Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA100462015

At Field House

Decision and Reasons Promulgated

on 6th June 2016
on 20th June 2016

Before
DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY
Between

MA
(ANONYMITY DIRECTION MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

Representation:
For the Appellant: Ms H.Foot, Hammersmith and Fulham Community Law Centre.
For the Respondent: Mr Duffy, Home Office Presenting Officer.
DECISION AND REASONS
Introduction

1. The appellant is a national of Afghanistan said to be born in or around January 1997. He arrived in United Kingdom at the age of 13 and a claim for asylum was made. That claim was refused. On the basis he was an unaccompanied minor he was granted discretionary leave to remain until he became an adult.

2. The appellant's claim was that his father was a member of the Taliban who had been taken away by the police. The appellant and his mother made enquiries from the police as to his whereabouts but to no avail .He was repeatedly interrogated by the police. He subsequently learned that his father had been killed. The Taliban came to the appellant's home looking for him. They were annoyed that he had given the names of two commanders to the police. Letters were thrown over the wall of his home telling him he should join the Taliban. Fearful for his safety because of the Taliban and the police his mother arranged for him to leave the country.

3. An appeal against the refusal was heard by Designated Immigration Judge Manuell in 2011 and was dismissed. The judge did not find the claim credible and found the appellant to be an unreliable witness.

The First Tier.

4. A further application was refused on the 3rd June 2015. On appeal, in a decision promulgated on 9 December 2015, Judge of the First-tier Tribunal Bowes allowed the appeal under paragraph 276 ADE of the immigration rules.

5. At the appeal evidence was heard from a Mr. W A. He said he was from the same village as the appellant and they met in the United Kingdom. His evidence was that his father and the appellant's father were Taliban members and that he had heard in the Madrassa the appellant's father had been killed. The judge was supplied with the decision in Mr. W A' s asylum claim where he was found credible. Judge Bowes also found Mr. W A to be credible.

6. There was also evidence from the appellant's solicitor to the effect she had managed to speak on the telephone with the son of the Malik of his village, Mr. Z U. She said he told her the appellant's father had been killed and that he was a member of the Taliban and the appellant's mother and siblings were no longer in the village and their whereabouts were unknown. He was to provide a letter confirming the details.

7. The appellant's foster parent, Mr. R gave evidence suggesting he had destroyed a document which had arrived not appreciating its significance.

8. The tribunal also heard evidence from the appellant's school about how well he was doing and from a clinical psychologist about difficulties he was displaying. There were various letters of support indicating the appellant's integration into the United Kingdom.

9. Judge Bowes did not find the new evidence justified dealing de novo with the respondent's original decision. The judge found the principles in Devaseelan -v- SSHD [2002] UKIAT 0072 applied. The judge at paragraph 51 said that Designated Immigration Judge Manuell had found several reasons for dismissing the claim. He had found it implausible that the Taliban would seek to recruit him in the way he described. Moreover if they suspected he was an informer he would have been killed. It was not considered plausible that the Afghan police would regularly interrogate the appellant as claimed.

10. At paragraph 52 Judge Bowes said :

Although I accept Mr. W A's evidence and that of the appellant's solicitor corroborates that of the appellant to a degree, the previous decision did not stand and fall on the question of whether the appellant's father had been a Taliban member or that he had been killed. There were further and substantial concerns about the evidence given by the appellant, which were not addressed in the evidence before me.

The judge at paragraph 54 said:

Aside from the additional evidence from Mr. W A and the appellant's solicitor, I find that the issues and evidence with regard to the asylum claim materially the same as the previous appeal. I find that I must treat the grounds of appeal in respect of the appellant's asylum claim as decided by the previous judge.

11. Judge Bowes made additional findings. Based on the evidence of the psychologist and the schoolteacher it was accepted that the appellant's emotional development was behind that which would be expected of an 18-year-old boy. The judge accepted that the fact the appellant was now 18 did not mean that any risk in Afghanistan would automatically disappear. The judge was satisfied the appellant's family were no longer in the village and accepted that it was likely he would be unattached if returned. Whilst concluding the appellant may be vulnerable the judge was not satisfied he would be at particular risk or that there was a real risk of a breach of article 3. Article 2 was not pursued.
12. In allowing the appeal under paragraph 276 ADE the judge acknowledged the appellant has lived in Afghanistan for 13 years; spoke the language; and had acquired skills in the United Kingdom which would help him on return. The intention would be for return to Kabul but the evidence did not suggest he had ever lived there before. The judge found the psychologist's evidence credible and that return was likely to cause deterioration in his mental health. The judge also accept that the appellant was now very westernised.

13. At paragraph 67 the judge recorded :

I find that in essence, if the appellant were to be returned to Afghanistan, it would be the equivalent of returning an emotionally immature British teenager with mental health difficulties to that country. I find such a boy would encounter very significant obstacles to his integration. Whilst this appellant may speak the language, he would effectively be returning alone to a culture which, save for his religion, he appears to have abandoned. He would have few, if any contacts to assist him in Kabul and the network of support of adults he has in the UK would be lost. It is likely that his mental health would suffer. Taking the evidence in the round, I am satisfied that these factors are cumulatively capable of amounting to and do amount to very significant obstacles to the appellant integration into Afghanistan.

14. Having allowed the appeal under paragraph 276 ADE the judge went on to say at paragraph 69:

As I have allowed the appeal under the immigration rules, I have not considered whether article 8 applies directly. Had I done so, for similar reasons as set out above, it is likely that given the appellant's integration into the UK and his mental health difficulties, I would have found the respondent's proposed interference with the appellant's private life to be disproportionate.

The Upper Tribunal

15. The respondent has not sought to challenge the finding on problems of reintegration and the appeal succeeding under paragraph 276ADE.

16. The appellant's representative when seeking leave submitted that as Judge Bowes had come to a different conclusion from DIJ Manuell about his father being a Taliban member who had been killed then the rest of the claim should have been examined again. It was also submitted that the judge's conclusion that the appellant would not face an article 3 risk on return was unreasonable on the found personal facts.

17. At hearing Ms Foot relied upon the grounds raised when seeking leave to appeal. The first argument was that given the acceptance the appellant's father was in the Taliban and had been killed the judge should have reassessed the appellant's claim in its entirety. The second argument was that the findings about the appellant's mental state; the lack of support available to him on return; and the conditions in Kabul should have led to a finding that 15 C and article 3 applied.

18. In response Mr. Duffy refers to paragraphs 51 to 54 of the decision as setting out adequately the judge's reasoning. He pointed out that the issue in paragraph 276 ADE related to the appellant's integration and this was a different test from that arising in the grounds argued by Ms Foot.

19. Both parties were agreement that if I found a material error of law in relation to the first point the matter should be remitted to the First-tier Tribunal. If there were merit in the second argument it could be dealt with in the Upper Tribunal.

Consideration.

20. The answer to the first ground is contained at paragraph 52 of judge Bowes decision: namely, the previous decision did not stand or fall on whether the appellant's father had been a Taliban member or had been killed. The judge referred to further and substantial concerns about the evidence of the appellant not addressed by the fresh evidence. The appellant was making claims about what happened to him and the risk he faced. These had not been believed in the first appeal. Examples are his claim about the Taliban throwing messages over the house wall and the police repeatedly interrogating him. Judge Manuell he found that had the appellant revealed to the Taliban he had given he police information about them he would have been killed. Judge Manuell noted the entire family did not leave and go for instance to Pakistan. Consequently, I see no merit in the first argument advanced.

21. I find greater force in the second argument given all that was found about the appellant's integration into life in the United Kingdom; his mental health issues; and the lack of support on return. I bear in mind what was said in AA (Unattended Children) Afghanistan CG [2012] UKUT 00016 on the return of children and the view that although an adult the issues remained for the appellant.

22. Whilst the issues in paragraph 276 ADE and article 3 and humanitarian protection are different, on the facts of this case there is an overlap. The personal findings made and the comments in paragraph 67 indicated that to return the appellant could cause a real risk breach of article 3 and entitlement to humanitarian protection.

23. Judge Bowes at paragraph 56 to 58 sets out relevant findings. The judge concluded the appellant may well be vulnerable. However the judge was not satisfied of particular risk factors. Whilst finely balanced it is my conclusion that there was a material error of law here given the findings. I remake the decision and allow the appeal not only under paragraph 276 ADE but also under article 3 and that the appellant is entitled to humanitarian protection.

Decision

24. There was a material error of law in the decision of First-tier Tribunal Bowes and I remake the decision and allow the appeal not only under paragraph 276 ADE but also under article 3 and find that the appellant is entitled to humanitarian protection.

Deputy Upper Tribunal Judge Farrelly