Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11285/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th May 2016
On 20th June 2016

Before

DEPUTY upper tribunal JUDGE RENTON

Between

Jamil Naim
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms J Fisher, Counsel, instructed by Camden Community Law Centre
For the Respondent: Mr S Whitwell, Home Office Presenting Officer

DECISION AND REASONS

Introduction
1. The Appellant is a male citizen of Afghanistan born on 1st January 1997. He arrived in the United Kingdom on 15th June 2011 when he applied for asylum. That application was refused but the Appellant was granted discretionary leave to remain until 1st July 2014 on account of his age. He applied for leave to remain on 30th June 2014 on the basis that he was in need of international protection. That application was refused for the reasons given in the letter of the Respondent dated 1st December 2014. The Appellant appealed, and his appeal was heard by Judge of the First-tier Tribunal E Grant sitting at Hatton Cross on 20th January 2016. She decided to dismiss the appeal for the reasons given in her Decision dated 4th February 2016. The Appellant sought leave to appeal that decision, and on 25th March 2016 such permission was granted.
Error of Law
2. I must first decide if the decision of the Judge contained an error on a point of law so that it should be set aside.
3. The Appellant, who was 19 years of age at the time of the hearing before me, applied for asylum on the basis that he was at risk on return to his home village in Afghanistan as a result of a family feud over land. This feud had resulted in the Appellant's father and brother being killed by the Appellant's paternal cousins, and his surviving mother and siblings eventually fleeing to live with the Appellant's uncle in Peshawar in Pakistan.
4. The Judge dismissed the appeal because she was not satisfied as to the Appellant's credibility. She was not satisfied that the Appellant's father and brother had been killed by the Appellant's paternal cousins, nor that it was not possible to trace the Appellant's mother, uncle, and other relations in Peshawar. The Judge found that the Appellant had not claimed to fear asylum for a Convention reason, and he had not shown that a return to Afghanistan would result in a breach of his Article 3 ECHR rights. On his removal from the UK, the Appellant would travel to Peshawar via Kabul Airport. There would be no need for the Appellant to leave Kabul Airport, and would not do so. Finally, the Judge found that the Appellant had a private life in the United Kingdom which would be interfered with by the Respondent's decision to such a degree of gravity as to engage the Appellant's Article 8 ECHR rights, but that such interference would be proportionate.
5. At the hearing, Ms Fisher argued that the Judge had erred in law in coming to those conclusions. She argued that the Judge had not given proper weight to the expert evidence given in reports by Anne Malkin, a chartered clinical psychologist, and Marion Speirs. The Judge found the Appellant to be "cunning" in stating that he could not locate his family in Peshawar, but the expert evidence was that the Appellant suffered from PTSD and acute dissociative amnesia. He was therefore a vulnerable witness and the Judge had not treated him as such. The Judge had made no proper findings in respect of this expert evidence and such findings as there were were flimsy. The Judge had given insufficient reasons for rejecting the expert evidence. The same comments could be made in respect of the expert country report of Dr Guistozzi. The Judge had erred by making no finding as to whether the Appellant would be safe on return to Afghanistan, and she had not considered the difficulties in the Appellant travelling quickly from Kabul to Peshawar. The Judge had made no decision as to whether internal relocation was reasonable.
6. Ms Fisher then argued that the Judge had erred in law by finding that there was no Convention reason. It was trite law that a family could constitute a particular social group.
7. Ms Fisher then made a submission in respect of the Judge's finding that the Appellant's removal to Afghanistan would be proportionate. This was in accordance with the contents of paragraph 17 of the grounds of application, but there was no grant of leave to appeal in respect of such a ground and therefore I will not consider it.
8. In response, Mr Whitwell referred to the Rule 24 response and argued that there were no such errors of law. The Judge had made a clear finding that the Appellant was not at risk from his paternal cousins anywhere in Afghanistan, including Kabul. This was a decision open to the Judge on the evidence before her. Relocation to Kabul was a safe alternative as found at paragraph 243 of AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC). That being the case, any error of law in respect of a Convention reason was immaterial. The core finding of the Judge appears at paragraph 13 of the Decision. The Judge found that the Appellant would be safe whilst spending a short time at Kabul Airport on his way to Peshawar. The Judge was entitled to make that finding on the undisputed evidence that the Appellant's remaining family members had settled somewhere in Peshawar. There was therefore no need for the Judge to make a finding as to the reasonableness of internal relocation as such.
9. I find no error of law in the conclusions of the Judge and therefore I do not set aside her decision. I accept that the Judge erred in law in saying that the Appellant did not fear persecution for a Convention reason because as Ms Fisher said, it is trite law that a family can constitute a particular social group. However, the Judge found that the Appellant was not at risk on return to Afghanistan for Article 3 ECHR purposes and therefore any such error of law is immaterial.
10. In my view, the Judge made negative findings of fact as a consequence of her finding as to the credibility of the Appellant, and that such a credibility finding was one open to her on the evidence before her and which she fully explained. The Judge dealt with the evidence of Anne Malkin and Marion Speirs at paragraph 13 of her Decision and explained that she attached little weight to it because it did not deal with the prospect of the Appellant spending very little time in Kabul before travelling onto Peshawar. The Judge gave reasons why she did not accept that the Appellant did not know the exact whereabouts of his remaining family. She referred to the Appellant's evasive answers on the subject and his deliberate obfuscation.
11. It is apparent from the contents of paragraphs 7 and 8 of the Decision that the Judge took account of the expert country evidence of Dr Schuster and Dr Guistozzi. This evidence was not that the Appellant would be at risk for a brief time at Kabul Airport. In paragraph 13 of the Decision the Judge explained her finding that the Appellant would not delay in Kabul and would not leave the airport there before his instant onward journey. On the basis of this finding it was not necessary for the Judge to consider internal relocation in detail.
12. For these reasons I find no material error of law in the decision of the Judge.
Notice of Decision
13. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
I do not set aside that decision.
The appeal to the Upper Tribunal is dismissed.
Anonymity
14. The First-tier Tribunal did not make a direction for anonymity. I was not asked to do so and indeed find no reason to do so.

Signed Dated 20th June 2016

Deputy Upper Tribunal Judge Renton