Tribunal decisions

The decision

IAC-AH-dh-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/03263/2015
PA/03218/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 7th December 2016
On 20th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr MSM (first appellant)
Mr ASS (second appellant)
(ANONYMITY DIRECTION made)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mr G O'Ceallaigh, Counsel
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are citizens of Afghanistan born on 13th April 1950 and 1st January 1993. They are father and son. Between them they have three family members who are also in the UK who are dependent upon their appeals namely the first Appellant's wife and mother of second Appellant and the second Appellant's two children born on 3rd January 1998 and 25th May 2001. The Appellants left Afghanistan on 1st June 2015 and arrived in the UK by lorry on 14th June 2015 and claimed asylum on 29th June 2015. The Appellants' claim for asylum is based upon a fear that if returned to Afghanistan they would face mistreatment by an individual known as Ahmed and his sons due to the Appellants being Sikhs whilst Ahmed and his family are Muslims. Further they fear that their family would be recruited into Jihad or their daughters married off to Jihad fighters. The Appellants' application was refused by Notice of Refusal issued by the Home Office on 19th November 2015.
2. The Appellants appealed and the appeal came before Judge of the First-tier Tribunal Brookfield sitting at Manchester on 11th July 2013. In a decision and reasons promulgated on 28th July 2016 the Appellants' appeals were dismissed on asylum and human rights grounds and the Appellants were found not to be in need of humanitarian protection. Judge Brookfield made an anonymity direction. No application is made to vary that order and that order remains in place.
3. On 10th August 2016 the Appellants lodged Grounds of Appeal to the Upper Tribunal. Those grounds contended:-
(i) that the First-tier Tribunal Judge had failed to have regard to the country guidance in TG and Others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 595 (IAC) in assessing the plausibility of the Appellants' account of being targeted by Ahmed;
(ii) that the judge failed to have regard to country guidance in considering the issues that were relevant to destitution in respect of the whole family; and
(iii) the judge failed to have regard to the relevant country guidance in considering the best interests of LKM, the minor child of the second Appellant born on 25th May 2001 and aged 15 who had lived in the UK since arrival on 14th June 2015 and been in education therefore since September 2015.
4. On 25th August 2015 Judge of the First-tier Tribunal Page granted permission to appeal. That permission concentrated on the suggestion that the judge had failed to have regard to the country guidance in TG and Others. Judge Page noted that the judge's decision makes no reference to TG and Others and that therefore it followed that the application had raised arguable errors that wanted further consideration.
5. On 15th September 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. That reply noted that the judge properly considered the Appellants' asylum claim and found that they would not be at risk on return to Afghanistan. The Rule 24 states that the judge did make reference to the country guidance authority of TG and Others and applied it to the facts of the case as set out at paragraph 10(xv) of the determination. Further the Rule 24 response states that the judge also considered the best interests of the child as set out at paragraph 10(xxiv), (xxv) and (xxvi).
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellants appear by their instructed Counsel Mr O'Ceallaigh. The Secretary of State appears by her Home Office Presenting Officer Mr Bates.
Submission/Discussion
7. Mr O'Ceallaigh submits that there are two principle errors of law upon which he wishes to concentrate. Firstly he submits that the First-tier Tribunal Judge has failed to apply the country guidance authority of TG and Others albeit that he accepts that the headnote to that authority has been mentioned within the decision and secondly that the judge failed to make material findings. He submits it is actually very unclear as to what findings the judge made, if any, for example as to whether Mr Ahmed, the alleged perpetrator of the persecution, actually exists or not or as to what would happen to the Appellants upon return i.e. as to what they would use for financial support and where would they go to live. Further the judge he submits has failed to consider whether they would be targeted and has failed to apply the country guidance as to whether the sort of thing that occurs as set out in the country guidance of TG actually happens. He submits that the harassment of the Sikh and Hindu communities is dealt with extensively within the country guidance authority i.e. it is a documented point and that the judge has failed to address this. He submits that there is evidence which is corroborative to the Appellants' claim provided by family members and that this is key to the credibility assessment and that the judge has failed to take this into account. For all these reasons he submits there are material errors of law.
8. He takes me to some of the findings of the judge. Whilst he acknowledges that there are extensive paragraphs he emphasises that they do not address the initial issues. He notes the finding at paragraph 10(ii) where the judge states "It seems to me that if local Muslims had problems with the first Appellant and his family because of their religion, it is highly improbable that they would patronise his shop when they had an alternative option to purchase the same goods from a Muslim."
9. Mr O'Ceallaigh emphasises that if the country guidance authority is scrutinised it is clear that this sort of persecution does happen and had the judge applied country guidance she would have come to that conclusion. He emphasises that it does not mean that all Muslims would behave in the way contended by the alleged perpetrators in this appeal.
10. He points out that the First-tier Tribunal Judge has failed to take into account that their account is consistent with country guidance thus following the principles originally set out in Horvath and has failed to take into account what the Appellants' core of their case is namely that they have been harassed. He submits that the findings are contradictory to country guidance and as such constitutes material errors of law.
11. He further takes me to the findings of the judge at paragraph (xix) and submits that the judge's conclusions on sufficiency of protection are inadequate and that the reality is that the judge when making her findings did not have the country guidance authority in mind and that the whole point of country guidance is that Sikhs are at risk as a result of the way that they are treated.
12. In response Mr Bates points out that the judge's findings are detailed and that Mr O'Ceallaigh in his submissions has cherry-picked the judge's findings on credibility, that there are other paragraphs (iv) and (v) which all address the issue of credibility. The judge has referred, he submits, to a specific incident in May 2015 and found that the Appellants' evidence lacks credibility and that the incident was spurred by trade jealousy. He submits that the judge has engaged with the specific credibility account and given cogent reasons. Consequently when looked at as a whole the judge has taken all issues into account and the arguments with regard to business rivalry have found to be not credible and that the findings made were open to the judge.
13. He further submits that the judge has not merely set out the headnote to the country guidance authority but has applied the facts (paragraph (xvi)) and that this is a fact-sensitive case and therefore that the judge has addressed the issues and found that two adult males can provide protection. He notes that it would be possible for the male Appellants to set up another business and that the Appellants had access to substantial funds. At paragraph (xviii) the judge has noted that there are Gurdwaras operating in Kabul and that the Appellants would be able to continue their religion and their schooling in Kabul. He submits that the judge was entitled to conclude that the Appellants would be able to re-establish a self-employed business within Kabul. He contends that the judge's findings were open to her based on her findings on credibility.
14. Further he submits the judge has gone on to consider the minor child and stated at paragraph (xxiii) that the Appellants did not pursue a claim under Article 8. Considering the best interests of the child he states the judge made a finding that there was no reason to suggest that family life could not continue. He points out that just because other judges may have come to a different decision does not mean that there is a material error of law and he asks me to find that the decision is sound and to dismiss the appeal.
15. Mr O'Ceallaigh in brief response indicates that the judge makes credibility findings on the facts and then looks at the country guidance. He submits that the error is that there is a risk in that the judge has failed to make findings which are not consistent with country guidance and that overall the judge has failed to consider TG. He points out the judge has made no findings on the Appellants' financial position, only noted that the family used to have money and that in such cases decisions are fact-sensitive and much depends on the resources. He submits that there are no findings on this aspect and of how the family would live.
16. He takes me again to paragraph (xvi) of the judge's findings, which is the only paragraph that addresses the financial circumstances, and points out that guidance given with regard to how they should be addressed within TG has not been considered. He points out there had been no findings made on family support and he asked me to remit the matter to the First-tier Tribunal.
The Law
17. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
18. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
19. The starting point in this matter is the way in which the judge has given due consideration to the country guidance authority of TG and Others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 595 (IAC). The judge has set out the headnote at paragraph (xv). I agree with the submissions thereafter of Mr O'Ceallaigh that the judge has failed to apply that country guidance to the facts of this case. As a starting point it is necessary for the judge to consider the issue of credibility. A proper approach to credibility requires an assessment of the evidence and of the general claim. In asylum claims, relevant factors will consist of firstly the internal consistency of the claim; secondly the inherent plausibility of the claim and thirdly the consistency of the claim with external factors of the sort typically found in country guidance. I acknowledge it is theoretically correct that a claimant need do no more than state his or her claim but that claim still needs to be examined for consistency and inherent plausibility. In nearly every case external information against which the claim could be checked will be available.
20. In this case that external evidence consists of the country guidance authority, objective evidence and the evidence of the parties. It is not a case where the evidence of the Appellants is disbelieved but one where the basis behind the alleged persecution is found by the judge to be a neighbour dispute over business rather than persecution.
21. The judge should consider the evidence in the light of country guidance rather than merely recite it. The judge has made no findings on the availability of family support and has failed to give full and due proper consideration to the religious differences and persecution that arises as set out in TG concentrating on a business rivalry.
22. The judge made no findings as to whether the family would be destitute on return to Jalalabad and no findings on whether the Appellant a year after leaving Afghanistan would have any assets in Jalalabad or elsewhere. Further the judge made no findings as to whether the Appellants had any family in Afghanistan. There is no indication within country guidance authority that the Sikh businesses are shunned by Muslim customers and the judge was in error with this regard at paragraph 10(ii). Further the judge clearly departed from country guidance in her conclusions on sufficiency of protection at paragraph 10(xix). I accept the submission made by Mr O'Ceallaigh that that is relevant as to Ahmed's motives i.e. as to whether this is a case of a Muslim seeking to exploit the weak position of a Sikh minority as against a neighbour dispute. Further I accept Mr O'Ceallaigh's submission that the judge fell into error in looking for specifically religious motivation on behalf of Ahmed and doubting the plausibility of the Appellants' account on that basis i.e. being a Sikh and having a valuable business are clearly risk factors in themselves and the judge failed to take this into account
23. In such circumstances there are material errors of law in the decision of the First-tier Tribunal Judge. The correct approach is to remit the matter back to the First-tier Tribunal for a rehearing with none of the findings of fact to stand. I emphasise that that is not to say that another judge would not come to exactly the same conclusion but in doing so it would be necessary to give due and full consideration to the position in which the Appellants as a whole find themselves and apply TG and Others accordingly.

Notice of Decision and Directions

The decision of the First-tier Tribunal judge contains a material error of law and is set aside. Directions are given hereafter for the rehearing of this matter:-

1. The appeal is remitted to the First-tier Tribunal sitting at Manchester to be heard before any Immigration Judge other than Immigration Judge Brookfield on the first available date 28 days hence with an ELH of three hours.

2. None of the findings of fact are to stand.

3. That there be leave to either party to file at the Tribunal and serve copies on the other party an additional bundle of objective and/or subjective evidence upon which they seek to rely along with any additional skeleton arguments and authorities at least seven days prior to the restored hearing.

4. That the Appellants do attend court for the purpose of cross-examination.

5. That a Punjabi interpreter is required.

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

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris