Tribunal decisions

The decision

IAC-FH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02578/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15th February 2017
On 21st February 2017

Before

UPPER TRIBUNAL JUDGE MARTIN

Between

Mr j d
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Sills (Counsel, instructed by J D Spicer Zeb Solicitors)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Appellant against the Decision of First-tier Tribunal Judge P J S White who, sitting at Hatton Cross on 18th August 2016, heard the Appellant's asylum appeal. The Decision and Reasons was only promulgated on 15th November 2016, just short of three months later.
2. The Appellant challenges that Decision and permission to appeal was granted on one basis only, namely that if the Judge had had concerns about aspects of the evidence it was unfair of him not to put those to the Appellant. In particular the grounds argued that the Judge's finding that it was not credible that the Taliban would inform the Appellant's mother when they would return a second time for the Appellant as this only served to warn the Appellant and to give him the opportunity to escape was not credible and not put to the Appellant at the hearing. That ground is not made out because it is quite clear that that was an issue taken against the Appellant by the Secretary of State in the Letter of Refusal, at paragraph 25 where the Secretary of State says:
"? it is not considered to a reasonable degree of likelihood that the Taliban, who were intent on taking you, would wait three days rather than take you on the same day after you returned from school."
3. The second finding which was challenged was the Judge's finding that it was not credible that the Appellant's family would be able to arrange for his departure, including securing funds so that he could leave Afghanistan the next day. That matter was not relied upon by the Secretary of State in the refusal, was not put to the Appellant at the hearing and therefore I find is a finding which the Judge was not entitled to make on the grounds of fairness, it not being put to the Appellant at the hearing.
4. Having so found the question is then whether that error is material. Looking at the Decision and Reasons as a whole the findings start at paragraph 16. The first matter the Judge deals with is the Appellant's age which was disputed by the Secretary of State. There was a dispute as to whether the Appellant was born in 1999 or 2000. That was to a large extent immaterial because in either case he would have been under 18 at the date of the hearing. However on the basis of the evidence before him the Judge found that the only finding he could properly make was that the Appellant was born on the date he claimed, namely 2000.
5. The Judge then goes on to confirm that at the time the events happened and at the time he was interviewed he was a comparatively young man and at the time of the incidents he claims to have taken place in Afghanistan, a comparatively young teenager of 14 or 15.
6. The Judge then deals with credibility issues raised by the Respondent in the Refusal Letter and in paragraph 21 gives reasons for rejecting those. He does find at paragraph 22 that the Appellant has embellished somewhat his claim but also says that that does not necessarily mean that the original account he gave was untrue.
7. The Judge then spends some paragraphs considering forced recruitment and finds at paragraph 26 that although the background evidence suggests its comparative rarity he finds that is not a sufficient reason, on its own, to disbelieve the Appellant's account.
8. Then at paragraph 27 is the adverse finding in relation to the warning given by the Taliban to return and that is a finding which stands up for the reasons I have already given.
9. At paragraph 28 is the other finding with regard to the speed of exit which I have found for reasons already given does not stand up, and that is the end of the credibility findings because the Judge then goes on to consider whether the Appellant has contact with family members and whether he can return to Afghanistan. That means that the only adverse credibility finding that the Judge hangs the entirety of his adverse decision on is in relation to the three day warning.
10. It cannot be said as the Secretary of State suggested in the Rule 24 notice that the Judge made numerous adverse credibility findings, he made one and given the Appellant's extreme youth at the time the events happened and indeed his youth at the time of the hearing, to discount the entirety of the claim for that one matter I find to be a material error of law and is unsustainable.

Notice of Decision

For that reason the Decision as whole must be set aside and will need a full hearing on all matters. That being the case it is an appropriate case to be remitted to the First-tier Tribunal for a full re-hearing. The Appellant will require a Pushtu interpreter and the appropriate hearing centre remains Hatton Cross.

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 20th February 2017

Upper Tribunal Judge Martin