Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03196/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24 February 2017
On 6 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A MONSON

Between

AZ (Afghanistan)
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms M Gherman (Counsel instructed by Virgo Solicitors)
For the Respondent: Mr S Whitwell (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. The Appellant, who is a minor, appeals from the decision of the First-tier Tribunal (Judge M A Khan sitting at Hatton Cross on 15 September 2016) dismissing his appeal against the decision by the Secretary of State to refuse to recognise him as a refugee.

The Reasons for the Grant of Permission to Appeal to the Upper Tribunal
2. On 4 January 2017, First-tier Tribunal Judge Shimmin granted the Appellant permission to appeal for the following reasons:
“(ii) It is argued that the Judge erred in law in failing to adjourn the hearing to allow the Appellant to produce medical evidence which touched upon issues in the appeal.
(iii) It is argued that the Judge misunderstood material elements of the evidence.”
Relevant Background Facts
3. The Appellant has an accepted date of birth of 1 January 2001. He was encountered in the UK on 3 September 2015 and was served with an IS96 ENF Notice on 20 November 2015 for entering the United Kingdom illegally.
4. A screening interview was conducted on 20 November 2015, and a Statement of Evidence Form was served on 18 December 2015. A witness statement from him was submitted by his solicitors on 1 March 2016, and a substantive asylum interview took place on 3 March 2016.
5. He said that he had been born and brought up in Qalacha, Wardak province, which is directly to the east of Kabul province. His father worked as a security guard at a radio station, and he had previously worked as a policeman at Jalreez Police Station. His father had problems as the Taliban wanted to take over the Jalreez district, and his father and other people were fighting against them. On one occasion the Taliban came to the family home, and he and his father were taken away.
6. After a long walk he and his father were separated, and he was taken to a room where he stayed for three days. He was then taken to a big house where he remained for one week and cleaned bullets. He managed to escape with the help of three other boys through a small window during the night, and he ran until he reached a village.
7. After having some food in the village mosque, he realised there were big vehicles going to Kabul. He approached a bus driver and asked him to take him to Kabul. As he did not have any money, he had to travel on the roof of the bus. The journey took 2½ hours.
8. After hanging around the bus terminal in Kabul, not sure what to do, he eventually by coincidence came across a friend of his father. He explained his story to him. This friend took him to a hotel and introduced him to the person in charge. He was allowed to stay there on the basis that he cleaned the hotel during the day.
9. About one week later, the four members of the Taliban that had captured them came to the hotel for a meal. He thought that they had come to the hotel to find him. He telephoned the police on 119, and informed them that there were four members of the Taliban in the hotel. Before the police arrived, one of the members of the Taliban happened to leave the hotel to make a telephone call. The police captured the other three and arrested them.
10. After that, the remaining member of the Taliban, who had returned to the hotel, became very upset and started shouted and screaming: he said that he was going to destroy the hotel. The owner of the hotel told him that it was a young boy who had reported them to the police. Once the appellant heard this, he “ran” to his father’s friend. He then said that he had called his father’s friend on the telephone. The friend came and collected him. He spent some days with his father’s friend, who then produced some papers which he said the appellant’s father had given him. The friend got him to put his thumb print on the papers, and he then handed him over to an agent who he said who was going to take him to a safe place.
11. In the subsequent Reasons for Refusal letter, the Respondent accepted the Taliban had tried to recruit the Appellant. But she did not accept that the Taliban had pursued him.
12. On the issue of internal relocation, it was considered that he had no medical conditions and he spoke Dari, a language widely spoken in Afghanistan. His family members, including his mother, were still living in Afghanistan. Also he had a friend of his father who lived in Kabul and who had previously helped him to leave Afghanistan. Although living in Kabul would involve a degree of hardship and discomfort, it would not be unduly harsh for the Appellant to move there.
The Hearing Before, and the Decision of, the First-tier Tribunal
13. For the purposes of the appeal hearing, the Appellant’s solicitors compiled an Appellant’s bundle. This included Section M running from M1 to M43. The entirety of this Section was devoted to medical evidence relating to the Appellant.
14. The Appellant was represented by Ms Hena of Counsel, who had prepared a Skeleton Argument. On the topic of relocation, she submitted that the Appellant was a minor and so relocating to avoid forced recruitment would be unduly harsh and it would place him at risk of exploitation. Although the Appellant had been granted leave to remain as an unaccompanied asylum seeking minor, Ms Hena also advanced a claim under Article 8 ECHR. The Appellant had suffered from two seizures which had both lasted in the region of five minutes. He was under the care of Whipps Cross Hospital, which was investigating the cause of these seizures. He had a further appointment scheduled in October 2016. There was also possibly going to be an investigation into whether the Appellant had PTSD due to his experiences in Afghanistan. It could be seen from the medical history that the Appellant had taken an overdose of paracetamol and he had been referred for an assessment by a community mental health team:
“Given his additional mental health needs it would not be proportionate to remove the A to Afghanistan. It would not be possible to assure he could be safely removed.”
15. As recorded in paragraphs [8] and [9] of the Judge’s subsequent decision, at the outset of the hearing Ms Hena made an application for an adjournment. Her grounds were that the medical evidence suggested that further investigations where necessary into the Appellant’s physical and mental health. The Presenting Officer opposed the adjournment, as there was medical evidence already before the Tribunal.
16. After he heard from both representatives, the Judge decided to refuse to adjourn the hearing for the following reasons:
“[T]hose who instruct Counsel have had sufficient time to gather evidence which they seek to rely on and there is some medical evidence on the appellant’s condition in the bundle.”
17. As recorded in paragraphs [21] and [22] of the Judge’s decision, the Appellant was asked about his health both in chief and in cross-examination. He said that he had had medical problems but he was feeling fine today. He could not remember when he last had a seizure.
18. In her closing submissions on behalf of the Respondent, the Presenting Officer submitted that the Appellant’s evidence was not consistent, and that the Judge should consider that his evidence was not credible even though he was a minor. On the topic of the medical evidence, she submitted it was safe for the hospital to discharge the Appellant. She also pointed out that the Appellant was not receiving any counselling.
19. In reply, Ms Hena submitted the Appellant was confused as to his reply to Question 113 in the asylum interview. When considering the Appellant’s credibility, the Judge should take into account that he was a minor. The Taliban were taking young people and using them for violent acts. If the Appellant was returned to Afghanistan now, he would have no one there. There was a lot of violence in Afghanistan. The Appellant had a serious medical condition, and he was vulnerable.
20. The Judge’s findings on credibility are set out at paragraph [31] onwards. He found that the Appellant’s evidence that he was helped to escape by other young men in control of the Taliban was not consistent with his answer at C1.1. He found that if the Appellant had been abducted as he claimed then he would be able to give a consistent reply as to how he managed to escape from the Taliban. His evidence as to how he was able to contact his father’s friend was also contradictory and inconsistent.
21. At paragraph [35] the Judge said:
“The appellant said that he was given his father’s friend’s telephone number written on a piece of paper, after [ringing] the number and having spoken to his father’s friend, he threw the paper away. He then said that he threw it into his pocket. I do not accept the appellant’s evidence [is] credible. I find that he was making up evidence when challenged. He said his father’s friend gave him papers to put his thumb print on and he was told that these documents came from his father. The appellant was not told anything about his father, whether there was any contact with him and the appellant did not bother to ask his father’s friend as to his whereabouts of his father. I find there is a very big gap in the appellant’s explanation about his father. The appellant’s father must have been free for him to have given papers to his friend. I find there is a lack of explanation as to the Appellant’s father’s circumstances. I do not find the appellant’s evidence credible or consistent.”
22. The Judge concluded that the Appellant’s family had decided to put the Appellant into the hands of an agent for him to come to the UK. The Appellant had simply fabricated “the whole evidence” in order to support his application for asylum in the United Kingdom. On the issue of risk on return, he found that the Appellant could return to his home area without any risk. If not, he had the choice of returning to Kabul.
The Hearing in the Upper Tribunal
23. At the hearing before me to determine whether an error of law was made out, Ms Gherman developed some of the arguments advanced by Ms Hena in the application for permission to appeal. Mr Whitwell adhered to the Rule 24 response opposing the appeal which had been settled by a colleague: it seemed that the Appellant remained undiagnosed and was not having any treatment. So it was not clear what purpose the adjournment would have served.
Discussion
24. Ground 1 is that the Judge erred in law in refusing to grant an adjournment. Reliance is placed on Nwaigwe (adjournment: fairness) [2014] UKUT 418 (IAC). Where the UT said that:
“In practice, in most cases the question will be whether the refusal (of an adjournment) deprived the affected party of his right to a fair hearing. Where an adjournment refusal is challenged on fairness grounds, it is important to recognise that the question for the Upper Tribunal is not whether the FtT acted reasonably. Rather, the test to be applied is that of fairness: was there any deprivation of the affected party’s right to a fair hearing?”
25. As fairness, rather than reasonableness, is the key consideration, it is appropriate to apply hindsight to the matter in issue. The position taken in the Rule 24 response is confirmed by the medical evidence which Ms Gherman produced at the hearing. The Appellant attended a paediatric epilepsy clinic at Whipps Cross Hospital on 17 January 2017. Investigations so far had revealed nothing abnormal. The EEG on 5 July 2016 was within normal limits. The CT scan done at Queens Hospital was reported to be normal. The ECG test done on 30 August 2016 also produced a normal result.
26. The Appellant attended the epilepsy clinic with his foster carer. It was reported that he had had two episodes of loss of consciousness in February and May 2016 respectively. He was observed to be unconscious for 2 to 3 minutes and he had some jerky movements. He then came round and he was feeling well after that. He also had a fainting episode in January 2016. At present he was attending school and he was doing well. He was sleeping and feeling okay. On examination he was not pale. There were no dysmorphic features or neuro-cutaneous manifestation. He responded well in English to the questions which the doctor put to him. There were no concerns on either a systemic examination or on a central nervous examination. All was normal.
27. The medical evidence which was available to the First-tier Tribunal was extensive. There was no suggestion in the medical evidence that the Appellant was suffering from any cognitive impairment, or that his ability to give evidence was affected. It was also not suggested that the Appellant was, in the period leading up to the date of the hearing, displaying the signs and symptoms of possible PTSD.
28. The possible diagnosis of PTSD related back to the incident on 7 May 2016 when he told his foster carer when he was sitting on the stairs that he had taken some paracetamol tablets. In the subsequent letter from the paediatric clinic dated 31 May 2016, it was observed that the impetus for this possible overdose was that there was some uncertainty regarding the Appellant’s status in the UK. There were also some issues around his schooling. He was currently not able to go to the school that he preferred to attend.
29. I emphasise that the overdose was not confirmed. The medical discharge summary states that the paracetamol levels were “NAD”. An examination of the patient revealed nothing of note. The foster carer also reported that she kept her medications under lock.
30. In conclusion, I do not consider that the Appellant was deprived of a fair hearing as a result of the refusal to grant the adjournment request. There had been follow-up investigations to both the fitting and the reported overdose episodes, the results of which were contained in the medical evidence before the First-tier Tribunal; and there was no particular reason to suppose that further investigations were going to significantly transform the landscape, in circumstances where the Appellant was currently presenting as being in good health, and he had been in good health - both physically and mentally - in the period leading up to the hearing.
31. The second limb of Ground 1 is that the Judge failed adequately to take account of the medical evidence in his findings.
32. At paragraph [44], the Judge held that the Appellant had provided medical evidence to show that he had blackouts and seizures and that he had also taken an overdose of painkillers. He observed that there may be a mild form of stress and depression, but he found that the Appellant’s family in Afghanistan would be able to help and assist him with his medical issues.
33. Ms Hena submits in the grounds of appeal that it was not open to the Judge to make a diagnosis that the Appellant’s seizures were the result of mild stress, when consultants at two hospitals had not been able to diagnose the cause.
34. However, it was reasonably open to the Judge to infer that the reported, but unconfirmed, overdose was the product of mild stress and depression; and that the Appellant’s family in Afghanistan could support and assist the appellant in coping with the symptoms of stress and depression, and also with any further seizures.
35. On the issue of risk on return, the Judge’s primary finding of fact was that the Appellant had all his family, including his father, to return to in his former home area of Afghanistan, and he could safely live with them there. The Judge held that, in the alternative, the Appellant had the choice of returning to Kabul.
36. It is clear that the Judge did not envisage the Appellant being an unattended child, and so the Judge is not to be taken as implying that the Appellant had the option of being an unattended and vulnerable child in Kabul.
37. The second ground of appeal is that the Judge misunderstood the evidence given by the Appellant about the events which he said unfolded in Kabul. The Judge was able to compare what the Appellant said in cross-examination with what he had said in his asylum interview. I consider that it was open to the Judge to find that there were inconsistencies in his account, for the reasons which he gave. Moreover, it was open to the Judge to draw an adverse credibility inference from a piece of evidence about which the Appellant had been consistent, namely that his father’s friend had got him to put his thumb print on documents which he said he had obtained from the Appellant’s father. It was open to the Judge to draw the inference that the Appellant’s father must have been at liberty in order to provide these documents to the friend – and therefore he was not being held captive by the Taliban.
38. The Appellant has failed to make good a case that the Judge misunderstood the evidence which the Appellant gave. Ground 2 presents as no more than expression of disagreement with adverse credibility findings which were open to the Judge to make.

Notice of Decision
39. The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Direction Regarding Anonymity – Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

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 his 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

Deputy Upper Tribunal Judge Monson