Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00319/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 28 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

master I K
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Bundock, Counsel instructed by J D Spicer Zeb Solicitors
For the Respondent: Mr S Staunton, Senior Home Office Presenting Officer

DECISION AND REASONS
Background
1. The appellant in this appeal is a minor from Afghanistan, born on 1 January 2004. His asylum claim was registered in the UK on 4 July 2015. The respondent, in a decision dated 29 December 2015, refused the appellant’s asylum claim and refused humanitarian/subsidiary protection. The appellant was granted discretionary leave to remain until 1 January 2018 owing to a lack of proper reception arrangements for the appellant to be returned to Afghanistan as a minor. The appellant appealed, in an “upgrade appeal”. The appeal came before Judge of the First-tier Tribunal Lingam on 11 August 2016. In a decision promulgated on 13 September 2016 the appellant’s appeal was dismissed on asylum, humanitarian protection and Article 15(c) grounds and under Articles 2 and 3 of the European Convention on Human Rights (ECHR) grounds.
2. The appellant appealed and permission to appeal was granted by the Upper Tribunal on the basis that the appellant’s submission that the judge had misapplied the Devaseelan principles was arguable. Permission was granted on all grounds.
3. Mr Bundock for the appellant relied on three grounds of appeal before me:
Ground 1 - that the judge had misapplied the Devaseelan principles;
Ground 2 - that the judge had made errors in relation to the appellant’s contact with his family in Afghanistan;
Ground 3 – that the judge’s findings were inadequate in relation to Article 15(c).
Error of Law Discussion
Ground 1
4. Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka [2002] UKIAT 00702 provides as follows:
“[37.] ... The first Adjudicator’s determination stands (unchallenged, or not successfully challenged) as an assessment of the claim the Appellant was then making, at the time of that determination. It is not binding on the second Adjudicator; but, on the other hand, the second Adjudicator is not hearing an appeal against it. As an assessment of the matters that were before the first Adjudicator it should simply be regarded as unquestioned. It may be built upon, and, as a result, the outcome of the hearing before the second Adjudicator may be quite different from what might have been expected from a reading of the first determination ...
[38.] The second Adjudicator must, however be careful to recognise that the issue before him is not the issue that was before the first Adjudicator. In particular, time has passed; and the situation at the time of the second Adjudicator’s determination may be shown to be different from that which obtained previously. Appellants may want to ask the second Adjudicator to consider arguments on issues that were not - or could not be - raised before the first Adjudicator; or evidence that was not - or could not have been - presented to the first Adjudicator.
[39.] ...
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
[40.] ...
(4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility ... It must also be borne in mind that the first Adjudicator’s determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage ...”
It was argued that the judge failed to properly apply the principles in Devaseelan and failed to consider the particular facts of this appellant’s case which was summarised briefly at [22] of the decision. It was submitted that the findings made by the judge focused almost entirely on the credibility of the appellant’s brother and at [52] the judge found that if his brother’s claim was not credible then neither was the appellant’s. It was submitted that this was an error and at no point had the judge stepped back and considered the appellant’s case and that this was fundamentally an error of law.
5. Mr Staunton submitted that at [31] of the Decision and Reasons the judge notes that the appellant’s account mentions only one incident that is supposed to have led him to leave his birth country. The judge found that he was willing to accept that the appellant, owing to his age, gave information on matters he had gained from those responsible for him. The judge went on to find:
“Even if so, the appellant’s claim of asylum is intrinsically linked with AK’s asylum claim because both of their claims allege that they are of interest to the Taliban and or the authorities because of their links with their elder brother who was a Taliban fighter. For that reason, I find the facts of AK’s background and claim are essential to understanding the appellant’s own claim.”
6. Mr Staunton submitted that at [45] the judge had set out the reasons why the First-tier Tribunal Judge had rejected AK's own claim in an appeal heard on 13 January 2012. At [46] Judge Lingam noted that the Immigration Judge considering the appellant’s brother’s (AK) claim concluded that he was an Afghan citizen who:
“may have attended a Madrassa; AK’s brother not a Taliban member nor killed; AK not wanted by authorities on account of his elder brother’s claimed link with Taliban; AK not of interest to the Taliban as a recruitee; that AK family remain in Afghanistan and would be able to provide him with care and support on return; that he failed to make out a well-founded fear of persecution for a Refugee Convention (sic).”
7. At [48] Judge Lingam noted that:
“AK or those representing IK prepared a generic witness statement, which I am satisfied, did not further AK’s ability to substantiate a credible asylum claim, which IK relies on as his own claim. As there is no cogent evidence to counter the first IJ's findings (para 20), I am satisfied that the findings of the first IJ stands as the starting point and if necessary, I can build upon it. For those reasons, I am satisfied I can rely on the reasons provided by the first IJ.”
8. The witness statement of the appellant before the First-tier Tribunal, dated 16 March 2016, asserted that his grounds of application were that he feared persecution for reasons of his imputed political opinion and membership of a social group. The appellant had asserted that he was told by his brother in law that the Taliban came to the house to look for him when he was not at home. The appellant went on at paragraphs 5 to 15 of his witness statement to address the Secretary of State’s reasons for refusal. At paragraph 10 of the witness statement the appellant stated that:
“... as my older brother was in the Taliban I believe that this was the reason they came for me. Although people joined the Taliban voluntarily, in practice many are also taken by force.”
At paragraph 11 of his witness statement the appellant went on to state that:
“... my brother-in-law and his family were not targets. I was wanted to join the Taliban. Had I remained with my family though I would have put them at risk.”
At paragraph 12 of his witness statement the appellant stated further that:
“... I wish to state that I believe that the Taliban will forcefully recruit me as my older brother was a member of the Taliban.”
The appellant then went on at paragraph 13:
“... I wish to state that the Taliban were going to try and recruit me and therefore my life was at risk.”
The appellant also made comments in relation to attending at the Red Cross in order to trace his family.
9. It was Mr Staunton’s his submission that both the appellant’s story and that of his brother AK stemmed from the claim that their older brother was in the Taliban. If that claim was undermined then it was open to the judge to follow that finding and it cannot be that one brother can be found credible in relation to that issue and the other not. It was submitted that the judge directed herself appropriately.
10. In reply Mr Bundock submitted that it was right that the two claims had the same origin in relation to the older brother, but that that was only one part of the appellant’s account and it was possible for there to be different parts of the appellant’s claim that will exist independently from that of his older brother AK. The Judge of the First-tier Tribunal had stated that he did not believe that the Taliban were targeting the appellant or trying to recruit him after the death of their older brother or the account of the journey to the UK. Mr Bundock submitted that it was only the first part which bears on the appellant’s claim. However, he stated that the fundamental error was that the judge did not grapple with the appellant’s own evidence.
11. I find the challenge to be misconceived and have considered the authority of Devaseelan together with subsequent decisions, including TK (Consideration of Prior Determination – Directions) Georgia [2004] UKIAT 00149 which confirms that where an appellant is relying on the same claimed risk as a family member whose appeal has already been determined, the approach of the Tribunal in Devaseelan, as to what matters can properly be relitigated, is of relevance.
12. As already noted, the judge at [31] of her Decision and Reasons, took into consideration that the appellant’s account mentioned only one incident that was supposed to have led him to leave Afghanistan and noted that his claim was intrinsically linked to that of his brother because they both claimed that they were of interest to the Taliban because of the links that their elder brother had as a Taliban fighter. It was also noted at the hearing and by the judge that the appellant relied on his brother’s claim, as set out by the judge including at [48].
13. The judge at [52] found that:
“... it stands to reason that IK’s central plank of claim – allegation of interest or threat of persecution for his imputed political opinion owing to his link with his elder brother – must be rejected in IK’s case for a lack of credibility.”
Although the judge might have been clearer, the judge was not saying that this was the only ground on which the appellant’s claim was rejected. The judge considered the merits of the appellant’s evidence. The judge noted at [53] that there was also a credibility issue in relation to family tracing which she returned to later in her decision. The judge also went on to separately consider the appellant’s claim at [54] where she found that she was:
“satisfied for those reasons that when IK’s journey out of Afghanistan was arranged in 2015, it was for a reason other than a Refugee Convention ground. I find therefore there was never any real risk to IK personally of forced recruitment by the Taliban or any interest shown by the authorities.”
What the judge was saying is that she had engaged with the appellant’s own account but that there were no facts identified happening since the first Adjudicator’s decision which would lead her to the conclusion that the appellant’s case was made out.
14. The judge further, at [62] of her Decision and Reasons, indicated that she had to consider the objective material as well as the arguments and found that:
“... the appellant has failed to make out his claim that his initial reason for fleeing his home area on account of interest by the Taliban or the authorities was credible for a Refugee Convention reason.”
The judge rejected the evidence of AK and IK at [56] where she found that they had:
“... not been entirely straight regarding their experiences in Afghanistan. Thus, I accept also that as nothing untoward had occurred to the appellant’s elder brothers, the evidence points to the likelihood that the position of IK’s family in Afghanistan must remain the same.”
15. The judge noted at [48] that the appellant relied on his brother’s claim as his own claim. The judge considered the core elements of the appellant’s claim but was required to do so against the background of his brother’s claim. The judge considered these elements at the date of the hearing and found that the appellant’s brother’s claim continued to lack credibility for the particular reasons given at [49] to [51]. This included a rejection of how it was claimed that the appellant had established contact with AK in the UK and a finding that AK was involved in the appellant’s planned journey out of Afghanistan on arrival in the UK. This was integral to her adverse credibility findings in relation to the appellant’s claim.
16. No material error of law was properly made out.
Ground 2
17. Mr Bundock relied on ground 2 of the original grant of permission to appeal. It was submitted that the Judge of the First-tier Tribunal had materially erred in reaching the conclusions she did (at [56]). It was argued that this was an extension to the judge’s incorrect application of Devaseelan and that the judge had closed her mind on credibility.
18. However, it is not the case that the judge based her negative findings in relation to contact solely on her general negative credibility findings or even that she viewed this issue through the prism of those negative credibility findings. The judge found separately as already indicated, at [53] that there was a credibility issue in relation to family tracing. At [55] the judge found that on tracing she was satisfied that AK's evidence cannot be credible based on IK’s evidence which confirms that he remained with his sister in the same area until he left Afghanistan in 2015. This is a stand alone point which the judge considered in the round and which is not connected to her negative credibility findings in relation to AK and her application of Devaseelan. The judge went on to consider at [55] that AK had good knowledge of where his sister lives because he was able to make his way from his parents’ home to his sister’s place after leaving the Madrassa and had remained so for three months. Therefore, his claim that he could not locate his family following his entry to the UK was both suspect and not credible.
19. There is no merit in the appellant’s grounds which are merely a disagreement with the judge’s clear and coherent and well-reasoned findings. Although not specifically pursued before me I also reject the appellant’s argument in his original grounds in relation to the alleged lack of findings as to whether his mother was alive. There had been a clear inconsistency in the appellant’s evidence. The judge found that the appellant and his brother had been in contact with family members throughout and it has not been established that this was irrational. It is also not properly arguable that the judge did not take into account the appellant’s age in considering the evidence before her, the judge having properly directed and reminded herself, concluding at [26], [27], [29] and [31] of her Decision and Reasons.
20. Although Mr Bundock attempted to introduce new grounds of appeal before me I am not satisfied that Mr Bundock has established that these grounds were obvious or a manifest point that falls under Robinson obvious grounds or that he established there were exceptional circumstances (albeit that there must be an element of elasticity within such a concept) which would merit an enlargement of the grounds on which permission were sought at this stage (HS (Afghanistan) [2009] EWCA Civ 771 and DK (Serbia) [2001] WLR 1246) applied.
21. Mr Bundock’s new grounds, essentially that the judge had failed to take into account all the evidence or made findings without evidence in relation to Red Cross tracing, at [55] and [62] of her decision and had reversed the burden of proof at [62], were not properly before me.
22. Even if they were, I am not satisfied that the appellant established that any material error of law was made out. The judge gave careful reasonings for the findings she reached that were properly open to her, including that there was no good reason why the Red Cross was unable to locate the appellant’s family unless incorrect information had been provided to them. This finding was not made in isolation but was considered in the round, including that it was reasonably likely that the appellant’s family was in contact with AK at all times and that AK's evidence that he had lost contact with his family members was not credible, especially as there was no evidence that the appellant had moved with his sister’s family after AK's departure from Afghanistan. The judge’s wording does not disclose that she has not correctly identified and applied the burden and standard of proof, including as set out by the judge at [21] of the Decision and Reasons. However, those grounds were not properly arguable in any event.

Ground 3
23. It was argued that the judge failed to provide adequate reasons in relation to the issue of humanitarian protection under Article 15(c) and the current escalation of violence in Afghanistan, with particular reference to the risk to children, or provide adequate reasons as to why she dismissed the appeal on those grounds. Mr Bundock submitted that there was no consideration of violence in the home area when the judge reached the findings she did that the appellant’s family could meet him in Kabul. He submitted it was also not entirely clear what the judge was doing at [65] where she found “For the purpose of the appeal, the respondent’s present intention is to remove the appellant in 2018 when he gains majority age.” The judge had to consider the appellant’s position at the date of the hearing as if he were to be removed as a 12 year old child. Mr Bundock submitted it was not clear that the judge was referring to matters at the date of decision and that the judge at [64] referred to both a “vulnerable minor or a young adult”.
24. It was not established that AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) was not still good law. The judge found that the evidence provided, which was referred to at [61] of the Decision and Reasons, was insufficient to result in a risk of harm to the appellant on return to Kabul, which was a finding open to the First-tier Tribunal. Although again Mr Bundock was attempting to introduce new grounds of appeal in suggesting that the judge had not properly considered the appellant as a minor, that is not what the judge has done; the relevant guidance, including ST (Child asylum seekers) Sri Lanka [2013] UKUT 00292 (IAC) such appeals are decided on the basis of a hypothetical return at the date of decision of the hearing. The judge throughout the Decision and Reasons considered the appellant as a minor, including references as I have noted at [64] to a vulnerable minor and references to the evidence in relation to grave security concerns, including for a vulnerable minor or a young adult. The fact that the judge then went on to find that the appellant would be met by his family members underscores the fact that she was considering the appellant as a minor. The fact that the judge also made reference to what is the reality of the circumstances for the appellant does not undermine her proper findings in relation to the position he would face on return to Afghanistan as a minor now.
25. No arguable error of law is disclosed.

Notice of Decision
26. The decision of the First-tier Tribunal does not disclose a material error of law and shall stand.
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 his 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.

Signed Date: 24 March 2017

Deputy Upper Tribunal Judge Hutchinson