Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA 12763 2015

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Determination Promulgated
On 3rd August, 2016
On 8th August , 2016

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL
G A BLACK

Between

Mr SM
ANONYMITY ORDER MADE
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Karim (Counsel instructed by Simman solicitors)
For the Respondent: Mt T Melvin (Home Office Presenting Officer)

DECISION AND REASONS

1. The appellant in this matter is Mr SM. I shall refer to the parties as the "appellant" and the "Respondent". This is matter comes before me for consideration as to whether or not there is a material error of law in the decision the First-tier Tribunal (Judge Traynor)("FtT") promulgated on 17th June 2016 in which the appellant's asylum appeal was dismissed.

Background

2. The appellant is a citizen of Afghanistan and he was granted discretionary leave as an unaccompanied minor until 24.3.2015. He applied for asylum at the age of 13 years on the grounds that he was in fear of unknown persons who had abducted his father, who was a Commander under Hezb e Islami. His mother had given him the information about his father and made arrangements for him to live with his maternal uncle after his father's abduction. After some 4 months the appellant was approached in the town by two strangers who attempted to abduct him when he identified himself as his father's son. Thereafter his uncles paid for and arranged for him to be taken to the UK with agents. He feared that if returned to Kabul he would be detained by those who had abducted his father and /or recruited by the Taliban.

3. The appellant appealed against a decision made on 29.9.2015 refusing his application for asylum on the grounds that his account was not credible as it was vague in all respects and there were discrepancies in the accounts given at the first asylum interview and in a more recent interview.

4. The FtT found that the appellant's claim was lacking in credibility and was vague. The FtT found that the account given by the appellant was from his mother and that he knew nothing of his father's activities and that it was based on speculation. The evidence was speculative and unsubstantiated. The appellant had raised new matters in his recent interview with the Home office and that was discrepant with the account that he had given when first interviewed. The FtT concluded that he had embellished his account and it was fabricated .

5. In grounds of application for permission the appellant argued in paragraphs 2 - 5 that the FtT failed to provide adequate reason for finding that the appellant's account was not credible and had made generic findings. The FtT failed to give the benefit of the doubt to the appellant who was a minor and that the account given by a minor may not be reliable. The FtT erred in rejecting the evidence about the Red Cross and insufficient reasons were given. The FtT failed to consider paragraph 276ADE(1)(vi). Further grounds were raised in respect of the Article 8 assessment in paragraphs 6-8.

6. Permission was granted on the grounds set out in paras 2- 5 only. The grounds in paragraphs 6-8 were simply a quarrel as to the FtT's assessment of proportionality. The FtT was arguably deficient in its reasoning as to whether or not it found the claim to be based on his mother's narrative [35] and thereby speculative or fabricated solely for the asylum claim [36]. Such a distinction may have been material given the appellant's youth.

7. A Rule 24 response produced by the respondent opposed the application .

Submisssions

8. Mr Karim argued that the FtT findings were inadequate as it failed to engage with the fact that the appellant had been given information by his mother. He had provided extensive information in his three witness statements and so his account could not be vague. The appellant had stated that he had some learning difficulties which the FtT did not consider. The consideration of Article 8 and paragraph 276 was scant.

9. Mr Melvin relied on the Rule 24 response. The FtT gave adequate reasons for rejecting the claim. There was no medical evidence before the FtT. There was limited information before the FtT and it had considered all of the evidence in the round. The findings that the account was vague was open to the FtT on the evidence .

Discussion and conclusion

10. At the end of the hearing I reserved my decision which I now give with my reasons. I find no material error of law in the decision which shall stand. The FtT decision was detailed and fully reasoned. The FtT did not find the account to be credible nor plausible and placed weight on the additional information given by the appellant at a later interview. This information was not consistent with the account given by the appellant when first interviewed [41, 42, 43]. The argument that the FtT failed to decide whether the account given by the appellant was based on what his mother had told him was not material. The FtT found that the evidence of his father's abduction, the attempt to abduct him and the claim that his father was a Commander to be lacking in credibility. Further the FtT concluded that there was insufficient evidence to support the appellant's claim that he would be identified on return. There was no evidence to show how the abductors would identify the appellant if returned to Afghanistan or specifically to Kabul. The appellant had not provided any additional evidence to show that his father was a Commander. I am satisfied that the FtT considered all of the evidence in the round including the two accounts given by the appellant in interview and his 3 witness statments. It was open to the FtT to conclude that he had embellished his account and that there were discrepancies. The apparent failure to distinguish as between a speculative account based on information from his mother that was a truthful recollection and that the account was fabricated for the purpose of claiming asylum, is insufficient in the light of the decision taken as a whole. The determination is sustainable on the evidence that was before the FtT. It was open to the FtT to place weight on the material inconsistencies in the later interview in assessing the account given in the first instance [47].

11. The FtT finding on the evidence about contact with the Red Cross are sustainable and reasoned. I find no material error in law in that regard.

12. In terms of paragraph 276 ADE whilst not specifically addressing that provision I am satisfied that the FtT considered all the relevant evidence under Article 8 at [54] and which included consideration of any difficulty in returning to Afghanistan in particular to Kabul which the FtT found to be a claim unsupported by any evidence.

Decision

13. There is no material error of law disclosed in the decision which shall stand.

Signed Date 5.8.2016

GA Black
Deputy Judge of the Upper Tribunal

ANONYMITY ORDER made
NO FEE AWARD as the appeal was dismissed.

Signed Date 5.8.2016

GA Black
Deputy Judge of the Upper Tribunal