Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12700/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 22 September 2016
On 17 November 2016

Before

UPPER TRIBUNAL JUDGE PERKINS

Between

S--- A---
(ANONYMITY DIRECTION made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Bandegani, Counsel, instructed by Migrant Legal Action
For the Respondent: Mr J Whitwell, Home Office Presenting Officer
DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I make an order prohibiting the disclosure or publication of any matter likely to lead members of the public to identify the respondent. Breach of this order can be punished as a contempt of court. I make this order because this is a protection case and there is invariably a risk in cases of this kind that publicity will itself create a risk.
2. This is an appeal by a citizen of Afghanistan against the decision of the First-tier Tribunal dismissing his appeal against the decision of the Secretary of State refusing leave to remain on asylum and human rights grounds.
3. Permission to appeal was given by the First-tier Tribunal by First-tier Tribunal Judge Robertson on four of the five grounds argued but deliberately not on ground 1 which was a complaint that the decision was unreliable because the determination was promulgated more than three months after the hearing.
4. The appellant's solicitors were not satisfied with that ruling and correctly in accordance with their dissatisfaction, asked permission of the Upper Tribunal to argue that additional ground. It happened that the papers came before me and I gave permission in what I hope might be described as rather grudging terms. I say that because the point really adds little. We have certainly moved on from the days where a Determination was necessarily wrong because it had taken more than three months to be promulgated.
5. I do not accept that any fault is established on ground 1.
6. Similarly I am not impressed with ground 5, not because it is wrong but because I do not think it adds anything. It is a complaint that the Article 8 analysis was not done properly but the real problem is that it is a complaint about the factual basis of the Article 8 assessment and, as I indicated to Counsel, if he wins on that point he probably does not need ground 5 and if he loses on that point it probably does not add anything.
7. However grounds 2, 3 and 4 which I lump together although they are different, I find do identify clear errors of law. The first contention is that although it is accepted that it is clearly the case that established country guidance is the necessary starting point, it was the appellant's case that the situation in Afghanistan has deteriorated significantly since country guidance was promulgated and evidence was produced that it is, on the face of it, serious and credible, supporting the appellant's contention that whatever the Tribunal said in AK the current situation is now so different that the appeal should have been allowed.
8. I am very far from saying that that is right but the principle is perfectly clear. Country guidance ought to be right in the sense that it describes correctly the situation when the guidance was given but in the nature of things country conditions do not remain static. Sadly they often get worse and here the appellant was entitled to know whether the Tribunal took the view that the evidence about deteriorating country conditions is unbelievable, or whether it was believable but not evidence of sufficient deterioration to make a difference. This point has not just been answered in the determination and I find that makes the determination unsound.
9. The related point is that the appellant has produced evidence that he subjectively would find it particularly difficult to establish himself in Kabul. He complains of severe back ache. I do not minimise that because I know it can be a very disabling condition. The point has been addressed to some extent but other points have not been addressed, particularly the contention, supported by one K--- C--- a former foster mother, that his mental health is in a very poor state and he would find it particularly difficult to re-establish himself.
10. Mrs C---'s evidence does not have the advantage of coming from an expert with appropriate medical qualifications but it does appear to come from somebody in a position to have an informed commonsense view and a person who was telling the truth, albeit from the perspective of someone favourably disposed towards the appellant.
11. Again I do not know what the judge made of that evidence. He may have been of the view that Mrs C--- was unduly pessimistic. He may have been of the view that Mrs C--- was right but the appellant could still reasonable to expected to cope. I do not know and I ought to know and the Decision should tell me and it does not.
12. It is for those two reasons that I find that the Decision is unsatisfactory in law because two significant strands of evidence have not been explained away lawfully.
13. I accept that having found this error it is a case that needs to go back to the First-tier Tribunal because the decision that is defective goes to the root of the decision in the appeal. The appellant has not really had a fair hearing and the proper determination of these issues requires a considered analysis probably of quite a wide range of oral evidence and it is not work that is normally particularly suitable to be decided in the Upper Tribunal.
14. I make it plain that I set aside the determination in its entirety. At paragraph 23 of the decision the First-tier Tribunal finds that the appellant can have contact with his mother. That might be a perfectly correct decision but I intend that and all the rest to be set aside because the evidence to support that was not particularly strong and might be infected by the other points that I find have to be resolved.
15. The First-tier Tribunal Judge has given reasons for finding contrary arguments unreliable but there does not seem very clear evidence on the point to show that it is wrong and it is my intention that this is considered with all the other points when the case is re-determined. I do not intend to give any indication about how I think it should be resolved.
Notice of Decision
16. For all these reasons I set aside the decision and direct that the appeal be determined against in the First-tier Tribunal.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 15 November 2016