Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03437/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 27 July 2016
On 18 August 2016

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

I K
(ANONYMITY DIRECTION MADE)
Respondent

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. 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.

Representation:
For the Appellant: Mr E. Tufan, Senior Home Office Presenting Officer
For the Respondent: Mr R. Halim, Counsel instructed by Tower Hamlets Law Centre

DECISION AND REASONS

1. For the sake of continuity I will refer to the parties as they were before the First-tier Tribunal although technically the Secretary of State is the appellant in the appeal to the Upper Tribunal.

2. The appellant appealed against the Secretary of State's decision to refuse a protection and human rights claim. First-tier Tribunal Judge Pears ("the judge") allowed the appeal in a decision promulgated on 25 May 2016.

3. In a lengthy decision the judge set out the background to the case [1-11] and the relevant legal framework [12-20]. In particular, he cited the whole of the headnote to the country guidance decision in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 [14]. He went on to summarise the appellant's claim and the arguments put forward by both parties [22-52]. The judge then took some time to outline certain aspects of the background evidence including the UNHCR eligibility guidelines published in April 2016 [53-62]. The judge comprehensively rejected the credibility of the appellant's account of past events [63-70] but noted that it was accepted that the appellant is an Afghan national who comes from Tagab district in Kapisa province [71]. He noted that the thrust of the respondent's case was that the appellant could relocate to Kabul [72].

4. Having set out the background to the case in some detail and made his credibility findings the judge made the following findings relating to risk on return:

73. I look at this case on the basis of the very limited facts which I am prepared to accept.

74. He is single and is a young man with no dependents and is now just over 18. He has shown himself to be resilient. He has no health issues. Given those are the only facts about him that I am prepared to accept I have also to accept several things which give him a profile that would put him at risk against the backdrop of the worsening security situation both in Kapisa province and within Kabul which the Appellant's counsel has set out and which I accept.

75. It seems to me that he has the following profile taken from the UNHCR guidelines that put him at risk and he falls within these risk categories

(3) Men of fighting age, and children in the context of underage and forced recruitment;
(6) Individuals perceived as contravening AGEs' interpretation of Islamic principles, norms and values;
(10) Children with certain profiles or in specific circumstances.

76. I set out (6) and (10) because, in my view he would be identified as westernised and would or could fall within those categories.

77. I find (as will be gathered that I do so with some reluctance) that the Appellant has shown a well founded fear of acts sufficiently serious by their nature or repetition as to constitute a severe violation of a basic human right. I find the Appellant to be a refugee."

5. The Secretary of State seeks to appeal the First-tier Tribunal decision on the ground that the judge failed to follow relevant country guidance. His reliance on the UNHCR guidelines was insufficient reason to depart from the country guidance.

Decision and reasons

6. After having considered the grounds of appeal and oral arguments I am satisfied that the First-tier Tribunal decision involved the making of an error on a point of law.

7. Despite having set out the detailed arguments earlier in the decision with reference to AK (Afghanistan) the judge was still required to give adequate reasons for departing from established country guidance. I accept the arguments put forward by Mr Halim, that the Tribunal's comments in NM and Others (Lone women, Ashraf) Somalia CG [2005] UKUAT 00076 allow for an analytical approach to what weight to put on evidence from UNHCR. In some cases UNHCR guidance may not be focussed on protection issues but in other cases it may need to be given greater weight. However, the judge was still required to give adequate reasons for preferring that evidence and for departing from the most recent country guidance.

8. It seems clear that the judge was persuaded by the arguments put forward by counsel, which he repeated in the body of the decision, but what is lacking is any reasoning as to why he accepted them or any adequate analysis as to why he considered the current evidence justified departing from the country guidance. While it is not necessary for a judge to make detailed findings in relation to each and every piece of evidence it is necessary to give sufficient reasons to understand how and why the main conclusions are reached: see MK (duty to give reasons) Pakistan [2013] UKUT 00641 and Shizad (sufficiency of reasons: set aside) [2013] UKUT 85. Unfortunately, in this case those reasons were simply lacking.

9. Both parties agreed that if an error of law was found that the appropriate course of action would be to remit the appeal for a fresh hearing before the First-tier Tribunal.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law.

I set aside the decision and remit the appeal to the First-tier Tribunal for a fresh hearing

Signed Date 17 August 2016
Upper Tribunal Judge Canavan