Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02002/2016

THE IMMIGRATION ACTS

Heard at : IAC Birmingham
Decision Promulgated
On : 4 April 2017
On : 7 April 2017

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

NA
(anonymity direction made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S Alban of Sultan Lloyd Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision of 17 February 2016 to refuse his protection and human rights claim.
2. The appellant is a citizen of Afghanistan, born on 2 February 2000. He arrived in the UK on 20 July 2015, having travelled through various countries after leaving Afghanistan and having claimed asylum in Hungary. He claimed asylum when encountered by the authorities on arrival in the UK. He was deemed a minor and served with illegal entry papers and was subsequently interviewed about his claim which was then refused on 17 February 2016.
3. The appellant appealed against that decision and his appeal was heard in the First-tier Tribunal on 16 September 2016 and was dismissed in a decision promulgated on 28 September 2016. Permission was granted to appeal to the Upper Tribunal on 26 October 2016.
4. The basis of the appellant’s claim is that he at risk of being forced to work with and fight for the Taliban if he returns to Afghanistan. He claims that his father was shot and killed when he was an infant. His mother told him that his father had had a security role working for the government of Dr Najeed Ullah. His two brothers had both been approached by the Taliban and had left Afghanistan. He received a letter from the Taliban and, when asked to raise his hand at the mosque to show support for Jihad, he did so because he was scared. They took his name. His mother then sent him to his uncle’s house and she told him the following day that they had come looking for him and had taken two other boys from the neighbourhood. His uncle arranged for him to leave the country with an agent. The Taliban had since sent a second letter to his mother asking where he was.
5. The respondent, in refusing the appellant’s claim, did not consider the appellant’s account of attempted forced recruitment to be consistent with the background material and considered that the letter he had produced allegedly from the Taliban was not a reliable document. It was not accepted that he would be at risk on return. It was noted that contact had been made with the appellant’s mother and it was not accepted that his family would be unable to assist with return to Afghanistan.
6. The appellant’s appeal against that decision was heard by First-tier Tribunal Judge Heatherington. The judge considered that the appellant did not come from an area in which the Taliban exercised control. He found the appellant to be an unimpressive and unreliable witness and noted inconsistencies in his evidence as to when he left Afghanistan. He did not believe the appellant’s account and concluded that he was an economic migrant who had wanted to come to London. He found that the appellant would be at no risk on return to Afghanistan and that he would be assisted by his family on his return. His removal would not breach his human rights. He dismissed the appeal on all grounds.
7. Permission to appeal Judge Heatherington’s decision was sought on the grounds that the judge had wrongly stated that the appellant did not come from an area under Taliban control, when he did, that the judge was wrong to discount forced recruitment by the Taliban, that the judge had erred in his assessment of the appellant’s credibility and that the judge had failed to give proper consideration to the question of internal relocation to Kabul for a child.
8. Permission to appeal was granted to appeal to the Upper Tribunal and the appeal came before me on 4 April 2017.
9. Having heard submissions from the parties I have come to the view that there are material errors of law in Judge Heatherington’s decision such that it has to be set aside and the decision re-made by another judge.
10. I agree with Ms Alban’s submission that there is no indication that the judge had regard to the appellant’s age when making his adverse credibility findings. It is clear from his findings at [10.10] that the judge found the appellant to be a difficult witness and it was to a large extent on that basis that he made the significantly adverse findings that he did. As Ms Alban submitted, it may be that the judge would have considered the appellant to be a frustrated minor rather than an uncooperative adult, had he considered his age, and this in turn could have impacted upon his findings on credibility. Accordingly the judge’s apparent lack of regard for the appellant’s minority is a matter that could have had a material impact upon his findings.
11. In addition, there is merit in the assertion in the grounds that the judge made findings which were inconsistent with the background information before him, with regard to the appellant’s home area being an uncontested area and as regards forced recruitment in that area. Mr Mills agreed that the judge was incorrect in regard to the former.
12. It was Mr Mills’ submission that such errors were immaterial since the appellant could internally relocate to Kabul if he was found to be at risk in his home area. However I find myself in agreement with Ms Alban that, since the appellant is a minor, there would have to be a full consideration of various matters when considering the viability of internal relocation to Kabul, such as the ability of his mother and uncle to relocate to Kabul to provide the family support relied upon by the respondent. Those were matters which the judge had not considered.
13. Whilst it may well be that the same adverse conclusion would have been reached on the appellant’s claim even if the above matters had been properly considered by the Tribunal, that cannot simply be assumed to be the case. Accordingly it seems to me that the proper course is for the decision in the appellant’s appeal to be re-made afresh and for full and proper findings to be made with full consideration of the appellant’s age and with a proper understanding of the background evidence.
14. Accordingly, I set aside the decision of Judge Heatherington and remit the case to the First-tier Tribunal to be heard de novo, with none of the findings made by the judge preserved.

DECISION
15. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal, to be dealt with afresh, pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), before any judge aside from Judge Heatherington.
Anonymity
The First-tier Tribunal made an order for anonymity. I maintain that order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed
Upper Tribunal Judge Kebede Date: 5 April 2017