Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal Number: AA/13244/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons promulgated
on 13 February 2017
on 15 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MA
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Draycott instructed by Paragon law
For the Respondent: Mr Bates - Senior Home Office Presenting Officer

DECISON AND REASONS

1. On the 3 August 2016 First-tier Tribunal Judge J Pacey ('the Judge') dismissed the appellant's appeal on asylum and humanitarian protection grounds but allowed it on human rights grounds.
2. Permission to appeal was granted to the Secretary of State to challenge the Article 8 decision and, on a cross-appeal, to the appellant to challenge the rejection of his protection claim.

Background

3. MA is a national of Afghanistan born on 15 October 1993. The Judge noted the content of an earlier determination and applied the Devaseelan principles to the assessment of risk.
4. At [32] the Judge finds:

"I state at the outset that there is no issue as to the appellant's credibility and hence no dispute as to the individual factual elements of his claim. The issue is whether he could safely relocate to Kabul."

5. The finding that the issue was one of internal relocation must indicate a clear acceptance in the mind of the Judge that the appellant faced a real risk of serious harm sufficient to engage an entitlement to international protection in his home area. It was not disputed that his home area was close to Kabul and it was submitted that proximity to Kabul meant he would not be safe from those whom he feared in his home area, Jamait-I-Isamali, as they would be able to locate him and kill him as it was accepted they had done with other family members, if he located to Kabul.
6. When considering internal relocation, the key question is whether the same is reasonable. There is often a reference to whether relocation is "unduly harsh" but the correct test is that of reasonableness. The Judge had before her three reports written by Dr Giustozzi, and accepted country expert, who stated that those he feared had targeted the appellant's family will be well-positioned to pursue him in Kabul.
7. The Judge was therefore required to determine the specific question of whether the risk that had been identified in the appellant's home area would effectively follow him if he relocated to the relatively short distance to Kabul city. Dr Giustozzi also refers to an element of Pashtu culture in that although it was said the killings of the appellant's family arose as a result of a blood feud, and that blood had been taken, the warlords he feared would seek to kill the appellant as they would be aware that the Pashtu Code demanded that he sought blood in revenge.
8. Although it is accepted that a person cannot found a claim to international protection based upon the fact they themselves may undertake activities that would breach Article 3 on return, it was an element of the appellant's case that even if he himself did not intend to avenge the death of his parents and other family members he will be killed by those who believe that he will be driven to take revenge against them.
9. Whilst the Judge correctly reminds herself that Devaseelan was a starting point, the Judge was required to consider the appellant's claim and to give adequate reasons for the findings made. Other than reference to a report dated 12 April 2014 by Dr Giustozzi there appears to be little reference or analysis of the evidence given by the country expert in full.
10. In relation to the reasonableness of internally relocating to Kabul, the appellant relied upon a psychiatric report which should have been considered as part of the assessment of the reasonableness of expecting the appellant to be able to survive within Kabul.
11. The possibility of the risk in the appellant's home area following him to Kabul also needed proper consideration in light of the fact that, in relation to the obtaining of accommodation, Dr Guistozzi refers to the fact that references will be taken in the appellant's home area, at which point to those there may be aware of his location. It was also submitted that the appellant would not be able to support himself economically on the basis of menial employment that the Judge had found he will be able to obtain in light of the reality of life and the economic situation within Kabul.
12. I find Mr Draycott has made out that the Judge has made a material error of law material to her decision to dismiss the protection claim on the basis that the Judge has (i) failed to properly determine the issue of risk of harm following the appellant to Kabul and (ii) failing to properly consider all the available evidence and/or make clear findings upon the same when considering the reasonableness of internal relocation.
13. The Secretary of State challenges the finding under Article 8 on the basis the Judge failed to consider whether the appellant met the requirements of the Immigration Rules, and specifically 276ADE, meaning that the proportionality assessment was fatally flawed. It is also argued that the Judge's finding that the appellant could relocate to Kabul and that it would not be unduly harsh for him to do so as part of the protection claim, should have been factored into the Article 8 assessment. Had the Judge done so she would have found that it would not be disproportionate to return. It is also submitted that the Judge failed to consider that the private life developed in the UK was at a time when the appellant's status was precarious, and that the Judge failed to properly carry out a balancing exercise factoring in the public interest against the appellant's individual rights.
14. Mr Draycott sought to submit there was no arguable legal error in the Article 8 assessment by reference to the response to the appellants notice of appeal and authorities relied upon in the appellant's bundle.
15. In relation to Article 8, the Judge commences consideration of the human rights aspects of the claim at [48] with dismissing the appeal under articles 2 and 3 in line with the dismissal of the asylum claim. For the reasons stated above these elements will have to be reconsidered as they fell with the findings on the asylum claim, as did the humanitarian protection claim, which are infected by arguable legal error.
16. In relation to Article 8 ECHR the Judge, at [49], accepts the appellant has established a private life in United Kingdom based on his education and social connections with his friends and with former foster parents and accepts that the decision will be an interference with his right to respect for his private life sufficient to engage Article 8 [50]. The Judge also seems to indicate that removal would prevent the appellant continuing with his English education and maintaining face-to-face contact with his friends. It is accepted the decision is in accordance with the law and necessary in the economic interests of the country which includes immigration control [51], leading the Judge to consider the issue of proportionality at [52 -60].
17. The Judge does not consider the merits of the private life under the Immigration Rules. It is not suggested the appellant was able to succeed under the relevant rule, 276 ADE. The relevant rule would be 276ADE (vi) as the appellant is 18 years or above and has lived continuously in the UK for less than 20 years. The appellant would, however, need to show that there would be "very significant obstacles to his integration into the country to which he would have to go if required to leave the UK." Although legal error has been found in the Judge's findings in relation to the protection claim, on the basis of those findings the Judge did not find that the appellant would face a real risk sufficient to engage the United Kingdom's obligations to provide any form of protection in the decision under challenge. The Judge refers to an ability of the appellant to continue an English education and maintaining face-to-face contact with his friends but makes no finding that very significant obstacles exist to his reintegrating into Afghan life.
18. Whilst, since the implementation of the Immigration Act 2014, the earlier ground of appeal that a decision is not in accordance with the immigration rules has been abolished, and the two grounds relevant to this claim would be a protection ground and breach of the human rights act, it is arguable that as part of the assessment of the human rights element there is a need to consider both parties' positions in sufficient detail.
19. The Immigration Rules set out the Secretary of State's view in relation to how the public interest should be assessed when considering an entitlement for leave to remain on the basis of family or private life. The omission by the Judge of any reference to the Rules arguably indicates that the Judge has failed to take into account a material aspect of the case, namely the Secretary of State's position, as submitted in the grounds.
20. This would not necessarily be an error if it was shown that the Judge had taken all the relevant matters into account and made findings within the ambit of Article 8 outside the Rules that showed such issues had been considered. The Judge goes on to consider Section 117 of the 2002 Act which sets out matters that she was required to consider when assessing an application by an individual for leave to remain on human rights grounds. The finding that the appellant could speak English, satisfying section 117B(2) is not a matter that gains the appellant any specific advantage as it is accepted in Upper Tribunal jurisprudence that this is a neutral factor, i.e. that it cannot be held against the appellant that he does not speak English, which is recognised as a bar to integration.
21. At [58] the Judge accepts that the appellant is not currently financially independent but that he has demonstrated an ability to do so in the future should he be allowed to stay in the UK. The Judge therefore finds that section 117B(3) should weigh in his favour. Two issues arise from that, the first being that there was no clear evidence that the appellant would become financially self-sufficient on the basis of his academic qualifications, indicating an element of speculation. The second point is that this is, again, an element which is neutral whereas the Judge appears to have found it to be a positive element in relation to the appellant's case.
22. The Judge is directed in section 117 to do more than purely apply the relevant subsections in isolation. Consideration of those specific issues forms part of the overall balancing assessment the Judge is required to consider. In this case there is merit in the submission made by Mr Bates that the Judge failed to properly carry out a balancing exercise factoring in the public interest against the individual rights. The Judge fails to correctly identify the nature of the public interest being relied upon and how that is displaced by a private life which does not appear to be particularly strong and was developed at a time the appellant remained in the United Kingdom on the basis of discretionary leave as an unaccompanied minor, following his illegal entry to the United Kingdom.
23. Despite his best efforts, I do not find that Mr Draycott has made out that the decision under Article 8 ECHR can be defended. I find that Mr Bates has made out his case that the findings are infected by fundamental legal error material to the decision to allow the appeal. This element must therefore, too, be set aside.

Discussion

24. Having indicated to the parties that the above was the view of the Upper Tribunal on the merits of the cross appeals, their opinion was canvassed in relation to the further conduct of this appeal.
25. In relation to the protection appeal it is clear that the Judge failed to deal with fundamental aspects of the appellant's case namely the question of whether the real risk identified in his home area will "follow him" to Kabul and the reasonableness of internal relocation to Kabul or, if applicable, any other part of Afghanistan.
26. In relation to human rights appeal the proportionality assessment has not been properly conducted such that there has been no consideration of the human rights aspect of the appeal in accordance with established jurisprudence and the law by the First-tier Tribunal.
27. It was accepted, in the interests of justice, that as extensive fact-finding is still required, and in accordance with the practice direction relating to the remission of appeals, that this matter should be remitted to the First-tier Tribunal sitting at Sheldon Court in Birmingham to be heard by a salaried judge of that tribunal, other than Judge J Pacey.
28. There are no preserved findings.

Decision

29. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remit to the appeal to the First-tier Tribunal sitting at Birmingham to be heard by a salaried judge of that tribunal nominated by the Resident Judge, in accordance with the operational requirements of that hearing centre.

Anonymity.

30. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 13th February 2017