PA/00162/2018

• Status of case: Unreported
• Hearing date: 3 Jan 2019
• Promulgation date: 6 Feb 2019
• Publication date: 6 Mar 2019
• Last updated on: 6 Mar 2019

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00162/2018


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 3rd January 2019
On 6th February 2019



Before

UPPER TRIBUNAL JUDGE KING TD


Between

Mr Bazqul [M]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent


Representation:
For the Appellant: Ms B Smith of Counsel, instructed by Leonard Cannings, Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer


DECISION AND REASONS

1. This is an appeal by Mr [M] to challenge the decision of the First-tier Tribunal Judge, Judge Lawrence, in dismissing his appeal for asylum which came before Judge Lawrence on 14th September 2018.

2. By way of background, the appellant is a national of Afghanistan. There is an issue as to whether he was born on 1st January 2000 or 2001 as he claims, nevertheless, he is a relatively young man in any event. He arrived in the United Kingdom in August 2015 and claimed asylum. The respondent, in the decision of 28th November 2017, refused that application and thus it was that an appeal before the First-tier Tribunal came into being, the date being 14th September 2018. The Judge in a very detailed determination found the appellant to lack credibility and found no reason at all why he could not safely return to Kabul.

3. The grounds are extremely long and seek to make a number of challenges some of which are, it seems to me, well-founded and others perhaps more nuanced as argument. Mr Melvin most fairly indicated that he was prepared to defend certain of the grounds but accepts that others perhaps, particularly the first ground, has some merit.

4. I am not going to go through all the grounds. It does not seem to be very helpful. The difficulty in relation to the way in which the case was presented is highlighted to some extent in the witness statement of Ms Anna Watterson, who represented him at the hearing on 14th September 2018. She is unable to attend this hearing in person because she has just given birth but in any event, I do not think there is any challenge to the way in which she puts her statement. She represented the appellant.

5. By way of background to that matter is that he suggested that he lost his mother, who was killed or died in Afghanistan shortly before 1st February 2018. For whatever reason, he was not notified of that fact either by his family members or by the foster carer. The hearing had been scheduled for 1st February. It was the view of Ms Watterson that it would be quite inappropriate not to raise that matter as an issue for hearing. However she considered that it would be unfair to the appellant for him to hear of that news at or shortly before that hearing and so an application for an adjournment was made and that was granted. It was the understanding of Counsel that in the intervening period he would be apprised of the death of his mother but when the hearing came to be listed on 14th September, it became apparent to Counsel that for whatever reason, he was not told until 13th September, the day before the hearing. Understandably, he was very upset as is apparent from the nature of the determination. As the Judge commented, it was surprising that in those circumstances there had not been a further request to adjourn in order for him to compose himself. The only adjournment that was sought was a short time for him to gather himself together, and so the context of the case, is of a relatively young man who was clearly very upset in the course of that evidence.

6. The starting point in this matter, it seems to me, is the way in which the Judge understood the evidence of the appellant. It is his case that he was kidnapped on the way to school by the Taliban. They were going to use him as a suicide bomber. They had briefly reunited him with his mother just as out of courtesy and she arranged for him to leave the country. He was asked about the matter in an interview which was conducted in fact in November 2017. It would seem that the Judge clearly has taken what was said somewhat out of context. The Judge thought that the import of what the appellant had to say in the interview was that he had been kidnapped and then remained in Afghanistan for two to three years after that, but actually that is not the context in which one looks at it. Question 44 was: "Why do you fear the Taliban?" "Because I was kidnapped by the Taliban." "Can you remember when this was?" "I remember that it happened before I left AFG." "Do you remember how long before?" "Approximately two to three years ago. Can you repeat the question?" "So after you were released, how long did it take before you left?" "I was kept with them for twenty to 35 days. After I was released back to my mother I left AFG." So, the answer really is that the appellant is replying to an interview in 2017 going back two to three years. The Judge took it to mean that, as I have said, that he was agreeing he had been in Afghanistan for two or three years and that clearly, when you look at the whole context, is not right.

7. This misunderstanding occupied many paragraphs of the Judge's determination as a major discrimination or a discrepancy, which clearly it was not. There was an issue as to how long he had been detained for and again, the Judge found that there was a material discrepancy in that matter. One of the grounds says, well, that is an unfair point to take because the appellant's foster carer also gave evidence, and was cross-examined, and this is at paragraph 17 of the grounds. She had listened to the tape of the interview and it had been fifteen to 25 days and that was confirmed. Complaint is made that that evidence was not even recorded in the determination.

8. On other matters, it seems to me, the Judge was very careful to analyse the evidence and particularly the evidence of the older brother, Mr Syed, as to the nature of the death of the mother and when it was supposed to have happened and how it was supposed to have happened, and there are comments perhaps which are open to the Judge to make as to the lack of death certificates, although again, the issue that is raised is whether Mr Syed said that no death certificates were issued or whether the background material indicated that they were only issued when requested. That again, it is a matter of some nuance as to whether the Judge got it entirely right or not.

9. Significantly, however, for the purposes perhaps of the appeal is that the brother, Mr Syed, returned to Kabul on two occasions and in recent years, yet it was noted by the Judge explicitly that a contact with Kabul had not previously been stated.

10. Looking at the matter overall, I do not find that there is any evidence that the Judge was biased or unfair in the approach taken, but clearly the determination is tainted by a fundamental misunderstanding of the facts upon which the appeal is based. It is a matter of fairness, that justice should be seen as well as given, and clearly the appellant was in no fit state really to attend to the minutiae of questions at that hearing.

11. So, for those reasons it seems to me, and I am very grateful to the Home Office representative for putting the matter as fairly as he has done, that the decision is beset with a number of real problems, as I said, both as to fairness and as to accuracy. Of course, one could perhaps strictly say, well, even if the appellant were entirely credible he could return to Kabul but I am also concerned that the Judge, although he cites a number of authorities, does little by way of fact-finding in relation to that.

12. For all those reasons, it seems to me that it is appropriate that I set aside the determination and direct, in accordance with the Senior President's Practice Direction, that the matter be sent back to the First-tier Tribunal for a de novo hearing. I am not going to preserve any of the findings. That would be to tie the hand of the Judge that hears the matter but, as I have said, there are nuggets of evidence within the determination, particularly the connection with Kabul, which may be material to the issue of the safety of return. That would be a matter for argument in due course. So, I thank both parties for their courtesy and their support.

Notice of Decision

The appeal before the Upper Tribunal is allowed to the extent that the decision of the First-tier tribunal is set aside to be remade by way of a de novo hearing.

No anonymity direction is made.


Signed Date 23 Jan 2019

Upper Tribunal Judge King TD