Tribunal decisions

The decision

IAC-AH-SAR-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11790/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 11th October 2016
On 15th November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr SAVINDER SINGH DAHL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Faryl, Counsel
For the Respondent: Mr G Harrison, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Afghanistan born on 1st January 1975. Dependent on the Appellant's appeal are the claims of his three dependants, being his wife and his two children who were respectively aged 11 and 8. The Appellant claims to have left Afghanistan on 28th June 2014 travelling to Pakistan by car where he stayed for two days prior to travelling to an unknown country by air. He thereafter stayed in the unknown country for two nights before travelling by lorry arriving in the UK on 10th July 2014 whereupon he immediately claimed asylum.
2. The Appellant's claim for asylum is based upon a fear that if returned to Afghanistan he and his family would not be safe because they are Sikhs. The Appellant's application was refused by Notice of Refusal of the Secretary of State dated 10th December 2014.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Herwald sitting at Manchester on 2nd March 2015. In a decision and reasons promulgated on 6th March 2015 the Appellant's appeal was dismissed on all grounds.
4. On 20th March 2015 Grounds of Appeal were lodged to the Upper Tribunal. Permission was granted by First-tier Tribunal Judge Cox on 1st April 2015. On 15th April 2015 the Secretary of State responded to the Grounds of Appeal noting that the judge accepted that members of the Appellant's family had disappeared and that the Appellant had been attacked but however that it was entirely open to the judge to conclude that the Appellant could not demonstrate that the action taken against him was because he was a Sikh. The Rule 24 response contended that it was open to the judge to reject the claimed causal nexus and concluded that the Appellant had not established a real risk on return. The Secretary of State contends that the mere fact that other children that the Appellant is aware of apparently disappeared did not establish that there was a real risk to Sikhs and Hindus and that the judge was not bound by the authority of DSG which unlike SL is not a country guidance authority, and the fact that the judge chose not to depart from SL was a conclusion that was open to him.
5. The appeal first came before me on 3rd May 2016. At that hearing the Appellant was represented by Counsel, Ms Faryl was extremely familiar with the appeal having appeared before the First-tier Tribunal and was also the author of the Grounds of Appeal. The Respondent appeared by her Home Office Presenting Officer, Mr Harrison.
6. I was satisfied that there were material errors of law in the decision of the First-tier Tribunal Judge. The country guidance authority which should have been applied was not available before him and I was satisfied that the judge's reasons not departing from the guidance in SL was inadequate particularly bearing in mind that in DSG the Tribunal found there was clear justification to do so due in large part due to the dwindling numbers of Sikhs and Hindus remaining in Afghanistan and had gone on to find the Tribunal's figures in SL were significantly wrong. I was satisfied that that in itself constituted a material error of law.
7. Further this case was made more complex by the fact that the judge has failed to make any Section 55 findings with regard to the best interest assessment in respect of the two minor children.
8. In such circumstances when looking at this case in the round and the fact that the judge has not considered the most recent country guidance authority of TG I was satisfied that the correct approach was to find that there was a material error of law and to set aside the decision of the First-tier Tribunal Judge. However the issues are ones of law and can be dealt with by way of submission rather than fact. The credibility of the Appellant's testimony is not challenged and the findings of fact do stand. In such circumstances I directed the case remain within the Upper Tribunal reserved to myself and I set out directions for the further hearing of this matter.
9. It was on that basis that the appeal comes back before me. The legal representatives remain the same which makes the conduct of this hearing considerably more straightforward.
10. In giving directions I found that the findings of fact and credibility were to stand, and that there were two outstanding issues, namely:
(i) whether in the light of the country guidance authority of TG and Others (CG) [2015] UKUT 00595 the Appellant had satisfied the Tribunal for a Convention reason he and his family face a real risk of persecution if returned to Afghanistan; and
(ii) to enable the Tribunal to consider the best interests of the minor children pursuant to the guidance given by statute and case law.
I also directed that the matter be addressed by way of submissions only, and that there be leave to either party to file any further objective evidence upon which they intend to rely at least seven days prior to the restored hearing.
Submissions/Discussion
11. Mr Harrison and Ms Faryl both indicate there was no further objective evidence they wish me to consider. Mr Harrison relies on the Notice of Refusal of 10th December 2014. He takes me to that document. He points out that it is accepted that the Appellant is an Afghan national of the Sikh religion from Kabul. However he submits that the rest of the submissions made by the Appellant are not accepted by the Secretary of State and the Secretary of State contends that some aspects of the Appellant's case are not credible.
12. Ms Faryl points out that discussion with regard to issues of credibility are irrelevant and that Judge Herwald accepted that the Appellant's father and daughter had disappeared and that the correct approach for a starting point is to consider the Grounds of Appeal of 20th March 2015 which are adopted by Judge Cox in his grant of permission dated 1st April 2015. She submits that there are no credibility issues and that it is in fact accepted that the Appellant's father and daughter had disappeared and that the Appellant and his family have been attacked. On that basis she relies on the country guidance given previously in SL and Others (Afghanistan) CG (Returning Sikhs and Hindus) [2005] UKIAT 00137. She submits that that is authority for stating that so far as the Refugee Convention is concerned, it is not necessary that any risk on return by a Sikh or Hindu to Afghanistan is solely by reason of ethnicity or religious opinion but that it will suffice if a Convention reason forms a real part of the reason why there may be a real risk of persecution. She points out that at paragraph 14 of Judge Herwald's decision he noted that the Appellant had not been cross-examined with regard to the attack upon him and therefore his contention must stand as a Convention reason. She points out that the Appellant has been targeted because he was a Sikh and that it was due to the failure of the Secretary of State to cross-examine on facts that the Appellant specifically relied upon. The judge seemingly was unable to make a causal link that the Appellant had suffered persecution. She contends that the conclusion reached by Judge Herwald at paragraph 19 of his decision that the ill-treatment suffered was not of sufficient severity to cross the threshold of persecution is completely irrational and begs the question of what actually amounts to persecution. She relies on the up-to-date authorities, firstly DSG and Others (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 00148 referring me specifically to paragraphs 11 and 22 of that determination which highlight the very limited number of Sikhs that remain in Afghanistan. Secondly, she goes on to emphasise that the most recent authority of TG and Others was not available to the First-tier Judge and that it does make a difference and that you have to give due consideration to the cumulative effect of the treatment suffered.
13. She points out that this is a family with two children with nowhere to go and no family in Afghanistan. She emphasises that the authorities show that it is increasingly difficult for Sikhs to obtain employment. Consequently, there is a vicious circle that Sikhs are unable to establish themselves and because of the harassment they face they are unable to stay in places of their choosing whilst they try to establish themselves. She submits that the Appellant comes within this category and that following the authorities the appeal should be allowed.
14. Secondly she points out the Immigration Judge has failed to address Section 55 of the 2009 Act. She submits that this is material because of country guidance and the reference therein to access to education for children and the shortage of adequate facilities in Afghanistan. She submits that this makes relocation on return to be an unreasonable option. She asked me to allow the appeal.
15. Mr Harrison in brief further submission comments that he wonders how past persecution has created a valid reason to presume that the Appellant's own safety may be jeopardised and whether the treatment that has been suffered by adults would be meted out to children. He does acknowledge that if there is a risk then it is appropriate for Section 55 to be considered.
Findings
16. With due respect to both advocates they both, to a certain extent, have failed to concentrate their submissions on the points in principle that were for consideration. This was a rehearing based entirely on two issues as set out in the directions and set out above. Findings of fact and credibility were, and continue, to stand. The principal issue was whether or not, in the light of TG and Others, the Appellant had satisfied the Tribunal that for a Convention reason he and his family faced a real risk of persecution if returned to Afghanistan. This case emphasises that a consideration of whether an individual of the Sikh and Hindu community is at real risk of persecution upon return to Afghanistan is fact sensitive and sets out relevant circumstances that must be considered. Further also it noted that whilst there is a willingness at government level to provide protection, it is not established on the evidence that at local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms to those members of the Sikh and Hindu communities who experience serious harm or harassment amounting to persecution. Further, whether it is reasonable to expect a member of the Sikh or Hindu community to relocate again remains fact sensitive. It is noted that Sikhs and Hindu communities are declining in number and that those without access to an independent income are unlikely to be able to reasonably relocate because of depleted support mechanisms.
17. It is thus necessary to go back and look at the facts found in the light of this by the First-tier Tribunal Judge. It was accepted that the Appellant's father was missing, although there was no finding made that he was deceased. It was accepted that the Appellant's daughter had disappeared. Further, the attack on the Appellant was not inconsistent with his other evidence and that he was found to be a credible witness and it was inappropriate to discount any fear expounded by both him and his wife about life in Afghanistan for Sikhs.
18. Applying that criteria to the current case law, which to a considerable extent emphasises issues raised in DSG and Others, it is appropriate to look at the cumulative effect of the treatment suffered by the Appellant. I am satisfied that this is an Appellant with two children without employment in Afghanistan and effectively with nowhere specifically to return to and no family to return to. He is someone who would find it increasingly difficult to obtain employment. It is extremely unlikely considering his financial circumstances that he will have the ability to access basic accommodation and in his factual circumstances relocation would be extremely difficult.
19. Further, giving due consideration to Section 55 of the 2009 Act. Ms Faryl was correct to make reference for findings made in TG that the general evidence indicate there have been occasions of Hindus and Sikh families not sending their children to school in Afghanistan especially as a result of the fear, harassment and ill-treatment which is corroborated by the evidence. I am satisfied, having considered the evidence as it was previously considered by Judge Herwald and the recent submissions, that there is a real risk of ill-treatment and harassment to a child on return which would impact upon the children (born respectively in 2005 and 2008) receiving a proper education.
20. Considering all the issues I am consequently satisfied that following TG and DSG the Appellant and his family are likely to be at risk of persecution on return to Afghanistan and consequently I am satisfied that the Appellant's claim succeeds on asylum and human rights grounds.

Notice of Decision

I re-make the decision allowing the Appellant's appeal on both asylum and on human rights grounds.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris