Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/01406/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 September 2016
On 03 October 2016

Before

UPPER TRIBUNAL JUDGE STOREY

Between

s H S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Heikkila, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND DIRECTIONS
1. The appellant is a national of Afghanistan. He was successful in being granted permission to appeal against the determination of First-tier Tribunal (FtT) Judge Lucas sent on 20 July 2016 dismissing his appeal on all grounds. The grounds of appeal contend that there were a number of flaws in the judge's adverse credibility findings. I do not propose to set these out in detail because I am satisfied that on any reading the judge's determination is vitiated by legal error. The identifiable errors include: a failure to address relevant background evidence concerning the nature of the Taliban's modus operandi and activities; a failure to reach a decision on the issue of whether the appellant could reasonably be expected to have informed the police and security authorities about the claimed attacks on his family; a failure when considering whether any reliance could be placed on the email from AGHCO to take into account that it was sent to confirm two earlier letters sent to AFHCO; and a failure to show that Tanveer Ahmed principles were actually applied (the wording of [54] appears on its face to mistakenly suggest that the documents were taken into account on the premise that the claim was wholly lacking in credibility).
2. I raised with Ms Heikkila whether the judge's errors could be said to be material given that the appellant's evidence was that he had returned from India to Kabul several times since he claimed to have come to the adverse attention of the Taliban in his home region of Jalalabad. She replied that it was the appellant's evidence that when he returned he had lived in hiding and that given the respondent's acceptance that he had worked for AGHCO it would only be a matter of time before the Taliban would identify and target him. Mr Tarlow said he did not agree.
3. Having considered the matter I have decided that the judge's errors were material in that had he accepted the appellant's account it was at least arguable that Kabul would not be a viable internal relocation alternative for him. Accordingly, I set aside the judge's decision.
4. Given that the principal reason why I have set aside the judge's decision concerns assessment of credibility, the case will need to go back on remittal to the FtT so the appellant's evidence can be considered afresh. My decision should not be taken to indicate that I consider the appellant has a strong case. As someone who chose on several occasions to return to Kabul, a city where he claims he would be at risk of being targeted by the Taliban, he may have great difficulty in establishing that the Taliban would target him there or that relocation to Kabul would be unreasonable. Nevertheless, he is entitled to a further hearing at which his claim can be assessed de novo. Any further evidence on which the appellant seeks to rely must be served in accordance with Tribunal directions on re-listing. The background materials should include the latest EASO Reports on Afghanistan.
5. For the above reasons I conclude that the judge materially erred in law and set aside his decision. The case is remitted to the FfT before a judge other than Judge Lucas.
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 Date: 30 September 2016

Dr H H Storey
Judge of the Upper Tribunal