespective of their personal circumstances. An exceptional situation is needed for Article 15(c) to apply to civilians generally. Typical forms of indiscriminate violence may include: massive targeted bombings, guerrilla attacks, collateral damage in direct or random attacks. There must be a causal nexus between the violence and the threat to life or person. Being a 'civilian' is a necessary prerequisite.
37. As for 'serious and individual threat' (per Elgafaji), that an applicant may be specifically affected is not a necessary requirement of Article 15(c). As for general risk an extreme degree of violence must be shown. The more an applicant is specifically affected, the lower the level of violence required.
38. Before considering the background situation in Afghanistan I find the facts of this particular case. I noted these contemporaneously with the hearing.
39. As indicated the Appellants' historical accounts of fear of persecution were found to be untrue. It was also found by the previous tribunal that they had not been truthful in saying that they had lost contact with their parents. Rather 'it is likely that the parents will be able to receive the adult Appellants now upon their return ?'.
40. As further indicated the Appellants admitted before me that they had been untruthful on that matter before the previous tribunal. The truth, they claimed, was that for a short time after arrival in the UK they had been in contact with their parents in Afghanistan by phone. Soon, however, they lost contact believing it to be because they had left Afghanistan. They knew that they were out of Afghanistan about six years ago and spoke to them for the first time thereafter two or three years ago. They are currently in Turkey.
41. I did not believe a word of it. Their explanation appeared to be that they were told by the agent not to say where their parents were as they would be sent back to Afghanistan. Such makes no sense. Had they said at the time of application or subsequently that they were in Pakistan or India or Turkey such would potentially have helped them by indicating that their parents were not in Afghanistan to receive them.
42. I find it significant also that there was no documentary evidence before me, evidence which one would reasonably have thought would have been available, to support the claim of the parents' residence in Turkey or elsewhere out of Afghanistan.
43. Further, the Appellants' father has two brothers in the UK. I was told that they knew of the parents being in Turkey. The brothers, also, are in contact with them. I found it surprising and significant that there was no oral evidence from the brothers or even witness statements. Again, one would have thought such would have been easily obtainable. There was no explanation why it was not.
44. The Appellants have a history of deception. I find that the Appellants having been untruthful to the Respondent and at the previous tribunals have continued to be untruthful. They do not satisfy me that their parents are no longer in Afghanistan. I also do not believe the evidence raised, for the first time before me, that Mateen is no longer a practising Muslim.
45. The situation is thus as follows. The Appellants are now young men aged 21 and 20 years respectively. They are from Kabul where their parents remain. They are as the previous tribunal found 'savvy young men'. They are in good health.
46. I now consider the background situation in Afghanistan.
47. The starting point is the country guidance case of AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 in which the Tribunal held that whilst 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 living there, these considerations will not in general make return to Kabul unsafe or unreasonable.
48. The Appellants' position is that the security situation in Afghanistan has significantly got worse since 2012 such that the country guidance is no longer applicable. Death, Ms Hooper commented, is an everyday matter. More people are leaving now than before.
49. I look first at the expert reports. Dr Giustozzi's second report is dated 28 November 2014. He notes (at [17]) that 'after a decline in violence in 2011-12, 2013 witnessed new peaks of violence. During 2012 overall levels of violence have declined in Afghanistan, due to the start of the withdrawal of foreign troops. However, Afghan-on-Afghan violence has actually increased ?'
50. That paragraph apart there is little in the report to assist not least because Dr Giustozzi's comments are premised on the Appellants' original assertions that their historical accounts are true, that they would be at risk from family of their father's former wife and from the families of the kidnappers as well, all of which has been found to be untrue. It also proceeds on the assertion that they have no family there.
51. The more recent report is by Mr Tim Foxley MBE (25 November 2015). It too proceeds on the basis (at [31]) that the Appellants do not have contact with their Afghanistan-based family before adding that 'Generally, it seems that the availability of immediate family, particularly those in a stable environment, secure accommodation and with regular income, is helpful in cushioning the impact of being returned to Afghanistan'.
52. Elsewhere, Mr Foxley says rather more than Dr Giustozzi about the security situation. Mr Foxley also notes a worsening in the security situation (at [20]). He states that Kabul is assessed as being within a Taliban attack zone. Also, that over the whole country the situation remained 'volatile' noting that 'in 2014 there were 22,051 recorded incidents, which surpassed those of 2013 by 10 percent ? In 2014 the number of civilians killed and injured in the conflict in Afghanistan topped 10,000 for the first time since the UN began systematically documenting civilian casualties in 2009. Nearly three quarters of all civilian casualties continue to be attributed to the Taliban affiliated groups'.
53. Mr Foxley goes on at [24] to criticise the Home Office's assertion that Kabul is relatively safe from a security perspective. He states that the city and province saw the 'third highest level of international military casualties' and 'is the scene of regular terrorist attacks, usually involving suicide bombers. Being able to penetrate and attack into the heart of the city is an essential part of the media war, more or less guaranteeing headlines for the Taliban'.
54. However, he continues 'the city is more benign generally than much of Afghanistan. The Afghan security forces in Kabul have now at least had some experience in dealing with complex security incidents. For people with the profile of your clients, I generally take the view that insurgent or terrorist groups would be unlikely to be aware of or have any interest in, them were they to be returned to Kabul. They would be "small fry" in the national capital, of little consequence and not someone that, for example, the Taliban, would be inclined to expend resources on to pursue'.
55. Further, at [27] 'Although violent when they do take place, Taliban attacks into Kabul are not frequent. It would be mainly bad luck that would place them in the firing line'.
56. It is appropriate to observe that 'bad luck' does not get the Appellants into the threshold of Article 15(c).
57. Much of the rest of Mr Foxley's report deals with issues other than violence. He notes that there is 'no dependable solid safety net. They will likely have little cash or other resources to support their initial arrival in the city' [27].
58. I find such to be of very limited assistance to the Appellants because it has been found that they have family and resources on the ground.
59. As for the comment that having been away for some years they 'may now stand out - unwittingly - as Westernised young persons' and as such being viewed by some with suspicion and at risk of criminality, again they would have the support of their family and there seems no reason why they could not re-assimilate into Afghani society as they assimilated into British society.
60. At [37] and [46] Mr Foxley makes comment on the risk of exploitation be it criminal, narcotic or sexual for 'young and vulnerable men without regular employment or reliable accommodation'. Once more I do not find this to assist the Appellants as they will have family support and accommodation.
61. I look at other material. Mr Kandola sought to rely on the Country Information and Guidance: Afghanistan: Security & humanitarian situation (August 2015).
62. It notes (at 2.5.4) AK which found in Kabul the 'great majority [of attacks] have concentrated on areas where the government or international organisations have their offices or where their employees frequent' [226]. However, the Tribunal went on with regard to Kabul city to find that '? given the fact that this has a reported population of around 5 million and that Kabul province does not feature in any list of the most violence provinces, the argument for any engagement of the Article 15(c) threshold, if based primarily on civilian deaths, is even weaker' [than Kandahar and Helmand, the provinces with the highest number of civilian deaths, and Ghazni, a province with a significant rise in violent incidents] [219].
63. Ms Hooper was correct to submit that the security situation has got worse since the promulgation of AK in 2012 and indeed it was not disputed by Mr Kandola.
64. The COI Report (at 2.5.6) notes that since then, according to UNAMA, 'the number of civilian deaths and injuries has increased ? Whilst injuries to civilians steadily increased between 2010 and 2014, the number of deaths fluctuated, increasing in 2011 compared to 2010, then reducing in 2012 and 2013 before rising again in 2014 to 10,548 civilian casualties (3,699 deaths and 6,849 injured) the highest number of civilian deaths and injuries in a single year since recording began in 2009'.
65. The report goes on (at 2.5.7): 'Analysts and media sources noted a significant escalation in violence in Kabul during the latter months of 2014, and a surge of terrorist attacks in Kabul in mid-May 2015'.
66. In that regard, in the section 'Nature and levels of violence' in respect of Kabul the report notes (at 4.4.1) the Institute for the Study of War stating 'Analysts and media sources alike have noted a significant escalation in Kabul during the latter months of 2014. Insurgent violence in Kabul increased in July 2014 and maintained a consistent level of intensity through March 2015. In these attacks, militants focused on targeting Afghan government and Western interests, including foreign military and diplomatic personnel, Afghan security forces, and Western NGOs ? at least 77 attacks occurred in Kabul in 2014, compared to the 29 attacks recorded in 2013'.
67. Further, (at 4.4.2) 'A surge of terrorist attacks in Kabul in mid-May saw at least 26 deaths and over 80 injuries'. On a day in May an assault on a hotel killed 14 people; an explosion at Kabul University several days later injured two. In other incidents that month, in the city three people were killed and 20 wounded. A suicide bomb attack near Kabul airport killed three people and injured at least 18 others. On 19 May a car bomb exploded next to the Ministry of Justice building killing five and wounding at least 43 others [4.4.2].
68. I conclude that the most up-to-date information put before me clearly supports Ms Hooper's contention that the security situation has deteriorated since AK was promulgated in 2012.
69. In QD (Iraq) and AH (Iraq) v SSHD [2009] EWCA Civ 620 Sedley LJ '? it is not every armed conflict or violent situation which will attract the protection of Article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety'. When Article 15(c) speaks of a threat to a civilian's life or person it is concerned not with fear alone but with a possibility that may become a reality, such that 'risk' in Article 2(e) overlaps with 'threat' in Article 15(c), so that the latter reiterates but does not qualify or dilute the former. Article 15(c) is concerned with 'serious threats of real harm'. Although there is no requirement that the armed conflict itself need be exceptional there does need to be an intensity of indiscriminate violence 'great enough to meet the test set out by the ECJ'.
70. Having accepted that the evidence clearly shows a deterioration in the security situation in Afghanistan in recent years I nonetheless note and find of considerable weight (at 2.5.8) of the COI Report '.. the proportion of civilians directly affected by violence remains low. The CIA World Factbook estimated the population at 31,822,848 (July 2014). Taking the number of civilians killed and injured in 2014, 0.03% of the population were directly affected by violence during this time'.
71. I note also the Judicial Review decision of July 2015 in the case of Naziri & Others, R (on the application of) v SSHD (JR - scope - evidence) (IJR) [2015] UKUT 437 (IAC). It was argued that having regard to a substantial body of evidence which had materialised since 2012, it was appropriate to reconsider the guidance promulgated in AK. However the Upper Tribunal found that 'within the limitations of a judicial review challenge and the hearing which has taken place we find no warrant for departing from the current country guidance promulgated in AK. In particular, we find that the evidence falls short of satisfying the stringent Article 15(c) test'[95].
72. In seeking to assess the background evidence in light of the Appellants' circumstances I conclude that despite the deterioration and difficulties faced by many of those living in Kabul, wherever in the city the family house is, they are not at real risk of serious harm by reason of indiscriminate violence in a situation of internal armed conflict.
73. The appeals fail under Article 15(c).
74. Paragraph 276ADE(1)(vi) was also raised: 'very significant obstacles to reintegration'.
75. Clearly conditions in Kabul for much of the populace are far from ideal. However, I do not accept the submission that the Appellants would effectively be returning as IDPs. As indicated they do not satisfy me that their parents are not there to receive them. Nor that there would no longer be accommodation for them. It seems clear that the family finances were such that they were able to fund the journey to the UK. I see no reason why the family would not be able to continue to do so while the Appellants sought work.
76. Both speak Dari as well as English. Whilst they have both been here for some years and from teenage years it cannot be argued that they are alienated from their culture. As indicated they successfully integrated in British society. I see no reason why they should not be able to reintegrate into Afghani society particularly in light of the family support and with the education and skills got from their time here.
77. The appeals do not succeed under paragraph 276ADE(1)(vi).
78. I see there to be nothing exceptional or compelling over and above these circumstances and conclude that consideration under Article 8 is otiose.
79. However, in any event in relation to any claim under Article 8 outside the Rules it was not suggested that the Appellants have a family life other than with each other. They would be removed together. Therefore they are limited to a claim in respect of private life.
80. It may well be that as the submissions put it that they have 'an extended supportive family network' in the UK. I find that having been in the UK for some six years they will have built up a social network and ties here. They have studied and both now are in work. I find they have clearly established a private life. Removal would interfere with that private life.
81. In considering proportionality and the balancing exercise, in their favour they have been in the UK for some six years part of that time as children; any delay in considering their application has given weight to their private lives; on the other hand, the majority of their lives has been spent in their home country, they have their family to return to in Afghanistan and to help them to adjust to the conditions there. In addition they have education and skills, language and otherwise to assist them. I note, further, from the Country Information and Guidance that 'all individuals who are returned to Afghanistan by the UK are offered support in re-establishing their lives?' (2.4.5). As the previous tribunal found and I endorse, they have shown themselves to be 'adaptable individuals' and 'two very savy young men'. Their private life has been established at a time when their immigration status was precarious (s117B (5)). Public interest in maintaining effective immigration control is weighty. I do not see that the circumstances in the Appellants' cases outweigh the public interest in the maintenance of effective immigration controls.
Notice of Decision

The decision of the First-tier Tribunal showed material error of law. That decision is set aside and remade as follows:

The appeals are dismissed on humanitarian protection grounds.

The appeals are dismissed under the Immigration Rules.

The appeals are dismissed under Article 8 ECHR.

No anonymity direction made.

Signed Date

Upper Tribunal Judge Conway 5 December 2016