Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11842/2015

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly
Decision Promulgated
On 3 January 2017
On 6 January 2017

Before
DEPUTY UPPER TRIBUNAL JUDGE BIRRELL

Between
HUSSRY GUL URYAKHEL
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sills counsel instructed by J D Spicer Zeb Solicitors
For the Respondent: Mr C Bates

DECISION AND REASONS
Introduction
1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.
2. The Appellant was born on1 January 1992 and is a national of Afghanistan.
3. In order to avoid confusion, the parties are referred to as they were in the First-tier Tribunal.
4. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge F Meyler promulgated on 10 May 2016 which dismissed the Appellant's appeal against the decision of the Respondent dated 18 August 2015 to dismiss the Appellants asylum and human rights claim.
5. The refusal letter gave a number of reasons:
(a) It was not accepted that he Appellants father went away and fought for the Taliban and encouraged local villagers to join him.
(b) It was not accepted that the villagers took revenge on the Appellant by beating him.
(c) The Appellants credibility was undermined by his failure to claim asylum in a safe country en route to the UK.
The Judge's Decision
6. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Meyler ("the Judge") dismissed the appeal against the Respondent's decision. The Judge found:
(a) He found that his account of events was undermined by inconsistencies and discrepancies and concluded he was not at risk from the Taliban on return to Afghanistan.
(b) He found that even if he was at risk in his local area he could relocate to Kabul.
(c) He accepted that the Appellant was suffering from depression, anxiety and PTSD but found that there was available treatment in Afghanistan and that the Appellant would have better emotional and social support from his mother and uncle in contrast to the social isolation he feels in the UK.
(d) He considered the factors set out in paragraph 353B.
(e) He took into account the statutory public interest factors set out in section 117B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act)
7. Grounds of appeal were lodged arguing that the Judge failed to adequately consider paragraph 353B and failed to apply paragraph 276ADE of the Rules .
8. On 10 June 2016 First-tier Tribunal Judge Osborne gave permission to appeal on both grounds.
9. There was a Rule 24 notice dated 22 June 2016 arguing that paragraph 353B did not apply as this was not a fresh claim; that while the Judge made no specific reference to paragraph 276ADE it was clear from his finding at paragraph 55 that he had addressed the relevant issues.
10. At the hearing I heard submissions from Mr Sills on behalf of the Appellant that:
(a) He conceded that Ground 1 was misconceived as paragraph 353B only applies to fresh claims and therefore he would not pursue that ground.
(b) The Judge had only considered the Appellants mental health problems in relation to Article 3 and 8 and had not considered it in relation to paragraph 276ADE.
(c) He relied on the skeleton argument that was before the court that the Appellants mental health problems would result in there being very significant obstacles to his reintegration into society in Afghanistan and the Judges reference to there not being 'very serious obstacles' was not enough.
(d) There was evidence of health, humanitarian and societal treatment of those with mental health problems which taken together with his length of absence from Afghanistan would have impacted on his ability to integrate.
(e) Paragraph 276ADE was crucial and had this been considered the decision could have gone the other way.
11. On behalf of the Respondent Mr Bates submitted that:
(a) The decision in question was extremely detailed about the medical aspect of the claim and he concluded that there would not be very serious obstacles to the Appellants integration back into Afghanistan as he would be with his family. Spoke the language.
(b) The Judge found that it was social isolation in the UK that had caiused his mental health problems.
(c) The pertinent issue the Judge was required to consider were the statutory pubic interest factors set out in section 117B though he clearly referenced paragraph 276ADE in paragraph 36 of the decision.
(d) It was unclear whether there was any evidence of discriminatory treatment of those with mental health problems placed before the Judge but the Judge would nevertheless have been entitled to take into account the support he would receive from his family.
(e) This is simply a disagreement with the conclusions reached.
12. In reply Mr Sills on behalf of the Appellant submitted that paragraph 36 only looked at the Appellants mental health problems as part of his medical claim: it was not a holistic assessment.
The Law
13. Errors of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on facts or evaluation or giving legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue under argument. Disagreement with an Immigrations Judge's factual conclusions, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence that was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration judge concludes that the story told is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Finding on Material Error
15. Having heard those submissions, I reached the conclusion that the Tribunal made no material errors of law.
16. I am satisfied that the grounds of appeal and indeed the grant of permission in this case were misconceived. Mr Sills properly conceded before me that while he argued the applicability of paragraph 353B before the First-tier Tribunal Judge the Judge was wrong to consider it at all as 353B applies only applies to fresh claims and this case was not a fresh claim.
17. In relation to Mr Sills argument that paragraph 276ADE was 'crucial' in this case as the Appellant met the requirements (paragraph 29 skeleton argument) I remind myself that this was a decision dated 18 August 2015 and therefore the Appellant's appeal is pursuant to Section 82(1) (b) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') which provides that a person may appeal to the Tribunal where the Secretary of State has decided to refuse an asylum and human rights claim. S84 of the Act provides that an appeal under s82(1)(b) must be brought on the ground that a decision is unlawful under section 6 of the Human Rights Act 1998. There was no right of appeal against the decision of the Respondent that the Appellant did not meet the requirements of paragraph 276ADE.
18. The Judge was therefore required to consider the refusal of a human rights claim made under Article 3 and 8 which was what he did. The Judge in a very detailed and balanced decision therefore considered the mental health claim made by the Appellant at paragraphs 34-36. He found on the basis of the rather old medical reports before him that the Appellant had since 2014 suffered from depression, anxiety and PTSD for which there was treatment available in Afghanistan. He found, against a background of the Doctors findings about his feelings of social isolation arising no doubt out of his accommodation problems and inability to speak any English, that the Appellant would be less socially isolated in Afghanistan as he could return to his mother and uncle and be surrounded by those who spoke the same language as he does. He found that the Appellant would receive emotional and social support from his immediate family and wider extended family.
19. He was arguably entitled to consider Article 8 through the prism of the Rules and therefore consider whether the Appellant could have met any of the requirements of the Rules given that they are intended to reflect the Government's and Parliament's view of how, as a matter of public policy, the balance should be struck between the right to respect for private and family life. Such a consideration would have been a factor that he was entitled to give whatever weight he felt appropriate but it was not necessarily determinative. I am satisfied that the Judge did consider the human rights claim through the prism of the Rules when he concluded on the basis that his mental health problems, in so far as they arose out of social isolation, would be assisted by the return to his family and a society where he spoke the language in paragraph 36 and that there would therefore not be 'very serious obstacles' to his integration if returned to Afghanistan. While this was not the version of paragraph 276ADE that applied at the time of the decision, criticism of his language is harsh given that the Judge may have been misled by Mr Sills use of these words from a previous version of the Rules in his final submissions and his skeleton argument. Before me of course Mr Sills used the correct version of the Rules that applied at the time of the decision, 'very significant obstacles' which if anything is a higher hurdle to meet. I am satisfied it was open to him to conclude that given his findings he did not meet that hurdle.
20. While not specifically referring to societal treatment of those with mental health problems I note that there was no evidence before the Judge that the Appellant suffered from depression prior to his arrival in the UK in 2008 and the medical evidence before the Judge suggested that this arose in 2014 to a large extent out of his feelings of social isolation which are referred to by both the Appellants GP and the Psychotherapist. It was therefore clear to me that the Judge was factoring in that the Appellants circumstances would be ameliorated by returning to a supportive family environment.
21. Finally, of course this case was essentially a private life appeal as the Appellant has no family life in the UK. Notwithstanding the argument that Judges should consider Article 8 through the prism of the Rules which includes paragraph 276ADE, statute in the form of section 117B (5) states 'Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.' Quite properly the Judge concluded that little weight was to be given to the Appellants private life, such as it was, as it was established at a time when his status was precarious.
22. I was therefore satisfied that the Judge's determination when read as a whole set out findings that were sustainable and sufficiently detailed and based on cogent reasoning.
CONCLUSION
23. I therefore found that no errors of law have been established and that the Judge's determination should stand.
DECISION
24. The appeal is dismissed.

Signed Date 5.1.2017

Deputy Upper Tribunal Judge Birrell