Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00213/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 10 January 2017
On 24 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

S I
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr I Richards, Senior Home Office Presenting Officer
For the Respondent: Mr J Dhanji instructed by Malik & Malik Solicitors

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the respondent. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.

Introduction
2. This is an appeal by the Secretary of State against a decision of Judge O'Rourke allowing the appeal of S I (hereafter "the claimant") on asylum grounds and under Art 8 of the ECHR. The judge found that the appellant would be at risk of persecution by the Taliban on return to Afghanistan as a result of her association with her father and returning as a sole woman. The judge also allowed her appeal under Art 8 of the ECHR.
3. Before the First-tier Tribunal, the claimant was one of eight appellants including her parents and five siblings. Their appeals were allowed on asylum grounds on the basis that their father was at real risk from the Taliban in his home area (close to Kabul) as a result of his previous work with the US and other NATO forces in his business supplying them with fuel. The judge also found that those appellants, given that their home area was very close to Kabul, could not safely relocate to Kabul itself as there was a real risk that they would be targeted there.
The Appeal
4. The Secretary of State sought permission to appeal the favourable decision in respect of the claimant on the basis that the judge had failed to give adequate reasons why she would return alone without her husband. Permission was granted by the First-tier Tribunal on 5 August 2016.
5. The Secretary of State has not appealed against the judge's decision to allow the appeals of the claimant's family members.
6. The Secretary of State's case is that the judge failed to take into account that the appellant's husband, although a naturalised British citizen, had travelled to Afghanistan in 2014 where he had married the claimant and had stayed there for three months. Consequently, the judge's finding that the claimant's husband because of his 'westernised' background would be unable to accompany her was unsustainable. Further, the judge's finding that there were 'insurmountable obstacles' under paragraph EX.1. of Appendix FM of the Rules was unsustainable as was, therefore, the judge's finding that the claimant's removal to Afghanistan would breach Art 8.
The Submissions
7. In his oral submissions, Mr Richards on behalf of the Secretary of State relied upon the ground upon which permission was granted. He submitted that the judge's reasoning was very brief and inadequate. He acknowledged, however, that the outcome of the Secretary of State's appeal depended upon whether the judge's finding was, in fact, inevitable.
8. Mr Dhanji, who represented the claimant accepted that the judge could perhaps have given more reasons. However, he pointed out that the claimant's husband had arrived in the UK in January 2001 when he was 12 years old. He had been granted exceptional leave to remain in 2001 and indefinite leave to remain in 2006. He became a British citizen by naturalisation in 2007. Mr Dhanji accepted that it might be reasonable for him to go back if he had been doing so regularly but that was not the case. He pointed out that the evidence before the judge was that the claimant's husband had returned in 2014 to marry the claimant and had stayed for three months but had barely left the house as he was scared.
9. Mr Dhanji submitted that it was properly open to the judge to find that the claimant would be returning as a lone woman and, indeed, the judge's decision was inevitable.
Discussion
10. It appears that the claimant's appeal was treated separately from those of her parents and siblings because she made a separate asylum claim whereas her mother and siblings' claims were dependent upon that of her father. As a consequence, the judge dealt with the claimant's appeal on a separate and free-standing claim.
11. It is not entirely clear to me why the judge did not accept that the claimant was at risk as a family member of her father. The judge's finding in favour of the claimant's family in that regard is not challenged. Part of the evidence, which the judge accepted, was that the threats made by the Taliban to the claimant's father were threats made to the family as a whole. In fact, the claimant's sibling was abducted in 2013 and was tortured and ultimately found dead having been shot.
12. On the face of it, the risk, if any, was to the family as a whole including the claimant and it is only perhaps, because of her age (namely she is 31 years old), that she made a separate asylum claim. In reaching his findings in respect of the claimant's family the judge appears to have accepted that the risk of being targeted by the Taliban was to the 'family' and not merely the claimant's father. At para 21(i)(e) the judge stated:
"I do not accept, in the context of personal targeting of him and his family that there is a sufficiency of protection available to them in that Country." (emphasis added)
13. At para 21(i)(f), in finding that relocation was 'not feasible' to Kabul the judge, again, noted the position of the family:
"I accept the appellant's submissions that his large family and previous commercial activities would draw undue attention to him, resulting in a real risk that they would be targeted." (emphasis added)
14. Those findings would and should, in my judgment, have led the judge to allow the claimant's appeal on the very same basis that he allowed the appeals of her family.
15. In fact, the judge adopted a different approach in para 21(ii) as follows:
"I find that while the risk of persecution of the Eight Appellant by the Taliban, by association with her father, may be less, as she is a sole individual who might draw less attention to herself, such risk, when combined with the risk to her of being an unaccompanied female in Afghanistan, renders her return unlawful. As the Respondent's current Operational Guidance Note states:
3.12.10 Women cannot currently rely on protection from the Afghan authorities and it would be unreasonable to expect lone women and female heads of households to relocate internally. Women with a male support network may be able to relocate internally. Case law has established that women in Afghanistan are a particular social group in terms of the Refugee Convention; therefore a grant of asylum will be appropriate to applicants in this category who are able to demonstrate a well-founded fear of persecution for reason of their gender.
I accept that as a UK citizen, with a 'westernised' background, her husband would be unable, for reasons of his own safety, to accompany her, constituting an 'insurmountable obstacle' under paragraph EX.1 of the Rules, or, in the alternative, be a disproportionate interference with their right to respect for family life under Article 8".
16. I accept, as both representatives acknowledge, that the judge's reasoning in this passage is brief. Also, in this passage the judge does not make specific reference to the fact that the claimant's husband had been in Afghanistan in 2007 in order to marry the claimant. However, the judge's determination must be read as a whole and, at para 17 of his determination, he sets out the claimant's case that her husband could not be expected to live in Afghanistan because he is 'westernised' and makes specific reference to his visit to Afghanistan to marry the claimant but that he had not felt safe and rarely went out. In the refusal letter relating to the claimant, the Secretary of State did not reject the claimant's asylum claim on the basis that she would be returning as a lone woman without her husband. Rather, at paragraph 98, the Secretary of State concludes that the claimant would be travelling with her 'family unit' to Afghanistan where as a result of that she could internally relocate with the family unit. The case before Judge O'Rourke appears to have been put by the Secretary of State on the sole basis that there was no real risk to the claimant's father or family as a whole. The distinction drawn by Judge O'Rourke between the claimant and other family members does not seem to have been one which was pursued before the judge as a relevant distinction at all.
17. In my judgment, the Secretary of State's appeal fails for a number of reasons.
18. First, as regards the claimant's asylum claim, given the way in which the case was argued before Judge O'Rourke in the light of his favourable decision in respect of the claimant's father and the other members of the family, the judge should have allowed the claimant's appeal on the basis of the real risk to the family as a whole.
19. Secondly, in any event, although the judge's reasoning is brief, it was inevitable, in my judgment, that the claimant's appeal would be allowed on the basis that her husband could not reasonably be expected to relocate to Afghanistan given his circumstances. He left Afghanistan at the age of 12. He has lived in the UK ever since and since 2007 has become a British citizen. He is now 28 years old. The claimant's husband gave evidence that he had, not unexpectedly given that he has lived for sixteen years in the UK since the age of 12, become 'westernised'. The judge accepted that evidence.
20. Taking all those factors into account, the only rational conclusion that could be reached is that it would not be reasonable to expect the claimant's husband to move to Afghanistan (despite his origins). He would be moving to an area where, on the judge's findings, the Taliban are active and there is the background of the family's problems with the Taliban including the killing of one of the claimant's siblings.
21. Consequently, I do not accept that the judge failed to consider all the circumstances although his reasons were brief. In Shizad (sufficiency of reason: set aside) [2013] UKUT 85 (IAC), the Upper Tribunal concluded that even if a decision contained an error of law because inadequate reasons were given, the Upper Tribunal would not normally set aside the decision where there had been no misdirection of law or other error unless the conclusions drawn by the judge were not reasonably open to him or her (see [10] per Blake J). In this case, I am satisfied that the judge's conclusion in respect of the claimant's asylum appeal was reasonably be open to him, indeed it was, in my judgment inevitable on the basis of the evidence.
22. For these reasons, the judge did not materially err in law in allowing the claimant's appeal on asylum grounds.
23. Technically, as a result, the judge should have dismissed the claimant's appeal on humanitarian protection grounds and I substitute a decision to that effect.
24. No separate submissions were made to me in relation to the judge's decision to allow the appeal under Art 8. His reasoning is very brief asserting 'insurmountable obstacles' under paragraph EX.1. of Appendix FM of the Rules to their family life continuing in Afghanistan and that there would be a disproportionate interference with respect to their family life. Strictly speaking, having found in the claimant's favour on asylum, the judge's finding in respect of Art 8 represented something of an unnecessary after thought. There is no separate consideration of the proportionality of the claimant's removal and, in those circumstances the judge's decision in respect of Art 8 is flawed and cannot stand. However, as I have upheld the judge's decision to allow the claimant's appeal on asylum grounds, it is unnecessary to make a separate decision in respect of Art 8.
Decision
25. For the above reasons, the judge did not materially err in law in allowing the claimant's appeal on asylum grounds. That decision stands.
26. I set aside the decision allowing the appeal on humanitarian protection grounds and substitute a decision dismissing the appeal on that ground.
27. The decision to allow the appeal under Art 8 is also set aside.

Signed

A Grubb
Judge of the Upper Tribunal