Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
AA/11552/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision Promulgated
On: 22 February 2017
On: 24 February 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

BAWAR [K]
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr Brown (Counsel)
For the Respondent: Mr Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant, a 20 year old citizen of Afghanistan, has appealed against a decision of the First-tier Tribunal dated 19 July 2016 in which it dismissed an appeal against the decision of the Respondent refusing leave. I granted permission in a decision dated 19 September 2016 in the following terms:

"It is arguable that in determining whether there are very significant obstacles to the appellant's integration to Afghanistan, the First-tier Tribunal failed to take into account relevant evidence - the background evidence setting out the plight for returnees in Afghanistan - and failed to consider that evidence in the context of the appellant's circumstances."

Background

2. When he was 13 the appellant left Afghanistan and applied for asylum as an unaccompanied minor. The respondent refused his asylum claim but he was given discretionary leave to remain until he reached the age of 17. At the hearing before the First-tier Tribunal the appellant's representative withdrew the asylum claim. This meant there were two issues for the First-tier Tribunal to determine. First, whether or not the appellant displaced the burden of establishing there would be very significant obstacles to his integration into Afghanistan for the purposes of paragraph 276ADE(vi) of the Immigration Rules. Alternatively, whether his removal would constitute a breach of Article 8 of the ECHR.

First-tier Tribunal decision

3. The First-tier Tribunal set out the appellant's case in some detail [9-18, 20]. In summary, the appellant claimed that he would face very significant obstacles in integrating to Afghanistan in light of the following: his young age, he left Afghanistan when he was 13 and had become accustomed to the language and culture of the United Kingdom at a formative age and unaccustomed to the prevailing conditions in Afghanistan, he had lost all contact with family members and would have no one to turn to for support, he would receive adverse attention as a returnee from the United Kingdom and would not be able to cope.

4. The First-tier Tribunal found that there was "nothing to suggest" that the appellant would not be able to access support, employment and education upon return to Afghanistan [33]. The First-tier Tribunal also found that absent any documentary evidence regarding the attempts made to trace the appellant's family "there is nothing to suggest he is totally without any family back in Afghanistan" [26]. The appeal was consequentially dismissed under 276ADE and Article 8.

Hearing

5. At the hearing before me both representatives agreed that the First-tier Tribunal committed two material errors of law such that the decision should be set aside and remitted to the First-tier Tribunal for fresh factual findings. In my view the agreed position is the correct course to take.

6. At no point in its decision did the First-tier Tribunal direct itself to the likely conditions in Afghanistan for a young male such as the appellant. Such background evidence is directly relevant to the assessment of obstacles to the appellant's integration upon return.

7. The grounds of appeal refer to the SSHD's country information and guidance on Afghanistan ('the CIG') dated July 2016. This highlights significant challenges around integration for former unaccompanied asylum-seeking children returned to Afghanistan, such as the appellant. These expressly include finding work, a lack of family and social support and mental health problems. It is difficult to see how this could have been placed before the First-tier Tribunal as the hearing took place on 27 June 2016. The CIG however bases the material summarised above upon an earlier report dated April 2016 from the Refugee Support Network - see 9.1.4 of the CIG. This is material that could and should have been placed before the First-tier Tribunal. It is regrettable that it was not - see UB (Sri Lanka) v SSHD [2017] EWCA 75 Civ at [15-18]. In any event the First-tier Tribunal should have been alive to the potential social and economic hurdles from country guidance decisions on Afghanistan - see AA (Unattended children) (Afghanistan) CG [2012] UKUT 00016. Although the protection claim was no longer a live issue, the background material remained relevant to a full assessment of the obstacles to integration and whether they could be described as very significant.

8. In my view had the First-tier Tribunal been aware of the background material at the time of its decision it may have realistically affected the outcome. It is difficult to see how the First-tier Tribunal could reach the view that there is "nothing" to suggest the appellant could not obtain employment etc.

9. Furthermore, both representatives accepted and I agree that there is a second material error of law - the findings of fact are inadequate. The First-tier Tribunal has given insufficient reasons for not accepting the appellant's clear and detailed evidence that he has been unsuccessful in tracing his family. Although the appellant did not have documentary evidence from the Red Cross, no reasons have been provided for rejecting his own evidence. There are no clear findings regarding the appellant's credibility. There are also no findings as to the appellant's area of origin in Afghanistan.

Disposal

10. Both representatives agreed that the decision should be remade by the First-tier Tribunal. I have had regard to para 7.2 of the relevant Senior President's Practice Statement and the nature and extent of the factual findings required in remaking the decision, and I have decided that this is an appropriate case to remit to the First-tier Tribunal.
Decision

11. The decision of the First-tier Tribunal involved the making of a material error of law. Its decision cannot stand and is set aside.

12. The appeal shall be remade by First-tier Tribunal de novo.
Directions
(1) The appeal shall be reheard de novo by the First-tier Tribunal sitting at Manchester (TE: 1.5 hrs) on the first date available.
(2) Within 14 days of the sending of this decision the appellant shall indicate to the First-tier Tribunal whether he requires an interpreter (see [11] of the First-tier Tribunal decision).
(3) 21 days before the hearing the appellant shall file and serve a comprehensive indexed and paginated bundle with a skeleton argument cross-referencing to page numbers in that bundle.
(4) 7 days before the hearing the respondent shall file and serve any relevant evidence not contained in the appellant's bundle (mindful of the obligations set out in UB (Sri Lanka) (supra), together with a short letter outlining a summary of her position in light of all the materials.

Signed: Ms Melanie Plimmer Dated: 23 February 2017
Judge of the Upper Tribunal