Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: da018682014

THE IMMIGRATION ACTS

Heard at the RCJ
Decision & Reasons Promulgated
On 13 June 2016
On 16 June 2016

Before

UPPER TRIBUNAL JUDGE BLUM

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FH
(anonymity direction MADE on 29 ocTober 2015 and continued)
Respondent

Representation:

For the Appellant: Mr I Jarvis, Senior Home Office Presenting Officer
For the Respondent: Mr A Mackenzie, Counsel, instructed by Migrant Legal Action

DECISION AND REASONS

1. This is an appeal by the Secretary of State for the Home Department (SSHD) against the decision of Judge of the First-tier Tribunal N J Osborne promulgated on 2 February 2016 allowing FH's asylum appeal against the SSHD's decision that FH does not fall within any of the exceptions from automatic deportation in section 33 of the UK Borders Act 2007. I will refer to FH as the 'claimant' in this decision.

2. The claimant is a national of Afghanistan, of Tajik ethnicity, born in April 1993. He came to the UK as an unaccompanied asylum-seeking child on 16 March 2007. His asylum claim was refused but he was granted discretionary leave to remain as an unaccompanied minor. This expired without the claimant seeking to extend his lawful residence.

3. In January 2011 the claimant was involved in a fight between Dari-speaking and Pashtu-speaking men in the UK. As a result a Pashtu man was killed and, in December 2011, the claimant was convicted at Maidstone Crown Court of manslaughter. He was sentenced to five years detention in a Young Offender Institution.

4. In January 2012 the claimant was notified that he was liable to deportation under the automatic deportation provisions of the UK Borders Act 2007. Representations made by the claimant were treated by the SSHD as a human rights claim. The claimant maintained that he would be at risk of serious ill-treatment amounting to persecution as a result of a blood feud arising from his killing of the Pashtun man. On 26 September 2014 the SSHD refused the claimant's claim for asylum and humanitarian protection and his claim under the ECHR, in particular Article 8. On that date the SSHD also made a decision that s.32(5) of the 2007 applied.

5. This decision was appealed to the First-tier Tribunal. In a decision promulgated on 12 June 2015 the First-tier Tribunal Judge dismissed the appeal on asylum and human rights grounds. The Judge found that the SSHD's certification under s.72 of the Nationality, Immigration and Asylum Act 2002 (that the claimant was convicted of a particularly serious crime and was a risk to the community) had been rebutted but went on to dismiss the appeal on asylum grounds. Nor was the Judge satisfied that the claimant's removal would breach Article 8 ECHR.

6. The claimant was granted permission to appeal to the Upper Tribunal and his appeal was heard by Upper Tribunal Judge Grubb on 20 October 2015. Judge Grubb found that the decision of the First-tier Tribunal involved the making of a material error of law in respect of the asylum claim. The dismissal by the First-tier Tribunal of the appeal on human rights grounds stood. The First-tier Tribunal Judge's decision in respect of s.72 of the Nationality, Immigration and Asylum Act 2002 also stood. The appeal was remitted to the First-tier Tribunal for consideration of the claimant's assertion that his deportation would breach the Refugee Convention.

7. The remitted hearing occurred at Newport on 13 January 2016. First-tier Tribunal Judge Osborne concluded that the claimant was a refugee as he held a well-founded fear of persecution on the basis of the blood feud, that the Afghan authorities would be unable to provide him with a sufficiency of protection, and that internal relocation was not a viable option. In reaching his conclusions the Judge placed reliance on an expert report commissioned from Dr Giustozzi and a Landinfo report used by the Norwegian immigration authorities.

8. The SSHD sought permission to appeal the decision of Judge Osborne. The initial grounds were lengthy and took issue, inter alia, with the applicability of s.72, the Judge's approach to Humanitarian Protection, and the Judge's assessment under Article 3 ECHR. Permission was refused by the First-tier Tribunal. The renewed grounds adopted the initial grounds (save with reference to the s.72 ground) and additionally submitted that the decision was devoid of any finding as to the position of the victims' family, and that the Judge failed to give adequate consideration to whether the claimant could internally relocate to a Tajik controlled area of northern Afghanistan. Permission to appeal was granted.

9. At the error of law hearing Mr Jarvis invited me to only consider the new grounds. Mr Jarvis accepted that a person in the claimant's position may be unable to provide information concerning the circumstances of his victim's family, and it was accepted that the Judge was entitled to the credibility findings he made. It was however submitted that the Judge gave insufficient reasons as to why the claimant could not relocate. In response Mr Mackenzie submitted that the Judge had been entitled to rely on the expert report prepared by Dr Giustozzi. This report concluded that the claimant would be unable to relocate as the Pashtun family to which his victim belonged would be capable either of pursuing the claimant throughout Afghanistan if possessed of the necessary resources, or they could hire a criminal gang to hunt and kill the claimant. According to the expert even a family of common wealth might be able to sell some property in order to gather the few thousand dollars necessary for commissioning the murder. Dr Giustozzi was said to be a highly regarded expert and the Judge was clearly entitled to attach weight to it.

10. I reserved my decision.

Discussion

11. I am grateful to Mr Jarvis for focusing his submissions solely on the renewed Grounds of Appeal. These could be split into two separate grounds. The first ground contends that the Judge failed to make any findings in respect of the position of the victim's family. There was no evidence and no findings in respect of their occupations, the number of family members, or the types of political connections they had. It was submitted that, without such findings, it was impossible to conclude that the victims' family were willing and capable of locating and harming the claimant.

12. In his rule 24 response Mr Mackenzie referred to the 'positive role of uncertainty' at play in asylum appeals (with reference to Karanakaran v SSHD [2000] 3 All ER 499 and KS (Benefit of the doubt) [2014] UKUT 00552 (IAC). Asylum appeals are, by their nature, speculative. A Judge has to necessarily speculate, on the basis of the factual matrix found by her and in the context of the background evidence, whether a particular person will be exposed to a real risk of serious ill-treatment if removed to their country of origin. The claimant did not have personal knowledge of his victim's family in Afghanistan and was unable to provide the type of information identified as being necessary in the renewed grounds. The First-tier Tribunal Judge had however found the claimant to be a credible witness (at [15]) and accepted that his ex-girlfriend had been threatened by Pashtu men who said they would hurt her as a result of the claimant's actions (at [18]). In the same paragraph the Judge accepted the claimant's evidence that Pashtu men had been asking after him and inquiring as to his release date. The claimant was informed that Pashtu men and the cousin of his victim would be looking for him. This suggests that the victim's family were clearly intent on locating and harming the claimant. There was therefore clear evidence before the Judge that the claimant had been specifically targeted by Pashtu men, including the cousin of his victim.

13. The Judge also took account of Dr Giustozzi's expert report and the Landinfo report, both of which stated that blood feuds were prevalent in Afghanistan, especially amongst Pashtuns, and there was therefore a real risk that the victim's family would be both willing and able to locate the claimant. According to Dr Giustozzi there was a social imperative in Pashtu culture for avenging relatives in whichever way possible. There was said to be no time limit to the validity of a feud.

14. In my judgement the Judge was fully entitled to conclude that the victim's family would abide by their cultural imperatives and seek out the claimant in Afghanistan. Although there was no specific evidence relating to the circumstances of the victim's family in Afghanistan it was apparent from the evidence that a member of the victim's family was in the UK and had, together with other men, sought out the claimant. There was therefore a real risk that the victim's family in Afghanistan received or would receive information about the claimant. Applying the lower standard of proof and having regard to the 'positive role of uncertainty' at play in this particular appeal, set against the expert country evidence, there was no requirement for the Judge to make specific findings in respect of the circumstances of the victim's family in order for him to legitimately conclude that the claimant would be at real risk of being targeted by the family or a criminal gang commissioned to carry out his murder.

15. The second renewed ground takes issue with the Judge's failure to consider whether the claimant could have internally relocated to a Tajik controlled area in the north of Afghanistan. There was said to be inadequate analysis as to how the Pashtu aggressors would be able to pursue the claimant, a Tajik, if he relocated to a Tajik controlled areas as the Tajik authorities would be unlikely to turn a blind eye or favour the aggressors.

16. This ground fails to take account of the Judge's consideration and acceptance of the expert report from Dr Giustozzi (at [22], [24] and [34]). Dr Giustozzi stated that the claimant could be relatively easily tracked down around Afghanistan by the family of his victim if they wanted to unless he was able to hide. The victim's family might also rely on a criminal gang to commission a murder. According to Dr Giustozzi even a family of common wealth might be able to sell some property in order to obtain the funds necessary for such a commission. Dr Giustozzi stated that there were plenty of criminal gangs in Afghanistan who could be contracted for hire. Moreover, as the claimant and his victim belonged to different ethnic groups there was no customary mechanism for negotiating a settlement to the blood feud. In his conclusions, and with reference to the report from Dr Giustozzi, the Judge found that the claimant could be easily tracked down in Kabul or elsewhere in Afghanistan either by the victim's family or by killers hired by the family, and that the internal relocation alternative was not available to the claimant.

17. The First-tier Tribunal Judge found there to be a real risk that the victim's family would commission a criminal gang to commit the murder and that the gang would be able to penetrate all parts of Afghanistan. The Judge was rationally entitled to rely on the expert's evidence and gave sustainable reasons for so relying (at [20]). There was no challenge in the First-tier Tribunal to such evidence (at [34]). In my judgement the Judge's acceptance of the assertions in the Giustozzi report entitled him to conclude that internal relocation to any part of Afghanistan was not an option reasonably open to the claimant. I therefore conclude that the Judge did not make an error of law in his assessment of the availability of the internal relocation alternative.

Notice of Decision

The First-tier Tribunal did not make any material error of law.
The decision of the First-tier Tribunal allowing the appeal stands.

15 June 2016
Signed Date

Upper Tribunal Judge Blum

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 their 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.

13 June 2016
Signed Date

Upper Tribunal Judge Blum