Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: aa/12176/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 October 2016
On 31 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

S R Z
(anonymity direction MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr. E. Fripp, Counsel instructed by Duncan Lewis & Co Solicitors
For the Respondent: Ms J. Isherwood, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge K. Swinnerton, promulgated on 19 April 2016, in which he dismissed the Appellant's appeal against the Respondent's decision to refuse to grant asylum.

2. As this is an asylum case I make an anonymity direction.

3. Permission to appeal was refused on ground 1, but granted on grounds 2 and 3. In the grant of permission Upper Tribunal Judge Smith stated:

"Ultimately the Appellant may not succeed on these grounds, particularly when he clearly stated in interview at Q36 that the risk his father faced was not the same as the risk he faced. However, in light of the answer at Q137 that the risk to him would be exacerbated by his father's activities and also in the light of the acceptance by Judge Maxwell that his father's eldest son (who I assume to be the Appellant's brother and not him) had to be sent abroad as a result of threats emanating from the father's activities, it was arguably incumbent on the Judge to consider the risk on this basis and to take into account Judge Maxwell's acceptance of the Appellant's father's account in so doing."

4. The Appellant attended the hearing. I heard submissions from both representatives following which I reserved my decision.

Submissions

5. Mr. Fripp relied on the grounds of appeal.

6. Ms Isherwood submitted that there was no material error of law in the decision. In relation to ground 3, the father's claim was different. The material facts of his claim had been accepted by the Respondent. I was referred to paragraph 11(iii) of the Appellant's father's decision. It had been accepted that the Appellant had been employed by the bank in Afghanistan. She submitted that the Appellant's claim was different to that of his father. The case of Ocampo [2006] EWCA Civ 1276, provided by Mr. Fripp in support of the grounds of appeal, concerned a case where the claims of family members were the same. She submitted that the father's decision did not go as far as the Appellant was claiming. Judge Maxwell had accepted that the father had been employed, and that he had children in the United Kingdom. Neither paragraphs 23 nor 27 of that decision went as far as Mr. Fripp was claiming. She submitted that the judge had taken into account the father's claim but the claims were different.

7. In relation to whether this would make a material difference, I was referred to paragraph 102 where the judge had found the Appellant's account to be vague and not plausible. The account of the letter from the Taliban had not been ignored - I was referred to paragraphs 98 and 99. The judge was entitled to take into account the fact that no letter had been provided and place weight on this. In paragraph 100 the judge had taken account of the inconsistencies in the Appellant's account. The judge had been entitled to dismiss the appeal.

8. In response Mr. Fripp stated that the father's asylum appeal had been considered by Judge Maxwell in August 2013. The Appellant's father had worked as an executive in Afghanistan and, in the course of his job, had refused to cooperate with the Taliban by taking militants into his own workplace. Judge Maxwell had found that the Appellant's father had lied in panic about the date on which he had started employment, but the remainder of his account had been accepted. I was referred to paragraph 11 of Judge Maxwell's decision. In paragraph 20 of the decision it was accepted that the Respondent had conceded that the account given by the Appellant's father was not inherently implausible. I was further referred to paragraphs 22, 23, 26 and 27 of the decision.

9. Subsequently the Appellant himself had claimed asylum. His account of his work at the bank had been rejected. It was accepted by Mr. Fripp that, following the refusal to grant permission to appeal on this ground, this matter had been resolved against the Appellant.

10. He submitted that the further basis of claim, the risk from the Taliban owing to his association with the bank, which in turn was associated with ISAF forces, meant that the Appellant was perceived as being on the side of the occupiers and opposed to the values of the Taliban. In this context I was referred to the threatening letter. He referred to paragraphs 98 to 102 of the decision which is where the reasoning regarding the threat from the Taliban was set out. In paragraphs 98 and 99 the judge had not indicated that he had accepted the father's account. The reasoning given by the judge for why the Taliban were not threatening was very slim.

11. The second point which was taken against the Appellant regarding the threat from the Taliban was the inconsistency in his evidence as to when the threat was received, 2010 or 2011. I was referred to the case law regarding screening interviews, in particular paragraph 19 of YL (Rely on SEF) China [2004] UKIAT 00145, set out at paragraph 11 of the grounds of appeal. The judge had not referred to this. Slight weight should have been given to this discrepancy given that the Appellant had attempted to correct it at his asylum interview. There was substantive background evidence that the Taliban went after people who were associated with the occupying forces, which is why the Appellant's father's case had been accepted as plausible.

12. The judge could not decide the issue of the Appellant's plausibility without deciding the weight to be attached to the positive findings in the Appellant's father's case, given that he was also associated with the occupying forces and that he faced a relevant risk as a result. There were significant common features between the Appellant's case and that of his father. There were related issues regarding the perception of the Appellant by the Taliban which had not been considered properly by the judge. The failure to consider the weight to be given to the Appellant's father's grant of asylum fundamentally undermined the viability of this part of the decision.

13. In summary he accepted that the part of the decision relating to the Appellant's employment at the bank stood, but the part of the decision relating to the threat from the Taliban could not be sustained. The judge had failed to look at the country evidence and had failed to apply Devaseelan.

Decision and Reasons

14. As accepted by Mr. Fripp, following the refusal of permission to appeal on ground 1, the findings in relation to the Appellant's activities at the bank are not the subject of this appeal. It was accepted that this part of the Appellant's case had been resolved against him.

15. In relation to the second basis of his claim, the threats from the Taliban, the judge sets out his findings from paragraphs 98 to 102. The entirety of the judge's findings and reasoning in relation to this issue are set out in five short paragraphs.

16. In paragraphs 98 and 99 the judge addresses the fact that the Appellant had not been able to produce the letter from the Taliban to which he referred at his screening interview. He states that no adequate explanation was provided as to why this letter would not have been in the Appellant's possession, or why his father would not have brought it to the United Kingdom in 2013.

17. In paragraphs 100 and 101 the judge finds that the Appellant's account was not consistent, as he had referred to the threats starting in 2010 at his screening interview and 2011 in his asylum interview. In paragraph 102 he finds that the Appellant's account of the Taliban's failed attempt to grab him was vague.

18. Nowhere in these five paragraphs does the judge take into account the Appellant's father and any risk from the Taliban due to that association. In paragraph 99 the judge states "I note that the father of the Appellant landed in the UK on 4.7.2013 and claimed asylum on 12.8.2013." This is the only reference in the findings to the Appellant's father. The only other reference to the father in the decision is where the judge recounts the submissions. In paragraph 77 it states "Reference was made to the judgment of FTT Judge J J Maxwell of 30.8.2013 in relation to the father of the Appellant. It was stated that it had been accepted that the Appellant's father was a businessman who had been at risk at the hands of the Taliban and that this supported the appeal of the Appellant."

19. In the judge's findings it states only that the Appellant's father claimed asylum. There is no acknowledgment that asylum was granted. There is no reference to the basis on which asylum was granted, or to the findings of Judge Maxwell. Given that the Appellant had stated in his asylum interview that he was at risk as a result of his father's activities, Q137, and given that the judge had recorded that this issue was raised in submissions, I find that this is an inadequate analysis of the connection between the father's situation and that of the Appellant. There is no reference to the Appellant's claim that he is at risk because of his father's activities, and no assessment of the risk to the Appellant as a result of these activities. There is no reference to the fact that the Appellant's father's account was held to be plausible both by the judge and by the Respondent. The reference in the findings to the Appellant's father not bringing a document to the United Kingdom is not enough to show that the judge has fully taken into account the father's activities.

20. Further, even though the judge rejected the Appellant's account of his activities at the bank, the fact that the Appellant worked at the bank was not rejected. In paragraph 93 the judge states "I accept that the Appellant held the position of a management trainee officer at the AIB in 2011". I find that this is a relevant consideration when assessing the threat from the Taliban which the judge has not taken into account in his findings from paragraphs 98 to 102. It is also relevant to the assessment of risk to the Appellant emanating from association with his father, given that the basis of this risk to the Appellant from the Taliban arises from his perceived support for the occupying forces, which is the same basis as the Appellant's father's claim for asylum. There is no assessment of the threat to the Appellant because of these associations.

21. I find that there is no adequate assessment of the father's situation and the risk to the Appellant because of this. I find that this failure to properly engage with this basis of the Appellant's claim is a material error of law.

22. Further, while the judge was entitled to place weight on the fact that the Taliban letter was not produced, this was not the only evidence of threats. The Appellant gave evidence of the threats, which the judge deals within paragraph 100 but finds that the Appellant's account has not been consistent. I have considered the records of the interviews. The Appellant repeatedly stated at his asylum interview that the threats started in 2011, not 2010. There is no reference in paragraphs 100 and 101 to any explanation given by the Appellant for the discrepancy. Neither has the judge taken into account the case law relating to the purpose of a screening interview when placing weight on the discrepancy. It is on the basis of this discrepancy alone that the judge rejects the account of the threats.

23. The judge finds in paragraph 102 that the account of the Taliban's failed attempt to grab him is "vague", but there is no reason given for this finding. There is no reference to the account, and why it is found to be vague.

24. I find that the decision involves the making of a material error of law in the judge's failure properly to analyse the risk to the Appellant from the Taliban, by failing to take into account the Appellant's relationship to his father, and his employment at the bank. He has failed to give adequate reasons for placing so much weight on the discrepancy in the dates, and has failed to give adequate reasons for his finding that the Appellant's account was vague.

Notice of Decision

25. The decision involves the making of a material error of law. I set the decision aside, except that the findings in relation to the Appellant's activities at the bank stand, paragraphs 92 to 97. This was accepted by Mr. Fripp at the hearing.

26. The appeal is remitted to the First-tier Tribunal for rehearing.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 28 October 2016

Deputy Upper Tribunal Judge Chamberlain