Tribunal decisions

The decision

IAC-CH-SA-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01131/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th January 2017
On 24th February 2017

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

a
(ANONYMITY DIRECTION made)

Respondent

Representation:

For the Appellant: Mr E Tufan, Senior Presenting Officer
For the Respondent: Mr D Sellwood, instructed on behalf of the Respondent

DECISION AND REASONS

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
1. 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. This direction applies both to the appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.
2. The Secretary of State, with permission appeals the decision of the First-tier Tribunal (Judge Coutts) who, in a determination promulgated on 30th November 2016 allowed his appeal on asylum and on human rights grounds against the decision of the Secretary of State made on 20th January 2016. Permission was granted to appeal by the First-tier Tribunal on 23rd December 2016.
3. Whilst this is the appeal of the Secretary of State I intend to refer to the parties as they were before the First-tier Tribunal.
4. The Appellant's history is set out within the determination of the First-tier Tribunal. The Appellant is a national of Afghanistan and is now 24 years of age. He left that country in or about August 2017 entering the United Kingdom illegally on 21st February 2008 when he was approximately 14 years of age. Following that, he made a claim to the Secretary of State for asylum and for leave on human rights grounds which was refused by the Secretary of State. However he was granted discretionary leave as an unaccompanied minor until 20th February 2010.
5. On 15th February 2010, the Appellant applied for further leave which was refused by the Secretary of State on 2nd March 2010. The Appellant appealed that decision and in a determination promulgated on 29th June 2010, the First-tier Tribunal dismissed his appeal on asylum and human rights grounds. Permission to appeal was refused and he was appeal rights exhausted on 24th November 2010.
6. The documentation demonstrates that thereafter proceedings were issued before the High Court for judicial review of the decision to remove him. Those proceedings were subsequently withdrawn by consent and the Appellant's further submissions to the Secretary of State on 13th August 2015 were thereby treated as a fresh claim for asylum with a right of appeal. In a decision letter of 20th January 2016 the Secretary of State refused his claim for asylum and leave on human rights grounds or in the alternative humanitarian protection. This led to an appeal before the First-tier Tribunal (Judge Coutts) in November 2016.
7. It is not necessary to set out the applications made before the High Court and the evidence relied upon in that respect as it is set out in the documentation. However it is right to observe that it was against the background of the further representations being made relating to the deteriorating security situation in Afghanistan, that no forced returns were taking place and a stay on removal had been granted in respect of a number of Afghan nationals (see the decision in R (Naziri) and Others v SSHD [2015] UKUT 437).
8. The factual basis of the Appellant's claim is that he grew up in the district of xx but did not attend school. He was accused of having sexual relations with the daughter of a neighbour who fell pregnant. As a result of that, her father had threatened to kill the Appellant believing him to have taken his daughter's honour. A meeting was held between the village elders and it was decided that both the Appellant and the girl concerned should be stoned to death as a punishment. The Appellant's father was given one day to present him for punishment but instead of doing so, the Appellant left Afghanistan with the help of his uncle. Following his departure from Afghanistan, he was informed that his father had been killed for failing to produce him. The basis therefore of the claim was that he would be at risk of harm on return to his home area as a result of an honour crime in the light of his conduct.
9. When the Appellant arrived in the United Kingdom he was approximately 14 years of age and was placed in the care of the local authority which continued until he was 21 years of age. Whilst his claim for asylum was refused, he was granted discretionary leave. When applying for further leave, that was refused in 2010 and the Appellant exercised his right of appeal before the First-tier Tribunal.
10. In the decision of the First-tier Tribunal promulgated on 29th June 2010, the judge considered the factual basis of his claim but did not find his claim to be credible noting at paragraph [22] that the "cumulative effect of the inconsistencies, contradictions and statements it contains is such as to cast serious doubt upon the reliability of the Appellant's evidence and the veracity of his case." At paragraphs [22] and [23] the judge set out his findings of fact namely that he did not accept that the Appellant's account was credible and that there was no real likelihood that he was wanted by individuals in his home area nor that his father was killed or that if he was it was for the reasons given [23(iii)]. The judge also found that whilst the Appellant claimed he had made attempts to find his mother and uncle through the Red Cross, there was no documentary evidence of that and consequently did not find that to be credible either. Thus he found that the Appellant would not be at risk of persecution or serious harm if he was to return to his home area and he found that there was a real likelihood that his parents remained in the home area.
11. As to internal relocation the judge's findings are set out at paragraph [24] and found that the Appellant could relocate as he had received some education in the UK (ii) and that relocating to Kabul might reduce the risk to the Appellant as he may not be detected by the authorities or the girl's family and that it would be reasonable for him to return notwithstanding any learning difficulties. The judge found that he was 18 years of age and was therefore a young adult.
12. The second hearing took place in November 2016 before Judge Coutts. He had the advantage of hearing the Appellant, and a witness called on his behalf Mr S (see paragraph [19]). The judge also had the advantage of new evidence that had not been put before the First-tier Tribunal including a large number of medical reports (including psychiatric evidence) from 2008-2016, evidence from the Red Cross and updated country materials including the UNHCR guidelines for Afghanistan.
13. Having considered the previous determination of the Tribunal in accordance with the principles of Devaseelan [2002] UKIAT 00702, the judge considered the findings of the first judge as the "starting point" but in view of the new material reached a contrary view to that of the first Tribunal, reaching the conclusion that the Appellant's account had been consistent, that his continued efforts to trace his mother with the Red Cross was further support for his claim, that he was a vulnerable witness having considered all of the medical evidence which also considered in detail the Appellant's past experiences in Afghanistan and the trauma experienced by him and concluded that his claim for protection was credible to the lower standard. The judge went on to consider internal relocation at paragraph [40] to [45] but reached the conclusion that in the light of his individual circumstances (including his mental health, his learning difficulties, his identified vulnerabilities, that he had no effective support mechanisms to return to Kabul and by consideration of his lack of trade or educational achievements and alongside the UNHCR eligibility guidelines) reached the conclusion that it would not be reasonable but would be unduly harsh to relocate. Thus he allowed the appeal on asylum and/or human rights grounds.
14. There is only one ground advanced on behalf of the Secretary of State relied upon by Mr Tufan. The grounds assert that the judge failed to apply the principles in the case of Devaseelan citing paragraphs [40] to [41] of that decision which reads as follows:-
"40. We now pass to matters that could have been before the first Adjudicator but were not.
(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. Or (although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute). 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. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts - for example country evidence may not suffer from the same concerns as the credibility, which should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tended to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at that time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex-hypothesi) now rather dated.
41. The final major category of cases where the Appellant claims that his removal would breach Article 3 for the same reason that he claimed to be a refugee.
(6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase "same evidence as that available to the Appellant at the time of the first determination." We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choice as about to how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if, for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion."
15. Thus it is submitted on behalf of the Secretary of State that paragraph 41 indicates that matters should be treated as settled by the first determination if the facts presented are not materially different before the second Adjudicator. As Mr Tufan submits and as echoed in the written grounds, the Appellant's claim to asylum remained unchanged from that which was before the First-tier Tribunal Judge.
16. Thus the issue is whether in fact the factual basis should be treated as settled by the first determination in the context of whether the facts presented were not materially different. To put it another way as Mr Sellwood has stated in his skeleton argument, where facts personal to the applicant that were not brought to the attention of the first Tribunal but relevant to the issues before him should be treated by the second judge with the greatest circumspection and where an Appellant in a later appeal, seeks to add to the facts to obtain a more favourable outcome, should be regarded with suspicion in respect of credibility but that credibility is not relevant where the existence of the additional facts are not in dispute (see skeleton argument paragraph 6).
17. Mr Sellwood who appears for the Appellant and indeed appeared before the First-tier Tribunal, submits that the judge did properly direct himself in law in accordance with the case of Devaseelan and that he accepted that the First-tier Tribunal decision was the starting point and then assessed the evidence. He further submits the decision of the Court of Appeal in Djebbar v SSHD [2004] EWCA Civ 804 and the principles from that case demonstrate that the Tribunal was not bound by the outcome in the first determination and was required to decide the appeal on its merits.
18. The decision in Djebbar (as cited) considered the application of the Devaseelan principles and the guidance given in that decision. At paragraph [28], the Court of Appeal made it plain that the second application is a fresh application requiring proper consideration on the merits approaching the issue contemporaneously and that whilst it was a fresh application, a second or subsequent application is not and is not deemed to be a first application, and is not properly to be treated as if it were. The point is made that re-litigation of issues which have already been resolved is contrary to the public interest and that there is nothing in the process that suggests that the first application should or must be automatically be treated as irrelevant to the second application.
19. At paragraph [30] the Court of Appeal observed the most important feature of the guidance is that "the fundamental obligation of every special Adjudicator independently to decide each new application on its own individual merits was preserved." The decision also made it clear that the language of the guidance was not that of res judicata nor estoppel.
20. The Court of Appeal in that case then considered the guidance in Devaseelan and in particular the paragraphs relied upon by the Secretary of State in this appeal (namely paragraphs [4], [5] and [6]) and matters that could have been before the first Adjudicator but were not.
21. At paragraph [37] in relation to paragraphs [4], [5] and [7] the Court of Appeal considered the submissions made in the light of the guidance in Devaseelan and that guideline 5 may penalise an applicant involved in a second application for failing to produce evidence which could have been available at the first application but was not. The Court of Appeal stated as follows:-
"This is not how the guidance reads. This part of the guidance is intended to contrast the problematic issue of credibility (addressed in guideline 4) which may arise when an applicant has failed to give evidence of material known to or personal to himself and his own condition, and then seeks to add something about these matters in the course of a second application. The risk identified in guideline 4 is embellishment or fabrication. In short, its purpose is to give a warning in these broad terms: if the evidence is true, why was it not given at the first hearing? Even so, it does not automatically follow that the evidence must be untrue. The words 'not usually' expressly demonstrate that the guidance is not intended to impose a credibility finding on the second Adjudicator. It is however sensible to seek an explanation for the omission. Upon such explanation, referred to in guideline 7, may be the low quality of the representation before the first Adjudicator."
22. The decision also stated at [38] as follows:-
"38. By contrast with the 'great circumspection' which guideline 4 is concerned, guideline 5 merely suggests a degree of 'caution'. It is concerned with evidence for which the applicant personally is not the source. It may, for example be expert evidence. This guideline highlights the risk of over-reliance on evidence independent of the applicant which, even if accurate at the time when it was given at the first Adjudication, may have become out of date by the time of the second. This guidance is not concerned with and does not address the broad issue of credibility. It does no more than emphasise that the second application is indeed a fresh application, and that some evidence from the previous application - favourable to the applicant as well as unfavourable - may no longer be accurate. ?"
23. Therefore applying those guidelines, I am satisfied that the judge did properly direct himself in law. At paragraph [17], the judge expressly refers to the decision in Devaseelan and sets out that the findings made by the First-tier Tribunal in 2010 were his "starting point" and properly sets out the Secretary of State's case before him at paragraph [29]. However it was open to the judge in accordance with the decision of Devaseelan and Djebbar to consider the evidence that had been put before the Tribunal which was different to that which was considered by the previous Tribunal. The evidence comprised of country background materials but also a number of medical reports relating to the Appellant's mental health and other medical matters and also evidence from the Red Cross.
24. As to the evidence of the Red Cross, the previous Tribunal recorded that evidence at [23(iv)] and that in relation to his asylum claim that his father had been killed and that his mother had either moved or the Appellant had no idea where she had lived, the judge found "there is no real likelihood that the Appellant's mother ever left her home. Whilst at the hearing the Appellant claimed that he had made some attempt to find his mother and uncle through the Red Cross, there is no documentary evidence of contact with the Red Cross."
25. The relevant evidence relating to the Red Cross before the second Tribunal is set out in the correspondence and at pages 111 to 124. As Mr Sellwood submits, it both predates and postdates the first Tribunal decision. The evidence dates back from 4th November 2008 with the most recent evidence in 2016 in which the whereabouts of his mother remain unknown. This was evidence also supported by the witness Mr S.
26. Consequently the judge was entitled to take into account the evidence as he did at [39] when reaching a contrary view from the first Tribunal as to the Appellant's credibility. The inference from that evidence is that the Appellant's account of his father having been killed and his mother's whereabouts thereafter being unknown was reasonably likely to be true. The evidence could be relevant under paragraph [4] of Devaseelan and as such it was factual evidence that was beyond dispute and therefore should not be treated with circumspection. Or it could be considered under paragraph [5] or [7] of Devaseelan. As the case of Djebbar observed at [37] paragraph 5 of the guidance is intended to contrast the problematic issue of credibility (addressed in guideline 4) which may arise when an applicant has failed to give evidence of material known to or personal to himself and his own condition, and then seeks to add something about these matters in the course of the second application. The risk is identified in guideline 4 as "embellishment or fabrication". In respect of guideline 5, when considering that evidence it merely suggests a degree of "caution". However when considered in the context of this case, the Appellant did raise the issue that he had contacted the Red Cross as long ago as 2008 but that the judge did not believe his claim in the absence of any documentary evidence. Consequently the second Tribunal was entitled to take into account that evidence. As the decision in Djebbar makes plain, the guidance does not address the broad issue of credibility. It does no more than emphasise that the second application is indeed a fresh application and that some evidence from the previous application which could be favourable to the Appellant as well as unfavourable may no longer be accurate and that the judge is required to independently decide the subsequent appeal on its merits.
27. For similar reasons, the judge was also entitled to take into account the considerable body of medical evidence which was not before the First-tier Tribunal which entitled him to take a different view. The material consisted of a number of medical reports from 2008 onwards. It does not appear that those reports were before the First-tier Tribunal and there is reference to a diagnosis on 28th June 2010 prescribing the Appellant medication for his mental health difficulties and a diagnosis of a stress disorder. There is also further evidence in a report of March 2011 referring back to that evidence of 2010 and more recent reports in 2016 from Dr G.
28. The medical evidence was not before the First-tier Tribunal and the only evidence appears to have related to that of an educational psychologist (see paragraph 19) but none of that referred to the Appellant's psychological wellbeing or his mental health. Thus there was evidence (although not before the first hearing) which did put his evidence into context and in particular was relevant to his ability to remember details and his consistency and coherency.
29. The evidence of Dr G was accepted by the judge. Indeed it does not appear that any of the medical evidence was challenged by the Secretary of State before the second Tribunal. At page 69 that evidence made reference to the fact that the Appellant had experienced significant trauma in Afghanistan and also that he had begun to develop signs or symptoms of DSM-IV 300.02 generalised anxiety disorder at the start of his journey from Afghanistan to the UK (see page 78). Therefore demonstrating that it is reasonably likely that when he gave evidence in 2010 (as the medical evidence now attests) that he was suffering from significant problems relating to his mental health. The criteria for the DSM-IV is also set out in the papers and makes reference to that condition having the effect on an individual of diminishing their ability to think and to concentrate. As Mr Sellwood submits, this had to be taken into account when considering issues such as coherence and consistency. In the context of the findings of the first Tribunal, the judge having found him being inconsistent and his evidence being unreliable (see paragraph [22] and [23]). Consequently if the First-tier Tribunal had the evidence that was placed before the second judge, that evidence would have been taken into account in assessing his credibility.
30. Consequently the ground as advanced by the Secretary of State that the judge should have treated the facts as being settled because the material facts were not materially different from those before the first hearing, is not supported by the evidence that was in fact before the second judge.
31. As I have said the medical evidence was not challenged (see paragraph 31) nor has it been challenged in the written grounds. Indeed none of the evidence before the second Tribunal is challenged in the grounds. It was therefore open to the judge to consider the evidence and reach a different view on credibility that the First-tier Tribunal Judge did in 2010.
32. Thereafter it was open to the judge to consider the evidence in its totality (including the Red Cross evidence and the medical evidence) upon which he placed weight and reliance not only as to the current state of his mental health but also his diagnosis (see paragraph 17.7-17.14) and also the likely cause of his mental health difficulties, namely having experienced trauma in Afghanistan (see Dr G and the findings at [36], [37] and [39]).
33. As to the Red Cross evidence the judge considered this at [39] and that the Appellant's evidence as to this was consistent. It was open to the judge to find on the lower standard that he had demonstrated the factual basis of his account. It is right that the judge did not expressly identify what it was about the Appellant's oral evidence which was consistent before him but he had the opportunity to hear the oral evidence of the Appellant (see paragraph [19] and [20]) and plainly formed a favourable view of the Appellant's evidence.
34. Having found the Appellant could not return to his home area (see paragraph [40]) the judge was required to consider the issue of internal relocation which he did at paragraphs [41] to [45]. The grounds advanced by the Secretary of State do not raise any specific issues relating to the judge's consideration of the issue of internal relocation. The grounds wholly focus on whether he applied the principles in Devaseelan correctly and in particular that the judge should have treated matters as settled by the first determination because the facts were not materially different before the second judge. The whole basis of the grounds submit that his claim for asylum had remained unchanged from that which was before the first Tribunal. For the reasons I have given above I do not find that that ground is made out.
35. Mr Tufan however sought to argue by reliance on the country guidance decision of AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) that he could be returned to Kabul. However that decision made it plain that when assessing a claim in the context of Article 15(c) and internal relocation, the difficulties for the poor and the internally displaced will not in general make return to Kabul unsafe or unreasonable but that in every case there needs to be an enquiry as to the applicant's individual circumstances (see paragraph [243]). As the decision demonstrates the Appellant in AK had no specific risk characteristics and had an uncle in Kabul.
36. The judge considered the reasonableness of internal relocation by reference to the unchallenged medical evidence at [42], on the basis that he had no support mechanism [42], that he had no trade/educational achievements to rely upon [43] and suffered from learning difficulties. The judge in addition had before him the UNHCR guidelines which are referred to at paragraph [41] and an expert report at [43]. Consequently whilst the grounds advanced by the Secretary of State make no specific criticism of the judge's consideration of internal relocation basing its case on the Devaseelan principles, it was open to the judge to reach that conclusion on internal relocation.
37. The grounds do not demonstrate any error of law in the judge's determination and the decision of the First-tier Tribunal allowing the appeal shall stand.

Notice of Decision
38. The decision of the First-tier Tribunal (Judge Coutts) does not disclose the making of an error on a point of law. His decision allowing the appeal shall stand.

Signed Date

Upper Tribunal Judge Reeds