Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00718/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 31 October 2016
On 7 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

[A J]
(anonymity directioN made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Dieu, Counsel, instructed by Legal Rights Partnership
For the Respondent: Miss Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal arising out of the decision of First-tier Tribunal Judge Troup promulgated on 8 August 2016. The appellant is an Afghan citizen born on 1 March 2001 who was an unaccompanied asylum-seeking child, and I renew the anonymity direction made in the First-tier Tribunal.

2. The appellant's immigration history was recited by the judge along with the law as it applies to asylum, humanitarian protection and human rights claims. In paragraphs 14 to 21 the judge recited the background to the appellant's claim, in paragraphs 22 to 24 summarised the respondent's reasons for refusal and in paragraphs 25 to 31 set out the oral evidence given by the appellant.

3. The judge's findings are to be found in paragraphs 32 to 41 including by cross-reference the submissions which made on behalf of the Secretary of State and the appellant.

4. The conclusions the judge came to based on the evidence and country material was that the asylum claim was not made out nor was the humanitarian protection claim, and the freestanding human rights appeal was similarly dismissed.

5. Permission to appeal was granted on three discrete bases. The first was the apparent lack of any credibility findings. The second was the failure to have regard to more up-to-date country guidance and background information and the third was a failure to make findings under Article 15 of the Qualification Directive.

6. Mr Dieu for the appellant abandoned the first ground because the judge had dealt with the matter taking the appellant's case at its highest and nonetheless rejecting it. Accordingly the absence of any express finding on credibility was not material to the outcome.

7. There was however more force in the second point concerning evidence seemingly overlooked by the judge. In paragraph 41 when the judge stated: "Although those volunteers may include the gullible and the brainwashed there is no evidence before me of forced recruitment".

8. The grounds of appeal drew attention to material which was before the judge which expressly addressed the issue of forced recruitment. In paragraph 40 the judge cites extensively from the Country of Origin Information Report for Afghanistan dated 15 February 2013 which incorporates sections of a 2012 report.

9. One item in the bundle of documentation which was before the judge (and which the judge expressly refers to in paragraph 35), is the United Nations High Commission for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Afghanistan dated April 2006 (page 11 to page 55 of the appellant's bundle).

10. Paragraph 3 of this document, under a subheading "Men of Fighting Age and Children in the Context of Under Age and Forced Recruitment" reads:

"Incidents of forced recruitment of children are said to be subject to widespread under-reporting. However the recruitment and use of children by all parties to the conflict both in support and combat roles is reported to be observed throughout the country."

11. The section continues over the page by indicating that anti-government elements (AGEs)

"are reported to continue to recruit children, both boys and girls, to carry out suicide attacks and as human shields as well as to participate in active combat to plant IEDs, to smuggle weapons and uniforms and to act as spies, guards or scouts for reconnaissance".

12. Mr Dieu referred me to other documentation which had been before the judge, the detail of which I need not rehearse. For the purpose of making good his submission on the second ground he needs go no further. It is plain that the judge wrongly stated that there was no evidence before him of forced recruitment. At the very least there was some evidence before him, and he did not deal with it.

13. Since the judge misrepresented the existence and extent of highly material evidence, this appeal must succeed and Miss Brocklesby-Weller, for the Respondent, properly concedes that this must be the case. This is a material error of law and the matter must be remitted and heard de novo by another judge of the First-tier Tribunal. Whether a full review of all the evidence will result in a different determination of the matter is entirely speculative.

14. Strictly speaking it is unnecessary for me to address the third ground upon which permission was granted although it was developed briefly by Mr Dieu before me. It relates to Article 15 of the Qualification Directive which is referred to in paragraph 35 but not addressed in the course of the decision nor are the fact-specific elements of this case considered within the context of the Directive. This is a further material error of law in the decision.

15. I cannot be satisfied that the judge gave anxious scrutiny to the issues before him, and it would be inappropriate to preserve any findings of fact. Another judge must consider, and assess the credibility of, all the evidence including up-to-date material concerning the situation in Afghanistan. For the purposes of this appeal, however, I need say no more on any of these matters.

Notice of Decision

The appeal is allowed.

The decision of the First-tier Tribunal is set aside and the matter is remitted to be decided afresh by a judge other than Judge Troup. No findings of fact are preserved.

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.

Signed Mark Hill Date 4 November 2016

Deputy Upper Tribunal Judge Hill QC