Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02399/2016

THE IMMIGRATION ACTS

Heard at Birmingham
Decision & Reasons Promulgated
On 20 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

SK
(ANONYMITY DIRECTION MADE)
Respondent

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr S Woodhouse, solicitor, Sultan Lloyd Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of First-tier Tribunal Judge Nixon, promulgated on 26 September 2016. Permission to appeal was granted by First-tier Tribunal Judge Froom on 14 October 2016.
Anonymity
2. A direction was made previously, and this is reiterated below.
Background
3. The respondent is a national of Afghanistan born on 1 December 1998. He entered the United Kingdom unlawfully on 17 October 2012, aged 13, and applied for asylum the same day. The basis of his claim was that he was at risk of persecution as an unaccompanied child and that the Taliban had attempted to recruit him. That application was refused on 10 May 2013 however the respondent was granted Discretionary Leave to Remain as an unaccompanied asylum seeking child until 10 November 2015. His appeal against that decision was dismissed and his appeal rights were exhausted on 20 September 2013.
4. On 9 November 2015, the respondent made an in-time application for further leave to remain which was refused on 18 February 2016. He relied upon his previous statements and added a new protection issue, that of his westernisation. In addition, the respondent relied on the private life he had established in the United Kingdom since 2012.
5. In refusing his claim, on 18 February 2016, the Secretary of State accepted that the respondent was aged 17 years and 2 months and that he was an Afghan national. The credibility of the respondent’s protection claim was rejected, with reference to the findings of an immigration judge following a hearing which took place on 9 August 2013. Essentially, the previous judge found that the respondent’s accounts were “inconsistent, implausible and contrary to the objective country evidence concerning Taliban recruitment.” After considering up to date country information, the Secretary of State rejected the claim that the Taliban would wish to take the respondent for any reason. It was not accepted that there were very significant obstacles to the respondent’s integration because he had lived in Afghanistan for 13 years and had significant social and cultural ties. There were considered to be no exceptional circumstances.
The hearing before the First-tier Tribunal
6. At the hearing before the First-tier Tribunal, the judge found that no facts had been put before her to displace the findings of the previous judge and nor was there any evidence to show a real risk of the respondent being forcibly recruited by the Taliban now. In relation to the humanitarian protection claim advanced, the judge declined to depart from the conclusions in AK(Article 15(c)) Afghanistan CG [2012] UKUT 00163. The judge found that the respondent could not satisfy the criteria of paragraph 276ADE(1) of the Rules but found there to be compelling reasons to consider the claim outside of those Rules. Upon doing so, the judge considered the statements, letters and reports before her and concluded that the respondent’s removal was not outweighed by public interest considerations.
The grounds of appeal
7. The grounds of appeal argued that the judge failed to give adequate reasons for findings on material matters such as why the respondent would not have the emotional support of his foster family (with whom he no longer resided); why the respondent’s academic success would not assist him to obtain employment in Afghanistan and why his circumstances were so compelling that his private life warranted examination outside the Rules. There was no evidence of vulnerability nor that the respondent was incapable of existing independently.
8. It was further argued that the judge materially misdirected herself by failing to have regard to the precarious nature of the respondent’s stay in the United Kingdom.
9. Permission to appeal was granted on the basis that it was arguable that the judge misdirected herself by failing to show that she recognised that little weight should be afforded where the stay in the United Kingdom has been precarious and by attributing too much significance to matters such as her belief that the respondent would become an asset to society, MG (Assessing interference with private life) Serbia and Montenegro [2005] UKAIT 00113, applied.
10. Judge Froom also refused the application made on behalf of the respondent against the dismissal of his protection claim.
The hearing
11. Mr Mills handed up the determinations in AM (S.117B) Malawi [2015]UKUT 0260 (IAC) and Foreman (ss117A-considerations [2015] UKUT 00412 (IAC). He acknowledged that by the date of the hearing, the respondent was still two months short of his eighteenth birthday, however by then he had moved onto independent accommodation and the judge rightly felt that he enjoyed no family life and allowed it on private life grounds only. At [26] the judge made reference to the expert evidence that Kabul was unsafe for the appellant; that evidence had been rightly rejected by the judge who moved onto consider the case under the Rules and found that they were not met.
12. Mr Mills emphasised that the respondent's complaint was in relation to the judge's treatment of section 117B, in that it was not clear that it has been applied. Relying on Foreman, Mr Mills argued that a decision must demonstrate the considerations have been given full effect. It was hard to see a proper reference to those provisions in the judge's decision. The important point was precariousness, with regard to section 117B(5). With reference to AM and Ruppiah v SSHD [2016] EWCA Civ 803, it was clear that there is a distinction between unlawful and precarious presence, in that the respondent had leave but required a further grant of status. The respondent knew the Secretary of State did not accept any claim to remain and the judge should have attached little weight to the private life established. Relying on Kaur (children's best interests / public interest interface) [2017] UKUT 00014 (IAC), Mr Mills argued that the judge did not attach any weight to that principle, merely said that he had been here for years, and referred to his fluency in English and strong work ethic. She did not address the statutory guidance and that made her decision unsustainable.
13. Mr Woodhouse argued that the judge was alive to the provisions in section 117B and said so at [28]. She could have worded her decision better but she took into account. In terms of her comments about the appellant not being likely to be a drain on society, she was alive to s117B(3). Little weight does not mean no weight. Any error was immaterial given the judge's findings on the respondent's significant ties in UK, his age when he developed his private life and that he had nobody in Afghanistan to return to. Regardless of which end of the spectrum the appeal would have been allowed.
14. In reply, Mr Mills accepted that the judge could have properly allowed the appeal on these facts but was not bound to allow it on these facts.
15. At the end of the hearing, I announced that I had found no material error of law and would be upholding the decision of the First-tier Tribunal.
Decision on error of law
16. The judge refers to section 117B of the Act at [28] of her decision, stating that she was keeping it in mind, prior to commencing her assessment of the Article 8 claim outside the Rules. While the judge did not reproduce section 117B in her decision nor the specific provisions contained therein, I am satisfied that she had regard to them. At [32] the judge notes the respondent's lawful presence, which is obviously relevant as far as section 117B(5) is concerned. There is simply no reason to conclude that the judge was unaware of the fact that the respondent's private life was developed while his leave was precarious. In addition, the judge refers to the respondent's ability to speak English at [32] and the likelihood that he would not be a drain on resources at [31]. These are clearly relevant to the considerations in sections 117B(2) and 117B(3) of the Act. The judge directed herself appropriately, in that she did not regard the respondent's ability to speak English or to be financially independent as positive factors.
17. The judge finds in the respondent's favour owing to the inability of his former foster family to provide the necessary emotional support that she found he was likely to need in making his own way in Kabul; his social worker considered that it was in his best interests to remain in the United Kingdom; that he came to this country as a child and that he had remained lawfully. Finally, at the time of the hearing, the respondent remained a minor.
18. In Kaur, headnote 5 states as follows:
5) The "little weight" provisions in Part 5A of the 2002 Act do not entail an absolute, rigid measurement or concept; "little weight" involves a spectrum which, within its self-contained boundaries, will result in the measurement of the quantum of weight considered appropriate in the fact sensitive context of every case.
19. In view of the judge's assessment of the statutory considerations as well as the additional matters in the respondent's favour, the judge was entitled to conclude that the public interest considerations were outweighed by the respondent's private life.

Conclusions
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision is upheld.
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: 22 March 2017

Upper Tribunal Judge Kamara