Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/39626/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 July 2016
On 05 September 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

MOHAMMAD SAFI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss K McCarthy, Counsel, Duncan Lewis & Co Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Afghanistan aged 21. He claims to have arrived illegally in the UK in 2008 when he was aged 13. He claimed asylum. On 3 March 2009 the respondent refused that application but granted him DL under its policy on unaccompanied minors. In March 2012 he applied for an extension of leave. This was refused in November 2012. His appeal was dismissed in May 2013. Following his arrest as an overstayer in December 2013 and February 2014 he made a full application for leave to remain on family and private life grounds. Both were refused, the latter on 19 September 2014. The appellant's appeal came before First-tier Tribunal Judge (FtJ) Traynor. In a decision dated 25 November 2015 FtT Judge Traynor dismissed his appeal on asylum, humanitarian protection, Article 3 ECHR and also under the Immigration Rules and Article 8.

2. The grounds of appeal were four in number. First it was argued that the judge had erred in departing from expert evidence without giving cogent reasons when considering "very significant obstacles "to reintegration under para 276ADE(vi). The grounds pointed out that the judge had before him two expert reports, one from Dr Giustozzi, the other from Mr Tim Foxley, both of whom had highlighted the difficulties on return of a single male without family support. Second the judge erred in speculating that the SSHD would give assistance to the appellant in Kabul. Third, it was submitted that he had irrationally rejected the medical evidence that the appellant was suffering from depression. Fourthly, the judge had mistakenly assumed that the appellant would be able on return to Kabul to fend for himself because he had "IT skills" and "technical skills", even though the appellant had not commenced studies in IT because of his health difficulties.

3. I should note at the outset that at the hearing before the First-tier Tribunal Judge there was an issue as to whether the appellant's case stood to be considered not just under the Immigration Rules para 276 in particular, but also on asylum and humanitarian protection grounds. The judge's conclusion was that as the appellant had made no attempt to put forward a fresh asylum claim based on fresh evidence he would adopt the findings of the previous Tribunal. The appellant has not sought to challenge this aspect of the judge's decision.

4. I am not persuaded that the grounds disclose a material error of law.

5. As regards the judge's treatment of the expert evidence it is first of all clear that he gave careful considerations to Dr Giustozzi's report, stating at [89] that:

"It is further contended that under the terms of Article 15(c) the appellant will be at risk of serious harm. Counsel on behalf of the appellant contends that, since the decision was reached in the previous appeal in 2013, events on the grounds in Afghanistan have changed in that the country is less secure and that there is now a great risk that the appellant will face serious harm because he is a particularly vulnerable young man. Once again, I do not agree with that submission or find that it carries any merit, notwithstanding the reliance upon the reports of both Dr Giustozzi and Tim Foxley. In the case of Dr Giustozzi, I accept his report provides illustrations for difficulties faced by young persons who have returned to Afghanistan. Nevertheless, little regard has been taken on the fact that when the appellant returns to that country it has to be in the context that neither the previous Tribunal nor myself accept that he no longer has the ability to contact his family. I entirely discount the submission of the appellant's representatives that the respondent is under any further obligation to attempt to trace the appellant's family. The appellant has produced a letter dated February 2015 from British Red Cross and as suggested t there is additional evidence to show that they have required further information from him and that he is now awaiting to hear from them. Despite the fact that some months have elapsed since the appellant produced that information to them, he has not provided any document from British Red Cross to update the position. Where the appellant was not found to be a credible claimant by the First-tier Tribunal, and where I will not interfere with those findings, then I must conclude that I cannot accept that he no longer has any knowledge of the whereabouts of his family or how he can contact them."

6. Miss McCarthy has submitted that the judge's assessment of Dr Giustozzi employed a false premise since the evidence did not establish that the appellant would have family support in Afghanistan. This submission suffers from a serious initial difficulty - it was not advanced in the grounds. it is also impossible to square with the judge's specific findings that the appellant had family in Afghanistan and an ability to contact them, a finding reaffirming that made by a previous Tribunal. Miss McCarthy has argued that because the appellant's family lived in his home area of Baghlan and the background evidence (including the report of Tim Foxley) demonstrated that people cannot travel in safety between there and Kabul, this finding does not establish that the appellant would have family support available to him in Kabul. However, given the extended family system prevalent in Afghanistan the judge was entitled to assume that he would have such support available and I note that neither of the country expert reports considered that this was not a real possibility.

7. In relation to the report of Tim Foxley, I would accept that the judge did not set out any distinct reasons for finding it of little relevance, but he was clearly aware of its content of the report and what it was said to prove by the appellants: see [76]. Further, as is clear from the quotations made from his report in the appellant's grounds the principal thrust of that report was that there was a real risk of serious harm on return to Kabul for single young men. Miss McCarthy has sought that argue that Tim Foxley's report also demonstrates risk on return to young men even if they have family support but it is quite clear that the evidence presented and marshalled in this report relates to young and vulnerable men with no family or social support. Accordingly, as is made clear in [89] cited earlier, the judge's stated reasons for finding Dr Giustozzi's report of limited relevance also applied to Tim Foxley's report and did not require distinct elaboration.

8. I do not agree with the grounds that the judge assumed that the appellant "will be returned to Afghanistan .. in circumstances where he will be given assistance by the United Kingdom authorities ". Far from being speculation that assessment was based on the country guidance provided by the Tribunal in AK (Afghanistan) [2012] UKUT 00163 and the appellant had not adduced any evidence to indicate that the Home Office had changed its practice of providing forced returnees to Afghanistan with returns and reintegration packages. In AK at [224] the UT made clear that the importance of such packages was not to be exaggerated but made clear nonetheless that as well as assisting with skills training and employment opportunities, they did position returnees from the UK advantageously compared to IDPs.

9. Although not identified as a separate ground Miss McCarthy sought to argue that one aspect of the judge's deficient treatment of the expert evidence was that he overlooked what was said in the reports about risks to returning young adults perceived to be Westernised, but since the expert evidence itself made clear this was only be in the context of return to rural areas, and would not apply in Afghanistan, I see no merit in this additional point either.

10. This is a convenient point to deal with the fourth ground which contends that the judge mistakenly assumed the appellant had IT skills. I would accept that he may have misunderstood the appellant's existing educational qualifications which do not include an IT qualification (only enrolment on an IT course). However, it is clear from the judge's decision read as a whole that he considered that by having successfully commenced living an independent life away from his foster family and in light of activities he had undertaken whilst living in the UK the appellant has acquired "linguistic and life skills as well as significant academic achievements and skills which will stand him in good stead." That assessment was based squarely on the appellant's own evidence as set out in [29].

11. Miss McCarthy contends, by reference to the third ground of appeal, that the judge's assessment of the appellant as an active and able young man with life skills wrongly disregarded the medical evidence according to which the appellant suffers from depression, sleeplessness, feeling lazy and hopeless and being made to keep appointments and to wake up. The appellant produced evidence that he had been seeing a counsellor and he also produced a letter from his G.P. I see no merit in this contention. The appellant has been asked a number of questions regarding the medical evidence, including by the judge: see [53]. Indeed, because at that stage the G.P. letter was not to hand, the judge agreed to accept it later. The judge considered the medical evidence, including the G.P. letter at [101].

12. From this paragraph it can be seen that the reasons given by the judge for concluding that the appellant was not psychologically vulnerable were well within the range of reasonable responses to the evidence. In particular, the judge was quite entitled to attach significant weight to the fact that it was only relatively recently that the appellant had decided to see a G.P. There is no reason to consider that the judge assessment did not take into account the evidence from the appellant himself and, from his support workers. It must also be said that the G.P letter did not confirm a clinical finding of depression; the G.P.'s language is limited to a description of the symptoms the appellant described to the G.P. and noted that the decision to prescribe the appellant Mirtazapine came about after a specific request made by the appellant for an antidepressant: see [37]. I also observe that on the appellant's account a significant cause of his anxieties was the uncertain nature of his immigration status and once the appeal process is completed so will that uncertainty.

Notice of Decision

13. For the above reasons I am satisfied that the judge's decision was legally sound and that accordingly it should stand.

14. No anonymity direction is made.

Signed Date: 2 September 2016

Dr H H Storey
Judge of the Upper Tribunal