Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11409/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 10th May 2013
On 21st June 2013

Before

upper tribunal JUDGE RENTON

Between

F M
(ANONYMITY order MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr D Sills, Counsel instructed by JD Spicer & Co
For the Respondent: Mr P Nath, Home Office Presenting Officer

DETERMINATION AND REASONS

Introduction
1. The Appellant is a male citizen of Afghanistan whose age was originally disputed. He entered the UK illegally on 13th May 2009 and claimed asylum six days later. That application was refused for the reasons given in the Respondent’s letter of 1st October 2009. However owing to his age the Appellant was granted discretionary leave to remain until 21st September 2010. On 15th August 2010 the Appellant applied for further leave to remain. This was refused for the reasons given in the Respondent’s letter of 5th December 2012. The Appellant appealed, and his appeal was heard by Judge of the First-tier Tribunal Howard (the Judge) sitting at Hatton Cross on 17th January 2013. He decided to allow the appeal on both asylum and Article 3 ECHR human rights grounds. The Respondent sought leave to appeal that decision, and on 22nd March 2013 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. The Judge found that the Appellant was born towards the end of 1992 and was therefore 17 years and 9 months of age at the time of the hearing in January 2013. Otherwise the Judge found that the Appellant’s account of his reasons for fearing return to Afghanistan was not credible. The Appellant was no more than a 17 year old Afghan from Kabul who in the past had sold newspapers. He had not come to the adverse attention of the Taliban. However, the Appellant had lost contact with his family in Afghanistan, and therefore qualified for asylum applying the decisions in HK and Others (minors - indiscriminate violence - forced recruitment by Taliban - contact with family members) Afghanistan CG [2010] UKUT 378 and the unreported decision of AA (a child) v SSHD AA/14362/2009. At the hearing, Mr Nath referred to the grounds in support of the application for leave and argued that the Judge had erred in law in finding that a youth of the characteristics of the Appellant would be at risk on return to Afghanistan. This was because the Judge had failed to consider the Appellant’s circumstances in the light of the decision in EU and Others (Afghanistan) v SSHD [2013] EWCA Civ 32. As the Appellant’s account of events in Afghanistan had been disbelieved, he was at the extreme and wholly unmeritorious end of the spectrum as described by Maurice Kay LJ in EU. The Appellant would now return to Afghanistan as an adult, and according to paragraph 82 of the refusal letter, the Respondent had discharged his duty to trace the Appellant’s family in Kabul. The decision in KA and Others (Afghanistan) v SSHD [2012] EWCA Civ 1014 imposed only an obligation to attempt to find the Appellant’s family, not to actually find them.
3. In response, Mr Sills argued that there was no such error of law. EU did not establish any new legal principle, and in any event had been decided after the Judge had made his decision. The Judge had accepted some of the Appellant’s account and therefore the Appellant was not at the far end of the spectrum. No details had been provided as to the attempts made by the Respondent to discharge her duty to trace the Appellant’s family.
4. I do find an error of law in the decision of the Judge. It is clear from the Determination that the Judge allowed the appeal on the sole basis that the Appellant was a young man nearly 18 years of age who would return to Kabul. He had lost contact with his family there. However, the jurisprudence indicates that more than that has to be considered. This is clear from the decision in KA reinforced in the subsequent decision in EU, decided after the Judge heard this appeal, but stating the law as it was at that time. I decided to proceed to consider if the decision of the Judge should be set aside on the basis of the findings of fact and as to credibility made by the Judge which were not impugned in the grounds seeking leave to appeal.
Set Aside
5. At the hearing I again heard submissions on behalf of both parties. Mr Nath was content only to say that as a consequence of the adverse credibility findings in respect of the Appellant, and taking into account the decision in EU, the Appellant was not at risk on return to Kabul.
6. In response, Mr Sills reminded me that the Judge had found that the Appellant had lost contact with his family in Kabul. That being the case he was at risk on return following the decision in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC). The decision in EU did not indicate to the contrary. The Appellant had just turned 18 years, but as established in the decision in KA (Afghanistan) and Others v SSHD [2012] EWCA Civ 1014 there was no bright line rule excluding the Appellant from the protection he ought to receive under AA.
7. The relevant facts in this case are very simple and are as stated above. My starting point in considering those facts is the decision in HK and Others (minors - indiscriminate violence - forced recruitment by Taliban - contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) where it was held:
“1. Children are not disproportionately affected by the problems and conflict currently being experienced in Afghanistan. Roadside blasts, airstrikes, cross-fire, suicide attacks and other war-related incidents do not impact more upon children that upon adult civilians.
2. While forcible recruitment by the Taliban cannot be discounted as a risk, particularly in areas of high militant activity or militant control, evidence is required to show that it is a real risk for the particular child concerned and not a mere possibility.”
HK then went on to consider the principles to be applied when considering the credibility of any claim by the Appellant that his family in Afghanistan cannot be contacted. I do not have to concern myself with those principles because it was held by the Judge of the First-tier Tribunal that in Afghanistan the Appellant has “no discernible family to care for him.”
8. This position was approved in AA where it was emphasised that a distinction had to be drawn between children who were living with the family and those who were not. There it was decided inter alia that:
“However, the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia, from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.”
On that basis, and notwithstanding that the Appellant has no political profile in Afghanistan and that he has never come to the attention of the Taliban, I find that the Appellant will be at risk on return. Following the “bright line” rule of Maurice Kay LJ stated in KA (Afghanistan) and Others I find that it is of no consequence that the Appellant may now be just 18 years of age. I also find that the judgment in EU does not mean that it will be safe for the Appellant to return to Kabul. It is true that the Judge did not find much of the Appellant’s account to be credible, but he did accept the Appellant’s evidence that he had no family to return to. My decision therefore is that the decision of the Judge is not set aside.
Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I do not set aside the decision.
Anonymity
The First-tier Tribunal made an order pursuant to Rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I continue that order.

Signed Date

Upper Tribunal Judge Renton