Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: AA 10958-10

THE IMMIGRATION ACTS

At
Decision signed: 17.06.2013
on 29.05.2013
sent out:

Before:
Upper Tribunal Judge
John FREEMAN

Between:
Kamaluddin HANIFI
appellant
and

respondent
Representation:
For the appellant: Raza Halim (counsel instructed by Kesar & Co, Beckenham)
For the respondent: Miss Helen Horsley

DETERMINATION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge John Ritson), sitting at Birmingham on 22 September 2010, to a s. 83 ‘‘upgrade’ appeal by someone who claims to be a citizen of Afghanistan, born 1 September 1995. The appellant got into this country in the back of a a lorry and claimed asylum on 25 February 2010, giving a history of having left Afghanistan six months before. On 11 June he was refused asylum, but given leave to remain to 1 March 2013, when he was 17½.
2. On 23 December 2010 Judge Lance Waumsley, with the consent of the Home Office, declared an error of law in the judge’s decision, and directed a re-hearing. This was listed before Irwin J and Judge Catriona Jarvis on 19 January 2011; but, instead of re-hearing the case themselves, they gave detailed directions, written by Judge Jarvis, and running to four pages. These included, by way of a note, that the appellant’s claimed age was accepted; but not his claim to be from Afghanistan, which they described as a ‘key issue’ for decision.
3. Though Mr Halim recalled this issue being conceded by the presenting officer on one of the several preliminary hearings which have taken place, neither the Tribunal file nor Miss Horsley’s bore any indication of that; so it remains a live one for me to decide. Further directions were given by Judge Jarvis on 8 March and 13 May 2011, but for one reason or another it was not possible for her to hear the case herself before she fell sick, and eventually it was listed before me. Since what I had to do amounted to a full fresh hearing, there is no need to go into any of the directions here. I shall return in due course to what is said in them relevant to credibility.
4. The appellant’s case as set out in his statements (25 May 2010 and 1 March 2011, both of which he confirmed in oral evidence) is as follows. He was born and brought up in Chaharbagh village, Qarghani district, Laghman province, Afghanistan, and lived there with his parents, going to school for about two years up to the age of seven or eight. He had two younger brothers, whose names he gave in oral evidence as Mustafa and Abubakar. His father worked as an interpreter for foreign forces: he didn’t know which, but he had seen pictures of him with European-looking people. One night a letter arrived: the appellant heard his father say it came from the Taleban, threatening him and his family if he didn’t stop working for the foreigners. However his father needed the money, and went back to his job.
5. The appellant had a maternal uncle called Ahmed Shah, living at a nearby village, whose name he didn’t know, but where he and his family regularly went to see him, sometimes on foot, and sometimes not. One evening, when his father was next on leave, he and his mother were at his maternal uncle’s, and his mother asked if he could stay the night, which he did, while she went home to his father. Next morning when he went home, he found the family house burnt down, and was told by neighbours that both his parents were dead: his two younger brothers were still alive, with bandages round burns on their legs. Because of the letter, the appellant assumed that this had been an attack by the Taleban.
6. After this, the appellant and his brothers went to live with their maternal uncle. Some time passed, and his uncle told him he was getting old, and wouldn’t be able to help him if trouble came; so he was making arrangements for him to leave Afghanistan. His brothers would have gone too; but they were still too young. In due course the appellant’s uncle sold some land, and an agent came and collected him from his uncle’s, for a destination unknown to him. On his way to this country he passed through various countries: while he was in Iran, another boy from his village who was on his way west too received a phone-call from his own paternal uncle, who passed on the news that the appellant’s uncle was dead.
7. It was when the lorry in which the appellant was travelling got to Corby that he got out and was picked up by the police. Arrangements were made by the local authority to put him in foster care, with a gentleman whose name he gives simply as Ray, and his family. Ray was present at the appellant’s asylum interview as ‘responsible adult’, and, if I read the interviewer’s handwriting right, his surname is Skeen. It was good to see, not only a Northamptonshire social worker, but Mr Skeen too in court for the hearing: both he and the local authority have clearly done their best for the appellant. However Mr Halim realistically made no attempt to base his article 8 case for him on his “private and family life” in this country, as opposed to what would await him in Afghanistan.
8. Cross-examined, the appellant said he hadn’t known, when asked at interview on 17 May 2010, who his father was working for, or what languages he was using, because he was too young at the time. However his father had worked a month on, then a week off: when he went back, he used to leave the house in uniform. The appellant confirmed what he had said in his second witness statement about his father not wanting to talk about his work (though he had shown him the photographs), because he was afraid of his children talking to others, and so putting the whole family at risk; but he agreed it had been no secret that he was working for foreign forces.
9. As for why the appellant hadn’t been able to give the name of his uncle’s village, or any neighbouring ones, there was no bus service in the area, so he hadn’t needed to know it. He did know there were other villages in the district, because people in his own had used to discuss their inhabitants and mosques; but they didn’t mention their names. His school was only ten minutes from the family home: it wasn’t true that he had been unable to say (in answer to Q22 at his interview) where his school was, other than that he had used to walk there “sometimes fast, sometimes slow”. The interpreter hadn’t translated his words properly.
10. The appellant had stayed in his uncle’s village with him for nearly 18 months, till he left Afghanistan in about August 2009, shortly before he turned 14. He had no language problems in Iran, since his mother, being a Tajik, had spoken Dari (rather than Pushtu like his father, and people in the area generally): Dari is very similar to the Persian spoken in Iran, under the name of Farsi. The appellant’s uncle had given him neither any contact arrangements, nor any details about where he was going: his uncle had no mobile, which was commoner in those days, when they cost more than people could afford.
11. In the appellant’s bundle, compiled for this hearing, there is a letter to the appellant from the British Red Cross, dated 14 July 2010, saying they had started the process of tracing his brother Mustafa, in response to his request of 8 June. At the hearing Mr Halim produced for the first time a series of further letters from the Red Cross to the appellant, each bearing a date three or four months after the last, going up to 15 February 2012: neither he nor his solicitors had taken the trouble to provide photocopies of these, so that they were not available till after the lunch adjournment, when the appellant had finished giving evidence.
12. Each of the letters is headed ‘Tracing enquiry regarding Mustafa Hanifi’, and none of them mentions any other name sought. Most of the letters are signed by Tim Hollis, of the British Red Cross International Tracing and Messaging Service at Leicester. Each of them ends with a standard disclaimer, saying that the opening of a tracing request should not be taken as evidence, either that the person sought is or is not missing, or does or does not exist, with a similar one about requests for the transmission of messages.

13. The letters seem to be in standard form, apart from the final one of 15 February last year. That ends with a note, in bold type in the original, which is worth setting out in full:
NB: the Afghan Red Crescent Society Field Officer reported that Qarghayi is a big district of Laghman Province which includes several villages and it seems unfeasible to locate a person only by his/her name in such a big area, however the Field Officer added that he contacted many persons at the main market of Qarghayi and afterwards he went to the Qarghayi High School and asked about the sought person from the Head of the school and many other students. Regretfully nobody recognized either the Sought Person and the family, nor the enquirer.
If you can provide the following information we may be able to initiate a proper search:
Precise name of the village
Name of the nearest Mosque
Name of a well known person living in the neighbourhood
Name(s) of the villages which are near your own village
14. The appellant had said in cross-examination that he had asked the Red Cross to trace both his brothers, Abubakar as well as Mustafa: he didn’t know why they hadn’t mentioned Abubakar. He had no other family members in Afghanistan, since his maternal uncle was dead. He confirmed (see his second witness statement, paragraph 21) that he had given his uncle’s name to the Red Cross: he says there that this was on his solicitor’s advice, as not tracing him would be the only way of proving he was dead. In oral evidence the appellant added that he had given his uncle’s name to help trace his brothers; but he hadn’t been able to give the name of the mosque, or the school, as he didn’t know them. The letter of 26 May 2011, the only one not from Mr Hollis, had given 2000 as Mustafa’s date of birth; but the appellant said that hadn’t come from him. He couldn’t explain why the name of his own village, Chaharbagh, wasn’t mentioned in any of the letters.
15. The ‘country expert’ relied on for the appellant is Mr Mir Abas, who is a British citizen of Afghan origin, trading under the name of ‘Afmart I.T.A.B. Interpreting/Translation & Associate Bureau’. After taking his degree in engineering at Kabul, he was a junior diplomat at the Afghan Embassy in London till 1992, since when he has been engaged in his present business, including a spell at a United Nations conference in Bonn in late November 2001 as “official translator1 for the UN”. He says he has translated various books from Dari and Pushtu into English, and also follows the situation in Afghanistan closely and very keenly: he has been interviewed by the BBC and Voice of America “… as a political analyser of Afghanistan situation. I am able to write reports about the situation in Afghanistan, particularly on nationality issues”.
16. Miss Horsley objected to Mr Abas being treated as an expert witness at all, and it is certainly not clear from the cv he gives for himself what specific expertise he could have on nationality issues. However, it is certainly not necessary for a ‘country expert’ to be an academic or a journalist, and I prefer to consider his evidence on its merits, and then make up my own mind whether or not he should be treated as an expert, and if so, how far. He does not give any details about himself or his own place of origin, beyond what is in his cv, and cites by way of sources only the ‘Provisional Gazetteer of Afghanistan’, and that only for the information as to there being 400 villages in Laghman province.
17. The main part of Mr Abas’s report, headed ‘Interview’, consists in a sort of questionnaire administered by him to the appellant. Mr Abas records that the appellant is fluent in both Pushtu (his father’s language) and Dari (his mother’s), which as he mentions are both official languages in Afghanistan. The only evidence-based support he gives for this assessment, however, is the appellant’s ability, at Q32, to give the right answer to a simple sum in Dari. The previous questions vary from topography specific to Laghman province, which the appellant answers correctly (at Qs. 5 – 7), to ones about his own village at Qs. 8 – 10. Here the appellant is unable to give the name of his village headman (malik), though he knows he is a Pushtun. As for the head of the mosque, he knows only that people called him ‘Mullah Saheb’, which is of course a title, rather than a name: ‘Monsieur le curé’ would be a familiar European equivalent.
18. There are quite a number more questions about Laghman, and about Afghanistan generally, most of which Mr Abas says the appellant gets right. However, the only one specifically about his own village for which Mr Abas records what he regards as a correct answer is Q. 23, where the appellant says the people there speak both Pushtu and Dari. Since Mr Abas does not claim any specific knowledge of his own about the village, and the appellant does no more than locate it in Qargha district (clearly the same as the Qarghayi referred to in the Red Cross letters), about an hour’s drive from Laghman city, it is hard to see how he can vouch for this with any degree of expertise.
19. The directions given, so far as relevant to the appellant’s credibility, appear at paragraphs 17 – 19 of the original: they are helpfully set out in Mr Halim’s skeleton argument, together with the only specifically authoritative material relied on. The passage from the directions reads:
17. It does not appear that at any stage since his arrival in the UK on 25 September 2010 the respondent has taken any steps to facilitate contact between the appellant and his family, it having been accepted that he was an unaccompanied child on arrival in the UK (although the appellant produced evidence to show that he had personally been in contact with the Red Cross on 8 June 2010);
18. This is despite Article 19 of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (“The Reception Directive”) and Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulation 2005, as well as the 1989 UNCRC; and the respondent’s Asylum Policy and Process Instruction, including currently the Asylum Process Guidance on Asylum Claims of Children of September 2010, all which plainly show that it is accepted that it is the responsibility of the Home Secretary to take steps to facilitate contact between child and family, always assuming that to be a safe and appropriate course in the best interests of the child.
19. Whilst there is, in general, an evidential burden on a person who asserts, that must be considered in the light of the responsibilities of the Home Secretary in these particular circumstances as set out in the law referred to above. Further, the correct approach to and treatment of the evidence of children is one that takes properly into account the characteristics of children as well as of the individual child and it is not, in general, appropriate to attribute to a child the same degree and nature of knowledge, understanding, motivation and basic education in relation to any given aspect of a case, as may, rightly or wrongly, be attributed to an adult. The use of adverse credibility findings as the method of exclusion of a child from international protection is not indicated by the guidance, and greater weight is to be given to background, expert and professional evidence (see e.g. the UNHCR Handbook (Geneva 2000)).
18. The material referred to by Mr Halim comes from the UNHCR’s Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees [‘the UNHCR child guidelines’]. The selected paragraph follows:
72. Some children may omit or distort vital information or be unable to differentiate the imagined from reality. They also may experience difficulty relating to abstract notions, such as time or distance. Thus, what might constitute a lie in the case of an adult might not necessarily be a lie in the case of a child.
19. Mr Halim also mentions that the UNHCR child guidelines cite a Finnish Government report: this is the part selected by him
There are also cultural differences in what kind of behaviour is expected of a child of a particular age. In this respect there is a possibility of misinterpretation of behaviour in the interview situation. One also has to bear in mind that a child’s outward behaviour and level of understanding may be in contradiction with each other. Asylum-seeking unaccompanied minors may try to present a more mature role than befits their age because of the heavy responsibility of the role that is placed on their shoulders by their family; the child feels that he/she has to manage the task given by the parents and will try to present a brave face, even though he/she may not totally grasp the reasons for having been sent away from the home country and is experiencing insecurity.
20. Findings of fact The directions given by Irvine J and Judge Jarvis of course have to be treated with respect: however, it must also be borne in mind that
(a) they do not purport to be a final determination of any issue in the case, except so far as necessary to decide that the first-tier judge had made an error of law, which required a fresh hearing;
(b) they were given, as long ago as January 2011, in the context of an ongoing issue about the duty of the Secretary of State to trace the relations of unaccompanied minors, about which a good deal more has since been said by the higher courts;
(c) so far as they may have been intended to include rulings on the general approach to be taken to the credibility of an unaccompanied minor, they were not submitted, in the form of a final decision or at all, to the Tribunal’s Reporting Committee, the body in charge of regulating which decisions appear, either as ‘reported’ or as country guidance decisions, with a view to authorizing their citation in other cases.
21. I do not approach the first task in hand, which is the very basic judicial one of finding the facts in issue, with any specific outcome in mind, least of all of finding a “…method of exclusion of a child from international protection”. I simply have to discover the truth, so far as relevant, and bearing in mind the burden and standard of proof, which in this case, as in all asylum appeals, is on the appellant to persuade me that the facts on which he relies are at least reasonably likely to be true. In doing so, I shall very much bear in mind the UNHCR child guidelines, and, so far as they approve them, those set out by the Finnish Government.
22. This appellant is an intelligent young man, whose English (he hardly had to resort to the Tribunal interpreter at all) do him, the Skeen family and his school here (from which he has a good report) considerable credit. His present language skills however are rather by the way, because the main questions to be decided are
(a) where he had come from (meaning of course his country of origin) when he arrived in this country and was interviewed back in March 2010, when he was only 14½;
(b) what his and his family’s history there had been, with any significant developments since; and
(c) whether he now has any friends or relations to look after him if returned there now, so far as he may still need them at 17¾?
23. I have read Mr Abas’s report with some interest: it represents an attempt to meet on behalf of an appellant the objective more often aimed at by the familiar kind of questionnaire administered in Home Office interviews. The difficulty in each case is that the information which vouched for the correctness of the answers is validated only by the claimed knowledge of the interviewer. While Mr Abas may very well know very much more about Afghanistan from personal experience than most, if not all Home Office interviewers, he gives no more details about his own life there than the engineering degree he took in Kabul in 1981, and his service at the Foreign Ministry there from 1983 – 89. As for any published sources, with one minor exception, there are none.
24. In my view Mr Abas’s claim to be considered as an expert on things Afghan generally is something which ought not to be taken for granted, certainly till his expertise has been tested by subjecting himself to cross-examination, and perhaps considered in a ‘reported decision’. I do not propose to have this decision ‘reported’; but the Home Office may cite it in any appeal where these or any other solicitors seek to rely on Mr Abas, or anyone in a similar position, without calling him to give oral evidence. The evidential basis Mr Abas gives for the appellant’s language skills, one of the few points where his experience as an interpreter does suggest he can be regarded as an expert witness, is particularly sparse.
25. Having said that, I see no reason not to accept Mr Abas’s view on the individual case in hand, to the extent that this appellant does come from Afghanistan. So far as I can verify the information from his validation of the appellant’s answers from my own judicial experience and general knowledge, which I can for Qs. 29, 33 – 34, and 38 – 41, those do all seem to be correct, though I question how far the names of the days of the week may be unique to Afghanistan. That decides question (a) in the appellant’s favour.
26. Questions (b) and (c) may be taken together, in the light of my answer to question (a). Mr Halim urged on me the consistency of the appellant’s answers in giving his history at different times: certainly the information he has provided has contained no significant inconsistencies. However, the more salient question in this case involves what the appellant has not said: in turning to this, of course I do very much bear in mind his age at the relevant times.
27. Dealing with the points on which the appellant was cross-examined in the order already set out, I shall start with 7. When he says the events which led him to leave Afghanistan took place, the appellant was a boy of no more than 12½. With that in mind, I should not regard it as unreasonable for him not to have any detailed or precise knowledge of his father’s work as an interpreter. What does cause me difficulty with his case on that point is the explanation now given in his present witness statement, taken by his clearly experienced specialized solicitors, and confirmed in oral evidence by him. There cannot have been any particular reason perceived by his father to keep the details of his work from his children, when as the appellant acknowledged he used to leave the family home for the army camp where he worked, in uniform for all to see.
28. Turning to 8, I accept that the appellant might well not have known the name of his uncle’s village when he was simply visiting it, however regularly, with his family: as he points out, they either walked or got a lift, and clearly there would have been no bus, with or without a name on it, that he needed to look out for. On the other hand, by the time the appellant left Afghanistan, he had spent 18 months living at his uncle’s, and was nearly 14. In those circumstances, I do not accept that he can have been unaware of the name of the village.
29. Nor do I accept that the appellant could have been unaware of the names of other villages in the area, since he says he heard people talking about them. Not remembering all the names might have been one thing; suggesting that people somehow managed to discuss the villages, their inhabitants and mosques without mentioning the names of the locations involved is quite another. I do not know, nor is there any evidence as to whether mosques in rural Afghanistan are referred to by individual names, as opposed to those of the villages where they stand2; and so I do not set any store by the appellant’s failure to give the name of his. However I do not accept that the appellant, at 14½ when interviewed, would have been incapable of mentioning that his school had been in the same village where he lived.
30. The last point is of less importance in itself; but the general difficulty is that this appellant has in my view shown himself reluctant to give information, which might be verifiable, about his home village and surrounding area. This difficulty comes into particularly sharp relief with the points raised at 10 – 11. I have already given my view that this appellant is a very intelligent young man, and he must be well able to understand the importance of getting a favourable answer to my question (c), in terms of the effect of the authorities on the treatment of unaccompanied minors, particularly those from Afghanistan.
31. While the primary duty was on the Home Office to trace any relations he might have in his country of origin, and despite the disclaimer on the Red Cross letters, the appellant’s solicitors quite sensibly advised him to make a tracing request for those of his relations who might still be alive. None of the Red Cross letters mentions any other name than that of the appellant’s brother Mustafa: the appellant said in his oral evidence that, on his solicitors’ advice, he also gave them the name of his maternal uncle.
32. I do not set any store by the appellant’s apparent failure to mention his brother Abubakar, as well as Mustafa: it would not have been easy for the Red Cross to trace a boy of that age, and someone like the appellant might well have thought it would add nothing to name him. Nor do I see any particular significance in the appellant’s denial that he had given a date of birth for Mustafa: it is possible that he could have forgotten doing so.
33. However, the name of the appellant’s village would have been such an elementary piece of information that I do not accept that, even at just under 15 when the Red Cross inquiries started, he would have been unable to give it. Even if that had been so, he knows the name (Chaharbagh) perfectly well now, and has not suggested that he had forgotten it and then remembered it again. This takes me to what I consider the salient part of the evidence about the Red Cross inquiries: see 13.
34. On 15 February 2012 the Red Cross sent the appellant the detailed letter referred to there; while he might have had some difficulty replying to their inquiries without any help at all, he has not only had Mr Skeen and the Northamptonshire social services to turn to; but, at least since 15 August last year, when they represented him on what turned out to be an abortive hearing, the services of his experienced specialist solicitors. They have produced the Red Cross letters; but, though Mr Halim chose in his skeleton argument (paragraph 21) to present this as a case of “… ongoing co-operation with the Red Cross – engaged at the A’s instigation”, there has been no evidence at all of any attempt to answer the detailed request for information which might have helped in tracing the appellant’s family, contained in the last of them.
35. While the appellant’s own evidence was that he didn’t know the names of any neighbouring villages, I have rejected that, for the reasons given at 29; more importantly, he has never claimed to have forgotten, or not to have known the name of his own village. I do not accept that a professionally represented appellant, even one of his age, who had received the letter of 15 February, could have failed to pass on that basic and vital information at any time between 15 August 2012 and 29 May 2013, if he really didn’t know where his family were, and genuinely wanted help in tracing them.
36. I also do not accept, for the reasons already given at 28, that the appellant could have been unaware of the name of his uncle’s village, or failed to give that too, whether his uncle was dead or not, if he genuinely wanted to help trace his family as a whole. Nor do I accept that he could have given the Red Cross his uncle’s name as he claims: they have been punctilious throughout, as one would expect, in recording what information they had, and what they needed.
37. I bear in mind not only the appellant’s age, but the dicta in the authorities to which Mr Halim referred me on this point (per Neuburger LJ in HK [2006] EWCA Civ 1037 and per Sedley LJ in Gheisari [2004] EWCA Civ 1854, both to the effect that the inherent unlikelihood of an account does not mean, at least in this field, that it is necessarily untrue. However, given this appellant’s sustained, and in my view deceitful attempt to present himself as all alone in Afghanistan, if not the world, I am not prepared to accept that he is, as he claims, an orphan of parents murdered by the Taleban; or that he has been left without any relations to turn to in his home area.
38. Conclusions Those findings of fact answer questions (b) and (c), and decide the appeal against the appellant, so far as Refugee or Human Rights Convention risk on return is concerned, whether based on past events, or (including any claim under article 15 (c), not warranted by the general situation for those of the appellant’s age with families to turn to), the appellant’s current likely position in Afghanistan. They also dispose of his article 8 claim, based as it is on what he says awaits him there. If this appeal were to succeed at all, it could only be on the basis of the Home Office’s admitted failure to make tracing inquiries of their own about his family.
39. There are in my view two irrefutable answers to a claim on that basis. The first is a question of general principle: it could not possibly be right to extend this country’s protection to someone because of the failure of its authorities to investigate a state of affairs which, once known, would have disentitled him from that very thing. The second is firmly based on authority: while in EU (Afghanistan) & others [2013] EWCA Civ 32 the Court of Appeal accepted, following KA (Afghanistan) & others [2012] EWCA Civ 1014, that a failure to carry out the duty to trace might be relevant to judicial consideration of an asylum or human rights claim, they made it very clear, not least by their decisions in the individual cases concerned, that it would not be relevant where carrying it out would have made no real difference. That in my view is the position in the present case.
Appeal

(a judge of the Upper Tribunal)