Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03409/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 October 2016
On 3 November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

I K
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Reid (Counsel) instructed by Wick & Co, solicitors
For the Respondent: Mr S Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
1. I make an anonymity order under Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, precluding publication of any information regarding the proceedings which would be likely to lead members of the public to identify the appellant, because the appellant is a minor.
2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Ross promulgated on 22 August 2016, which dismissed the Appellant's appeal on all grounds.
Background
3. The Appellant was born on 1 January 2001 and is a national of Afghanistan.
4. On 22 March 2016 the Secretary of State refused the Appellant's protection claim.
The Judge's Decision
5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Ross ("the Judge") dismissed the appeal against the Respondent's decision.
6. Grounds of appeal were lodged and on 22 September 2016 Judge Astle gave permission to appeal stating
"1. The appellant seeks permission to appeal, in time, against a decision of the First-tier Tribunal (Judge Ross) promulgated on 22 August 2016 whereby it dismissed the appellant's appeal against the Secretary of State's decision to refuse his protection claim.
2. The grounds argue that the Judge erred in applying the standard of proof bearing in mind the appellant's age. The Judge failed to consider the corroborative evidence/objective material. Secondly the Judge erred in finding that the appellant could return to Kabul. In relying on article 15c jurisprudence he adopted too narrow a construction. Thirdly he erred in refusing the appellant's human rights claim without proper consideration. Whilst he considered article 3 ECHR, he failed to consider articles 2 or 8.
3. I am satisfied that the Judge had proper regard to the appellant's age in considering his evidence. I refer to paragraph 14. The internal inconsistencies were sufficient to damage the appellant's credibility. The fact that children are taken by the Taleban to act as suicide bombers does not mean that it was reasonably likely to have occurred in this case. Although the Judge relied on AK Afghanistan CG [2012] UKUT 00163(IAC) in respect of return to Kabul and I conclude that he was entitled to do so in the circumstances. Given that the claim under article 3 was dismissed there cannot be any merit in a separate article 2 claim. However, the Judge failed to consider article 8 and it is arguable that he erred in so doing."
The Hearing
7. For the appellant Ms Reid moved the grounds of appeal. She told me that the grant of permission to appeal does not restrict the appeal to article 8 ECHR grounds only. She adopted the terms of her skeleton argument and argued that the grant of permission to appeal may place emphasis on consideration of article 8 ECHR, but it does not refuse leave to appeal on the remaining grounds and does not specifically restrict the grant of permission to one ground only. Ms Reid relied on guidance note 2011 number 1 and Ferrer (limited appeal grounds; Alvi) [2012] UK UT00304 (IAC).
(b) Ms Reid told me that inadequate account of was taken of the appellant's age by the Judge, and that the Judge had not adopted a liberal application to the benefit of the doubt. She relied on KS (benefit of the doubt) [2014] UKUT 00552 (IAC), and argued that the Judge failed to explain why the appellant's young age does not account for inconsistencies in the evidence. She argued that the Judge placed inadequate weight on the objective background materials in reaching his conclusions.
(c) Ms Reid argued that the Judge's findings on the viability of return to Kabul are flawed. She told me that the Judge finds that the appellant can return to Kabul where his family can meet him and look after him, and that finding amounts to a finding that internal relocation is a viable option for the appellant. She told me that the Judge's findings in relation to undue hardship (Januzi (FC) v SSHD [2006] UKHL5) are inadequate, and told me that the Judge had conflated the test set out in Januzi with the test for a breach of article 3 ECHR.
(d) Ms Reid told me that the Judge had completely failed to consider article 8 ECHR. She told me that submissions had been made in relation to the appellant's private life. She conceded that the appellant could not succeed under the immigration rules but told me that she herself had made submissions that the circumstances of this case demonstrates sufficiently compelling circumstances to enable the Judge to consider article 8 out-with the rules. the Judge has made neither findings nor conclusions on article 8 ECHR grounds.
(e) Ms Reid urged me to allow the appeal and to set the decision aside.
8.(a) For the respondent, Mr Nath told me that the grant of permission to appeal was limited to article 8 ECHR grounds only and that the appellant does not have leave to move the remaining grounds of appeal. He told me that the grant of permission to appeal dated 22 September 2016 is in clear terms and carefully sets out the three grounds of appeal before finding that the first two grounds of appeal cannot be argued but the third ground of appeal (article 8 ECHR) can.
(b) Mr Nath took me to [14] of the decision where the Judge states (in the second sentence of that paragraph)
"I make allowance for his age"
He told me that at [14] the Judge clearly identifies the fact that the appellant is a minor, and then goes on to assess the appellant's evidence and every other source of evidence in the light of the appellant's young age. He told me that there was no merit in the criticisms made of the Judge's decision nor is there merit in criticism of the way the Judge approached the evidence of a minor.
(c) Mr Nath told me that the Judge carefully & correctly considered the possibility of return to Kabul. He told me that at [19] and [20] the Judge considered the correct country guidance and that the Judge's findings in fact, viewed against that country guidance, lead to the correct conclusion.
(d) Mr Nath told me that paragraphs 39 to 42 of the reasons for refusal letter detail the respondent's rejection of the appellants claim to have established private life in the UK. He reminded me that the appellant arrived in the UK in September 2015 and claimed asylum in November 2015. He told me that the appellant could not established a meaningful private life in the short time since his arrival in the UK, and that in any event is there was a dearth of evidence to support submissions made on article 8 ECHR grounds
(e) Mr Nath told me that the decision does not contain any errors material or otherwise. He asked me to dismiss the appeal and allow the decision promulgated on 22nd of August 2016 to stand.
Analysis
9. The terms of the grant of permission to appeal are set out in full at [6] above. In granting permission to appeal Judge Astle makes it clear that he considered all three grounds of appeal set out by the appellant in seeking permission to appeal. In the first sentence of [3] in the grant of permission to appeal he says
"I am satisfied that the Judge had proper regard to the appellant's age in considering his evidence."
That is a clear and unambiguous rejection of the first ground of appeal.
10. The second ground is that the Judge erred in finding that the appellant can return to Kabul. Judge Astle considered the second ground of appeal in the fourth sentence of [3] in the grant of appeal and clearly refuses permission to appeal on the ground.
11. It is in the final sentence of the grant permission to appeal that permission is given. It is clear from the use of the word "However" at the start of that sentence that Judge Astle treats the third ground of appeal differently to the first and second. The construction of that sentence makes it clear that permission is granted on article 8 ECHR grounds only.
12. In Ferrer (limited appeal grounds; Alvi) [2012] UKUT 00304(IAC) the Tribunal held that (i) In deciding an application for permission to appeal to the Upper Tribunal a judge should consider carefully the utility of granting permission only on limited grounds. In practice, such a limited grant is unlikely to be as helpful as a general grant, which identifies the ground or grounds that are considered by the judge to have the strongest prospect of success. (ii) Where the judge nevertheless intends to grant permission only in respect of certain of the applicant's grounds, the judge should make this abundantly plain, both in his or her decision and by ensuring that the Tribunal's administrative staff send out the proper notice, informing the applicant of the right to apply to the Upper Tribunal for permission to appeal on grounds on which the applicant has been unsuccessful in the application to the First-tier Tribunal; (iii) (3) If an applicant who has been granted permission to appeal to the Upper Tribunal on limited grounds only applies to the Upper Tribunal on grounds in respect of which permission has been refused, the Upper Tribunal judge considering that application should not regard his or her task as merely some form of review of the First-tier Tribunal's decision on the application; (iv) In the IAC the overriding objective of the Tribunal Procedure (Upper Tribunal) Rules 2008 is unlikely to be advanced by adopting a procedure whereby new grounds of appeal can be advanced without the permission of the Upper Tribunal under rule 5 of those Rules.
13. The President of UTIAC, issued a Guidance Note on permission to appeal under paragraph 7 of Schedule 4 to the TCEA 2007. It is not a source of law, nor is it intended to be "an authoritative statement of law" but "it is intended to promote consistent and high standards in making such decisions".
14. There is no ambiguity in the grant of permission to appeal, and this hearing is not an appeal against the grant of leave to appeal. Permission to appeal was granted on one ground only. The only competent argument placed before me relates to article 8 ECHR grounds of appeal.
15. In any event there is no merit in the putative first ground of appeal. What is argued is that the wrong standard of proof was applied because of the appellant's young age.
16. In KS (benefit of doubt) 2014 UKUT 00552 it was held that the proposition in paragraph 219 of the UNHCR Handbook, that when assessing the evidence of minors there may need to be a "liberal application of the benefit of the doubt" is also not to be regarded as a rule of law or, indeed, a statement of universal application. As a reminder about what the examiner should bear in mind at the end point of an assessment of credibility, the proposition adds nothing of substance to the lower standard of proof. If, for example, an applicant possesses the same maturity as an adult, it may not be appropriate to resort to a liberal application of the burden of proof.
17. The second putative grounds of appeal is that the Judge erred in finding that the appellant can return to Kabul because he took an incorrect approach to the concept of internal relocation and relied on article 15c jurisprudence.
18. In AK Afghanistan CG [2012] UKUT 00163(IAC) the Tribunal held that whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing "safety" and reasonableness") not only the level of violence in that city but also the difficulties experienced by that city's poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable.
19. In granting permission to appeal judge Astle found that the judge was correct to rely on the cases of AK and HK Afghanistan CG [2010] UKUT 00378 (IAC). The Judge's decision is brief, but on the facts as he found them to be he was correct to consider both AK and HK in assessing the viability of return to Kabul. The way the second putative ground of appeal is framed makes it clear that it is little more than a disagreement with the facts as the Judge found them to be. It is no more than an attempt to re-litigate the appellant's position on the basis of objective materials which the Judge did not find persuasive in the light of the ratio contained in both AK and HK.
20. The grounds of appeal refer to JA(Afghanistan) v SSHD in which permission to appeal to the Upper Tribunal has been given. Counsel for the appellant candidly told me that that case still awaits listing. In his decision, the Judge referred to the correct country guidance.
21. I find that the appellant does not have permission to appeal in relation to the asylum appeal or the humanitarian protection appeal. The Judge's decision in relation to those two aspects of the appellant's appeal therefore stands. If I was to consider the first and second ground of appeal, for the reasons given above I would find that they have no merit and would not succeed - so that the Judge's findings in relation to the asylum and humanitarian protection appeals stand.
22. In the notice of decision the Judge states
"The human rights appeal is dismissed"
Insofar as that notice of decision relates to articles 2 and 3 ECHR grounds, there is no error of law. It is true that the Judge does not specifically consider article 2 ECHR grounds, but as article 3 ECHR grounds cannot succeed, by analogy neither can article 2 ECHR grounds.
23. I consider the skeleton argument prepared for the appellant which formed the basis of argument before the First-tier. Article 2 ECHR grounds do not feature in that skeleton argument. At paragraph 34 of the skeleton argument there is specific reference to article 3 grounds. It is only at paragraph 11 of the argument that the words
"and killed"
appear at the end of the sentence dealing with article 3 ECHR. The Judge's record of proceedings does not record that a submission was made in relation to article 2 ECHR grounds.
24. There is no error of law in the Judge's treatment of the article 3 ECHR appeal, nor in the conclusions that the Judge reaches. The Judge's failure to specifically mention article 2 ECHR is far from perfect, but makes no difference to the outcome and so cannot be a material error of law. As I have already indicated the finding that article 3 ECHR grounds are not made out carries with it an implicit finding that article 2 ECHR grounds are not made out.
25. The Judge was, however, wrong to fail to consider the article 8 ECHR argument. That is an error but in the circumstances of this case it does not amount to a material error of law for the following reasons.
26. The Judge can only competently make findings of fact and draw conclusions from the evidence placed before him. The evidence is summarised at [10] of the Judge's decision. The appellant's evidence in chief was his witness statement dated 1 July 2016. I invited Ms Reid to consider the terms of the witness statement and she agreed that that witness statement does not offer evidence of private life within the meaning of article 8 of the 1950 convention. Ms Reid told me that it has never been argued that the appellant has established article 8 family life within the UK.
27. I return to the skeleton argument which was relied on before the First-tier. That skeleton argument contains 36 paragraphs spread over 10 pages. It is only at [32] that there is a suggestion of "private and family life". The first sentence of paragraph 32 of the skeleton argument says
"There is a clear risk that the appellant would not be able to lead a normal and respectable private and family life if returned to Afghanistan"
That is not an argument that private life has been established in the UK.
28. I turn to the Judge's record of proceedings, where the submission of counsel for the appellant is summarised as
'276 ADE appellant is under 18 and not here seven years. After going outside rules to consider his private life.'
29. Ms Reid accepts that the appellant cannot succeed under the immigration rules, and told me that her submission to the First-tier had been that in this case there are compelling circumstances which merit consideration of article 8 ECHR grounds outside the immigration rules.
30. I accept that that was the submission made by Ms Reid to the First-tier Tribunal, but the information before me indicates that the was no evidence to support that submission. The appellant's witness statement dwells on his asylum claim only. It is not suggested that the Judge has inaccurately summarised the evidence at [10] of the decision. It would have been helpful if the Judge had set out that the appellant fails to lead sufficient evidence to establish private life within the meaning of article 8 and so cannot succeed. The Judge did not and (as I have already indicated) that is an error.
31. To assess whether that error is material I consider the evidence and submissions afresh. It is conceded that family life within the meaning of article 8 does not exist for the appellant in the UK. It is conceded that the appellant cannot meet the requirements of paragraph 276 ADE of the rules.
32. In SS(Congo) and Others [2015] EWCA Civ 387 Lord Justice Richards said at paragraph 33
"In our judgment, even though a test of exceptionality does not apply in every case falling within the scope of Appendix FM, it is accurate to say that the general position outside the sorts of special contexts referred to above is that compelling circumstances would need to be identified to support a claim for grant of Leave to remain outside the new Rules in Appendix FM. In our view, that is a formulation which is not as strict as a test of exceptionality or a requirement of "very compelling reasons" (as referred to in MF (Nigeria) in the context of the Rules applicable to foreign criminals), but which gives appropriate weight to the focused consideration of public interest factors as finds expression in the Secretary of State's formulation of the new Rules in Appendix FM. It also reflects the formulation in Nagre at para. [29], which has been tested and has survived scrutiny in this court: see, e.g., Haleemudeen at [44], per Beatson LJ."
33. There is no reliable evidence of compelling circumstances in this case. The appellant is a 15-year-old boy who has lived with carers in England since he claimed asylum in November 2015, having arrived in the UK in September 2015. Since at least November 2015 the appellant has been going to school in the UK. Because of the paucity of evidence of the appellant's circumstances in the UK, those are the only findings of fact that I can make.
34. Nothing in the findings of fact made at [33] above can be said to be either a compelling or compassionate factor. There was insufficient material placed before the First-tier to enable consideration of article 8 outside the immigration rules.
35. If I were to remake the decision in this case my decision would be that the appellant's appeal is dismissed on article 8 ECHR grounds. The decision that the Judge made, promulgated on 22nd of August 2016, is that the appellant's human rights appeal is dismissed. That decision is correct in law. It would have helped all parties if the decision had been framed as
"The appeal is dismissed on article 2, 3 & 8 ECHR grounds."
36. The difference in wording does not amount to a material error of law.
CONCLUSION
No errors of law have been established and the Judge's decision promulgated on 22 August 2016 stands.

DECISION
The appeal is dismissed.

Signed Date 2 November 2016

Deputy Upper Tribunal Judge Doyle