Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/13027/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On Wednesday 21 December 2016
On 03 January 2017

Before
UPPER TRIBUNAL JUDGE SMITH

Between

MR J M
(ANONYMITY DIRECTION MADE)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr E Nicholson, Counsel instructed by Lawrence & Co solicitors
For the Respondent: Mr L Tarlow, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. It is appropriate to continue the order. 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.

DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge P-J S White promulgated on 27 September 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 22 October 2015 refusing his protection and human rights claims. The appeal against the Decision relates only to the protection grounds.

2. The Appellant is a national of Afghanistan. His age is disputed. He claims to have been born on 1 January 2001. The Respondent says that his date of birth is 1 January 1996 for reasons with which I deal below. He claimed asylum on 1 April 2015 having arrived in the back of a lorry on 10 March 2015. He had travelled via Hungary and that too is an aspect with which I deal further below.

3. The basis of the Appellant's claim is that his elder brother voluntarily joined the Taliban. His brother was killed fighting for the Taliban. He says that his father died suddenly some months after his brother's death. The Taliban then sought to recruit the Appellant to their ranks. His mother was unable to protect him from their advances and therefore made arrangements for him to leave the country with the assistance of an agent.

4. The Appellant accepts that he travelled via Hungary and that he was fingerprinted there. The Respondent relies on information from the Hungarian authorities who stated that the Appellant gave his date of birth as 1 January 1996. The Appellant says that he was not interviewed by the authorities and that the agent spoke on his behalf (and on behalf of the others in the group with whom he was travelling) and that it must have been the agent who gave the wrong date of birth as well as a different identity.

5. The Respondent accepted that the Appellant's claim was internally consistent in relation to his brother's involvement with the Taliban and the claim of attempts at forced recruitment. She also noted though that the background evidence suggested that, in general, the Taliban no longer used such methods to recruit. In any event, she did not accept the credibility of the Appellant's account due to what was said to be a false account as to his age because of the inconsistency between the information given to the Hungarian authorities and that given to the UK authorities.

6. The Respondent accepted that the Taliban had made gains in control of the Appellant's home area. She considered however that he could relocate to Kabul and that there would be a sufficiency of protection in that area.

7. In relation to the Appellant's age, he was assessed by Enfield Social Services on arrival as being over eighteen. That assessment was challenged and withdrawn. I was told by Mr Nicholson that a further assessment was carried out which also found the Appellant to be over eighteen. That too had been challenged and withdrawn. A further assessment was therefore still pending.

8. One final factual aspect is raised by the Appellant in his appeal against the Decision. That relates to the timing of the promulgation of the Decision. The hearing took place on 10 June 2016. The Decision was promulgated on 27 September 2016, over three months later. When granting permission to appeal, First-tier Tribunal Judge Parkes suggested that investigation needed to be made as to whether that delay stemmed from the submission of the Decision for promulgation or the promulgation following the submission of the Decision by the Judge. The computer records show that the Decision was received on 26 September 2016 and promulgated on the same day. What those records do not and cannot show is why there was a delay in the Decision being submitted. I deal with that in the discussion below.

9. Permission was granted by First-tier Tribunal Judge Parkes on 23 November 2016, mainly on the basis of the apparent delay in the preparation of the Decision. The permission grant was not however limited. The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

The grounds and submissions

10. The Appellant appeals on four grounds. Ground one relates to the delay in promulgation of the Decision. The Appellant relies in that regard on the case of SSHD v RK (Algeria) [2007] EWCA Civ 868, itself relying on the observations of Potter LJ in the case of Sambasivam v SSHD (2000) Imm AR 85. Mr Nicholson accepted in submissions that the Court of Appeal required there to be shown a nexus between the delay and the safety of the Decision (see in particular [23] of RK (Algeria).) He submitted however that where the Decision turned on credibility, there was no recitation in the Decision of the Appellant's evidence at the hearing and no substantial consideration of the documents and where the reasoning for rejecting credibility was limited, the sufficient nexus was shown.

11. Ground two concerns the Judge's approach to the Appellant's age. In submissions, Mr Nicholson dealt with this ground alongside grounds three and four. Ground three concerns the Judge's treatment of the evidence relating to what occurred in Hungary. Ground four challenges the Judge's failure to make any findings on the core of the Appellant's claim.

12. Dealing with the last point first, Mr Nicholson pointed out that, although the Judge summarises the core of the claim at [10] of the Decision, there is no subsequent finding made about whether the Appellant is to be believed as to what occurred in Afghanistan or what impact that would have on his ability to return save by reliance on his credibility as to his age. There is no substantive consideration of the report of Dr Guistozzi which lends support to the Appellant's claim. There is only brief reference to that report. The Judge at [29] of the Decision finds the Appellant's credibility as to his age to be determinative of the core of his claim. That in turn depends on what Mr Nicholson submitted was a flawed approach to the assessment of the Appellant's age and the evidence emanating from the Hungarian authorities.

13. In relation to the evidence of what occurred in Hungary, Mr Nicholson drew my attention to the Eurodac Search Result (RB/E1 and E2). He pointed out that, although the response of 23 April 2015 referred to an application for asylum and an asylum interview having been carried out, no further documents were produced from the Hungarian authorities. The caseworker's name is given on that document. However, the Respondent has not made enquiries of the Hungarian authorities for further documents or asked those authorities to respond to the Appellant's case that he was not himself interviewed and that all information had been provided by the agent. Mr Nicholson also referred me to the case of Ibrahimi v SSHD [2016] EWHC 2049 (Admin) and the failures of the Hungarian authorities properly to deal with asylum claims. He submitted that what was said in that case undermined the Judge's finding that the Appellant's claim not to have been personally interviewed was not plausible (although he accepted that the decision in Ibrahimi post-dates the hearing before Judge White). He referred in particular to what was said at [78] to [106] and [174] in Ibrahimi.

14. In relation to the Judge's consideration of the Appellant's age, Mr Nicholson referred me to [26] of the Decision where the Judge referred to the Appellant's physical appearance and mental demeanour. He submitted that the Judge's assessment was flawed by reliance on those factors. Mr Nicholson accepted that the Judge had little to go on when assessing age as reliance could not be placed on the Enfield age assessments. He submitted though that, in those circumstances, the reliance on what the Appellant is said to have told the Hungarian authorities gained more significance and, for reasons already stated, he submitted that reliance on that was flawed. He also pointed out that it was not clear why the Judge found that the Appellant was telling the truth to the Hungarian authorities but lying to the UK authorities. He pointed to what was said at [24] of the Decision which made little sense as a reason for that finding.

15. Mr Tarlow submitted that the crucial point was the claim which the Appellant made in Hungary and what he told the authorities there. He pointed to [22] to [24] of the Decision where the Judge set out the background to that claim and made findings which were open to him on the evidence. He accepted though that the last passage of [24] of the Decision was difficult to interpret and that appeared to contain the foundation for the finding that the Appellant was telling the truth to the Hungarian authorities but lying to the UK authorities about his age.

16. Mr Tarlow submitted that it was not speculative for the Judge to expect that there would be a formal process for claiming asylum in Hungary and such a process would involve an interview of the individual concerned rather than an agent on his behalf.

17. In relation to the core of the claim, Mr Tarlow submitted that there were findings albeit brief. He pointed to the paucity of substantive information about the claim and said that the Judge had done all he could on the evidence. In those circumstances, the findings made at [29] of the Decision were sufficient.

18. Mr Tarlow also submitted that a delay of three months was not sufficient reason for finding the Decision to be unsafe.

19. Following discussions, both parties agreed that, if I found an error of law, it would be appropriate to remit the appeal as all of the grounds turn, in essence, on insufficiency of findings on credibility.

Discussion and conclusions

20. Dealing first with ground one, I made clear to Mr Nicholson in the course of his submissions that I would not find for reasons of delay alone that there is an error of law in the Decision. Quite apart from there being no evidence of what occurred between the hearing and the promulgation of the Decision, including when the Decision was prepared or whether the Judge's notes were sufficient to enable him to make findings even after a passage of some months, it is not the case that a delay of three months is sufficient in and of itself to render a decision unsafe. I refer in particular to what is said by the Court of Appeal in RK (Algeria) at [23] as follows:-
"Miss Chan's brief is in effect to submit that, of itself, a delay of about six months until preparation of the decision, with or without the gross further delay thereafter, represents such a lamentable failure on the part of the system that the only fair reaction of an appellate court is to require the exercise to be undertaken again. When in the course of argument I suggested to her that, were her submission upheld, all judges and tribunal chairmen should, in cases in which their decisions were not fully prepared by the expiry of six months, cease work on them, she, in a way reasonably, qualified her submission. For the length of delay which would trigger the need for a rehearing under her suggested principle would of course depend upon the complexity of the decision. I also accept that the anxious scrutiny to be applied to immigration cases might make them more appropriate candidates for the sort of principle which she purports to enunciate. But, even as thus qualified, I cannot accept her principle. For she has failed to show, any nexus between the delay and the safety of the decision."
[my emphasis]

21. As a result, it is necessary to consider whether a sufficient nexus has been shown. I accept that this is a case which turns on credibility. This is a factor which may tend towards finding that the delay is such as to render the Decision unsafe if the Appellant could show that the Judge had failed to consider evidence or had misunderstood his case which might be explained by the passage of time before the decision was written. I also accept to some degree Mr Nicholson's submission that the Decision in this case is quite unusual for its lack of reference in a separate section to the evidence given at the hearing. There is, I accept, a lack of reference to what was said by the Appellant in examination in chief or under cross-examination. There is however a brief reference at [15] to [17] of the Decision to the procedure followed at the hearing. Furthermore, I do not understand the Appellant to criticise the summary of his claim at [10] of the Decision as being an accurate reflection. In essence, the other three grounds of appeal turn on a challenge to the findings which are made and the sufficiency of those findings. I do not accept that the Appellant has shown a sufficient nexus between the time taken for the Decision to be promulgated (just over three months) and the safety of that Decision. This ground of appeal is not made out.

22. I turn then to consider the other grounds of appeal. In relation to the Judge's approach to the Appellant's age, I note that the Judge had very little before him on which to assess age. His finding that the Appellant is not the age he claims is based on the following factors. Firstly, the Appellant's own evidence of how he knows his age. Secondly, the evidence from the Hungarian authorities that they were given a different date of birth for the Appellant. Thirdly, the Judge's view of the Appellant's physical appearance and demeanour.

23. The Judge expressly discounted any reliance on Enfield's age assessment ([18] of the Decision). He rejected the suggestion that, because Enfield was treating the Appellant as a child pending reassessment, this meant that Enfield accepted that he was a child ([19]). That finding was undoubtedly open to the Judge. It was similarly open to the Judge to find that he did not believe the Appellant's own account of how he knew his age for reasons stated at [20] to [21] of the Decision (as also considered further at [25]).

24. I do not accept that the Judge's approach to physical appearance and demeanour is flawed. The Judge, when considering those factors says this:-
"[27] I acknowledge that indications of this nature are very slight, and that physical appearance in particular may vary very widely, between persons of a given age, depending on both their heredity and their environment. They are not safe indicators of age on their own, and must be treated with a good deal of caution. In case such as the present, where I have almost nothing to go on, I do not think I can wholly ignore them."

That approach shows a limited reliance on factors which cannot be said to be irrelevant. It is frequently the case that social workers will take into account physical appearance and demeanour as part of a "Merton compliant" assessment. Provided those factors are not treated as determinative or given a significant weight, it is not an error of law for a Judge to take them into account. It cannot be suggested, based on the citation above, that the Judge has given those factors any significant weight. The Judge has also recognised the limitations in the evidence which those factors can provide.

25. That leaves then the Judge's reliance on what the Appellant is said to have told the Hungarian authorities about his age. In light of the significance which the Judge attaches to this factor, I set out in full the passage dealing with this:-
"[22] In saying that I bear in mind that in Hungary the appellant was undoubtedly fingerprinted, and a name and age were given for him. The name was Ahmad Nasir and the date of birth was 1st January 1996, which would have made him 18, nearly 19, at the time. The Eurodac report says that he claimed asylum in Hungary, but then disappeared. It also says that in his asylum interview he said he had no family members in any Member State.
[23] The appellant agrees that he was fingerprinted, but denies speaking to any Hungarian authorities. He said in his first witness statement that he and about 150 others were kept in a hall for about 15 days and then released, that the agent was with them and that the agent spoke to the authorities. In his asylum interview he gave a similar account, save that he said that they were in prison. He claimed to have told the agent his name and year of birth, and to be unaware of, and not responsible for, what the agent said to the authorities.
[24] I do not find this aspect of the account credible. The Hungarian authorities have recorded him as claiming asylum, and as having gone through at least a preliminary interview, of which some details are given. The appellant's account does not cover the provision of information about other family members, noted in the Eurodac report, nor indeed the conduct of any sort of formal interview, and I do not believe that the Hungarian authorities would simply have spoken to the agent in the absence of the person for whom he was apparently answering, but more importantly I do not accept that in recording an interview with an asylum seeker, one of a large group arrested, the authorities would have allowed one of the group to have acted as interpreter for the others, rather than engaging their own official interpreter for the purpose. The claiming of asylum, certainly within the European Union, is a formal and important process, governed by a number of minimum standards. Moreover, I do not understand why the agent should give a false date of birth - a false name may be easier to understand - particularly since he had apparently gone to the trouble of asking the appellant what his actual name and year of birth were, and since the date of birth he chose to give was out by a full 5 years, and might, as between a 13-year-old and an 18-year-old, have given rise to undesirable suspicion. I find that the only realistic explanation for the information recorded by the Hungarian authorities is that this was what the appellant told them, when given a preliminary interview, no doubt with the assistance of an interpreter, after he was arrested and claimed asylum."

26. As a result of what the Judge there finds, he relies on the "clear evidence that the Hungarian authorities were told in November 2014 that he was born in 1996 and was thus an adult". If the only criticism which could be made of the Judge's finding that the Appellant was personally interviewed was that this was not open to him based on Hungarian asylum procedures, I would find there to be no error of law. The Judge was entitled to take into account that Hungary is bound by the European directives as to processing of asylum claims. The failures in the Hungarian system noted by the High Court in Ibrahimi can have no bearing in circumstances where that decision was not referred to before the Judge. Nor can I see any other evidence in the bundle pointing to such deficiencies.

27. However, I find an error of law in relation to the Judge's approach to the evidence of what occurred in Hungary for the following reasons. The first is, as Mr Nicholson points out, that the evidence as to what happened in Hungary is extremely vague. Whilst I do not go so far as to suggest that the Respondent is bound to obtain the asylum interview notes from the Hungarian authorities (who may not release them), a request could be made of those authorities to check whether, in this case or more generally, an initial interview (which appears to have been a screening interview) might be conducted via an agent being used as an interpreter or as the leader of a particular group. At the very least, the evidence which the Respondent did provide as it stands could not be described as "clear" evidence, particularly when balanced against the Appellant's account of what occurred.

28. Secondly, there is the problem that, even if the Hungarian authorities were told that the Appellant was an adult at that time, this might not be the truth and the truth might be the evidence which the Appellant now gives that he is a child. I accept the point that the Judge makes at [25] of the Decision, that if the Appellant knew that he was a child and was interviewed by the Hungarian authorities, there would be little reason for him to say that he was an adult when he was in fact a child, particularly since his age was a central factor in his claim. What is less clear is what the position is if the person who gave that information was the agent or if the agent told the Appellant to give that date of birth or gave it as a translation whilst interpreting for the Appellant. That leads me on to one of the reasons given for not accepting the Appellant's account of the agent having provided the information in the final two sentences of [24] of the Decision. I am quite unable to understand the reasoning there given. What is there said is that the agent would have no reason for giving a different date of birth as a difference of five years might give rise to "undesirable suspicion". If what is meant by that is that the agent may wish to have avoided questioning about, for example, trafficking, if he appeared to be in charge of a group of minors, that would surely provide a very good reason why the agent might wish to make the Appellant appear older. There is a further complication about the Judge's finding that the Appellant told the Hungarian authorities the truth whilst lying to the UK authorities and that is the Judge's apparent finding that the Appellant does not actually know how old he is (see [28] of the Decision). If the Appellant does not know his age and the Judge does not accept that he knows it from his mother as he claims, it is difficult to see why the Judge would then rely on what the Appellant told the Hungarian authorities as being the truth.

29. Finally, I come to ground four and the Judge's consideration of the core of the Appellant's claim. Whilst I accept that the Judge was entitled to take into account when considering the truthfulness of what occurred in Afghanistan his findings as to the credibility of the Appellant's account of his age, the Judge was still required to consider the claim on its face. As Mr Nicholson submitted, there are certain key aspects of the Appellant's case which go to the question whether he would be at risk on return to Afghanistan. Those are whether his brother did join the Taliban and was killed fighting for them, whether the Taliban did seek to forcibly recruit him and, to a lesser extent, whether his father is in fact dead and is therefore unable to protect him. The Respondent also accepted that the Taliban were gaining control of the Appellant's home area. On that basis, the Judge was also bound to consider, even if the Appellant were not still a child, whether he could safely return to that area, whether he retains contact with family members in Afghanistan and whether it would be unduly harsh to require him to return to Kabul if he would not be safe generally in his home area.

30. I therefore find there to be an error of law on grounds three and four. Those in turn infect the findings in relation to credibility concerning the Appellant's age and ground two is therefore also made out. Since the appeal is based on the credibility findings, it is appropriate for the appeal to be remitted to the First-tier Tribunal for rehearing before a different Judge. No findings are preserved.
DECISION
I am satisfied that the Decision contains material errors of law. The decision of First-tier Tribunal Judge P-J S White promulgated on 27 September 2016 is set aside. The appeal is remitted to the First-tier Tribunal for re-hearing before a different Judge.
Signed Dated: 3 January 2017

Upper Tribunal Judge Smith