Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00897/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 14 December 2016
On 16 January 2017

Before

UPPER TRIBUNAL JUDGE KEKI?

Between

I N
(anonymity order made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DETERMINATION AND REASONS

Representation
For the Appellant: Ms A Nizami, Counsel, instructed by Davjunnel Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

1. The appellant is a national of Afghanistan born on 1 January 2005. He has discretionary leave to remain as an unaccompanied minor until 15 July 2018. He appeals against the decision of 15 January 2016 refusing his asylum application and was granted permission against the determination of First-tier Tribunal Judge Fenoughty on 16 November 2016.

2. The appellant put forward several grounds which have been expanded upon today in submissions. It was argued:

that the judge did not meaningfully engage with the fact that the appellant was a child of 10 at the date of his asylum claim,
that she considered minor inconsistencies as a fundamental problem,
that she did not have regard to the correct approach to matters of plausibility involving minors,
that she relied on a discrepancy not raised by the respondent in the decision letter,
that she misdirected herself on the issue of forced recruitment by the Taliban,
that she failed to assess the risk to the appellant even if his father was a low ranking army official,
that she made no finding on whether the appellant's father had fled to Turkey,
that she irrationally concluded that he could return to his family in Afghanistan,
that she failed to consider the country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC).

3. Mr Armstrong responded. He submitted that as there was no oral evidence, the judge had to assess the credibility of the account on the basis of the witness statement and background material. She gave reasons for her findings, noting that the evidence was internally inconsistent and did not accord with the general information (at paragraphs 58 and 65). The Taliban had enough supporters and did not have to force people to join them, the appellant was not forced or threatened and it was not accepted that his father was a high ranking official. The appellant had family near Kabul. He had not provided details of his relatives to the Secretary of State so his family could not be traced. Country guidance was taken into account. The determination was well reasoned and all the evidence was considered.

4. Ms Nazami repeated her submission on forced recruitment and maintained there had been evidence before the judge about forced recruitment being a widespread problem. Whilst AA was referred to, there was no practical engagement with it.

5. Those were the submissions. At the conclusion of the hearing I reserved my determination which I now give.

6. Findings and conclusions

7. I have taken account of the helpful submissions made by the parties and all the evidence before me. The judge was well aware of the appellant's youth and took specific care when assessing the credibility of his account (see paragraph 55). She properly directed herself on the law (at 44-47 and 55-56) and had regard to section 55 of the 2009 Act and to Chapter 8 of the UNHCR guidelines on refugee children. There is no merit in the criticisms of her approach to the assessment of credibility. The inconsistencies identified by the judge arose from the witness statement prepared by the appellant for the hearing and so could not have been raised by the respondent in her decision letter. As the witness statement was prepared with the help of the appellant's representatives, it should have been plain to them that there were serious contradictions within it and it was for them to seek to resolve them. The judge cannot be criticised for having regard to the appellant's evidence. Nor can it be argued that they were minor matters as they go to the heart of the appellant's claim.

8. Much was made in submissions about the appellant's young age and the caution to be applied when assessing his account however the witness statement contains information and assertions well above what one may expect from a young child. The appellant is clearly a minor but with an ability to provide a full account, albeit discrepant. It was, therefore, open to the judge to assess his statement and to reach her own conclusions about it.

9. In paragraphs 59-60 the judge considered the background evidence and concluded that it did not accord with the appellant's account. Ms Nazami strove to rely on certain sections of the documentary evidence to argue that forced recruitment was widespread but other than a sentence in an article and a brief reference in an incomplete UNHCR report, there is little to confirm that this is a serious issue. There is evidence against it, as the judge highlighted, and, in any event, she found that the appellant's home was not in a Taliban controlled area and that neither he nor his father were ever approached by the Taliban. Those were findings open to her to make.

10. The claim of the appellant's father's position in the army was addressed at paragraphs 62-64 and contrary to what was argued before me, the judge did consider whether the father would be at risk as a low ranking official (at paragraph 70).

11. The judge was criticised for not making a specific finding as to whether or not the appellant's father was outside Afghanistan. That omission is immaterial as when finding that the appellant could return home or relocate to Kabul, she had regard to the fact that he still had close family there and that he had an adult male family member (his uncle).

12. The judge had regard to AA (at paragraph 12); whilst she is criticised for not "practically engaging" with the case, there is nothing to show that she erred in her conclusions on humanitarian protection (at 74-75). These are certainly not irrational as was argued by Ms Nazami.

13. It follows that I conclude that the judge's decision is sustainable and contains no errors of law. It shall stand.

14. Decision

15. The determination of the First-tier Tribunal does not contain errors of law. The appellant's appeal is dismissed.

Signed

Upper Tribunal Judge Keki?

Date: 20 December 2016