Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/01768/2016
HU/03533/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th November 2016
On 30th December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE HANBURY

Between

Bebe [a]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Seelhoff, a solicitor
For the Respondent: Ms A Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

Introduction

1. This is an appeal by the appellant, who is aged 76 having been born on 1 January 1944. The appellant is a citizen of Afghanistan. She appeals against the decision of the First-tier Tribunal (FTT) to refuse her asylum appeal and not to allow her application for humanitarian protection. The First-tier Tribunal did, however, allow her appeal on grounds of Article 8 and under the Immigration Rules. As Mr Seelhoff has explained, there is no cross-appeal by the Secretary of State for the Home Department and the decision under Article 8/the Immigration Rules will stand whatever the outcome of the appeal against the decision on asylum /humanitarian protection grounds.

Background and overview

2. The background to this case is that the appellant's son, Hewad [A], was granted asylum because it was recognised that he worked for the US military as an interpreter. It seems that at the hearing before the First-tier Tribunal hearing on 3 August 2016 her other son, who is Mohammed Nabi [A], also gave evidence. Hewad [A] had been given refugee status. Furthermore, a concession had been made in the refusal letter that he did qualify for refugee status as it was accepted that he had worked for the US military as an interpreter. There was no application before the First-tier Tribunal to withdraw that concession and that is accepted by Ms Brocklesby-Weller. In the light of the concession that had been made, it seems to this Tribunal that it was open to the Immigration Judge to reject the claim by Hewad [A] that he was an interpreter for the US military and therefore entitled to humanitarian protection and/ or asylum in the UK. Hewad [A] has been in the UK since 2012 and the appellant has been in the UK since 2008 (see chronology at the front of the appellant's bundle). The Immigration Judge ought to have started from the position that not only was Hewad [A] a person who had worked in the US military but that he was not a person whose evidence the Immigration Judge ought to accept rather than reject (as he did in paragraph 79 of his decision). Both Hewad and Nabi, his brother, who also gave evidence to the Immigration Judge, were lawfully residing in the UK, the former because of the grant of refugee status and the latter by virtue of being a British citizen.

Basis for the present appeal

3. Permission to appeal the decision of Judge Buckland, promulgated on 15 August 2016, following the hearing on 3 August, was given in this case by Judge of the First-tier Tribunal Robertson on 3 October 2016. Judge Robertson identified the concession that I have already referred to and pointed out that, in the absence of a clear withdrawal of that concession, there was an arguable error of law in the decision of the FTT. Judge Robertson, pointed out that in absence of the withdrawal of the concession by the respondent's representative at the hearing the appellant's representative before the FTT the tribunal had been bound to accept the respondent's concession. In fact, the respondent had allowed the appeal to proceed and had not applied for an adjournment, but had proceeded as though the concession had not been made. The Immigration Judge appears to have been unclear as to why the appellant was in fact entitled to asylum or humanitarian protection in the UK given this misunderstanding of the background facts. In the absence of an application for an adjournment by the Secretary of State, the Immigration Judge should have assumed the facts were accepted. In fact, what happened was that there was, it seems, a great deal of evidence given at the hearing in relation to the authenticity of certain documents and the accuracy of the information which had been given. This went to the issue of whether the appellant's son had in fact worked for the US military. This evidence should not have been controversial in the light of the concession.

Conclusion - whether there was an error of law

4. I have concluded having heard oral argument by both sides that there was a material error of law in the decision of the First-tier Tribunal such that that decision in relation to asylum and humanitarian protection claims will need to be set aside. The Immigration Judge reached conclusions that were not open to him due, partly, to the fact that Mr Das Gupta, who appeared for the respondent in the FTT, treated several factual issues as being controversial when they had been conceded. In particular, the status and credibility of the appellant's son was treated as being in issue, when it ought not to have been. It was open to the respondent to apply to withdraw the concession but the representative, Mr Das Gupta, had not sought to do so. Mrs Brocklesby-Weller appeared to accept that because of the Immigration Judge's failure to recognise the limitations on the decision he had to make his decision to reject the appellant's claim on all bases other than article 8 of the ECHR could not be allowed to stand. I therefore set-aside the Immigration Judge's decision to dismiss the appellant's appeal on asylum grounds and to dismiss the humanitarian protection claim. There is no cross- appeal by the respondent against the decision to allow the appeal on the grounds that the appellant qualified under the Immigration Rules (with reference to her private life) or that in any event the appellant qualified by application of article 8 of the ECHR directly. Both parties agreed that it was appropriate for the Upper Tribunal to go on to re-make the decision and revisit the appellant's appeal against the respondent's refusal to allow her asylum or humanitarian protection claims. Tied up with those was the possibility that the respondent should have allowed her to remain because she would face inhuman or degrading treatment, contrary to article 3 of the ECHR, if, aged 76, she were returned to Afghanistan.

5. I will now re-make that decision having reconsidered the evidence that was presented before the First-tier Tribunal, of which I have a full note, taking full account of the submissions made before the UT. First, I will summarise the submissions made before the UT on the substantive merits before I turn to that evidence.

Merits of the asylum and humanitarian protection claims

6. It was argued on behalf of the appellant that, given her age, she would be vulnerable if returned to Afghanistan, a country which generates a large number of asylum seekers. Although the appellant had only been in the UK continuously since 2008 her visits to the UK pre-date that. She would find it very difficult to settle back into Afghanistan. Her son having been recognised as a refugee in 2014 had a close bond with his mother who lived with him. The asylum and humanitarian claims cross over into the article 8 claim. Her claim should be approached on the basis that if she were returned to Afghanistan she would be known to be a member of the family of an interpreter for the US military. It was also submitted that the appellant suffered from Alzheimer's disease and this would affect her ability to re-locate in Afghanistan. However, it was accepted that in practice the appellant would not be returning to Afghanistan as her appeal under the Rules/article 8 had been allowed and there was no cross-appeal.

7. Ms Brocklesby-Weller, maintained that the fact that the appellant's son had worked for the US military did not automatically qualify the appellant for refugee status or humanitarian protection in the UK. She maintained, but not particularly forcefully, that the appellant was not at risk on return. She stated that overall it was reasonable to expect the appellant to return to Afghanistan, although in practice this seemed unlikely. She particularly relied on paragraph 30 of the respondent's decision which identifies the lack of risk to the appellant in her local area. There was only a need to consider the possibility of internal relocation if the appellant was found to be at risk in her local area.

8. Having carefully considered the arguments for both sides it is necessary to consider whether the appellant qualifies as a refugee /person in need of international protection before looking at whether there is an internal relocation alternative available to the appellant to seeking international protection in the UK.

9. As the respondent pointed out in her refusal, the appellant does not have any profile and I find that the appellant has to go further than saying that she is a member of the family of a member of US military personnel. The appellant has not been in Afghanistan since 2008 and between 2006 and 2008 resided in the UK. There is no evidence she would be recognised by the Taliban or other insurgent groups within that country. Her son has been in the UK since 2012. The fact that the appellant felt safe to go to Kabul in 2008 suggests that she did not have any fear of the Taliban at that time. It seems that there are family members who can support the appellant if she went to live in Kabul and the appellant's age or poor state of health is not itself a reason why she would be targeted in Afghanistan because of her son's past work for the US military. The appellant has not established that there is a reasonable degree of likelihood that she would be identified as a member of a particular social group and be subject to persecution if she were returned to Afghanistan. There is insufficient evidence to suggest that the whole of Afghanistan is subject to such indiscriminate violence so as to place the country within article 15C of the Qualification Directive, although there may be some areas that cross that threshold. There would appear to be no risk of serious harm to the appellant. Even if there were such a risk in the appellant's home area, there are safe parts that she could go to, including a different part of Kabul where she would not be recognised. It is likely that the appellant would be given financial support available from her family, and could relocate if she feared being recognised in her home area of Kabul.

Notice of Decision

The appeal against the decision of the FTT by the appellant is allowed. That decision is set-aside. The Upper Tribunal re-makes that decision as follows:

The respondent's decision to refuse the appellant's asylum claim/ human rights claim on grounds other than article 8, and humanitarian protection claim in the UK is dismissed.

No anonymity direction is made.

Signed Date 30/12/2017

Deputy Upper Tribunal Judge Hanbury

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 30/12/2017

Deputy Upper Tribunal Judge Hanbury