Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03466/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 September 2016
On 24 November 2016

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

M A S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Hoshi, Counsel, instructed by Brighton Housing Trust
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a national of Afghanistan. He arrived in the UK on 11 May 2015 and claimed asylum on the basis that he feared forced recruitment by the Taliban. The respondent did not find his claim credible and on 22 November 2015 she refused to grant him asylum or humanitarian protection but, because the appellant was under 18 and there were inadequate reception arrangements in his country, she granted him DL. The appellant appealed. The thrust of the appeal made on his behalf was that he faced a real risk of persecution on return from the Taliban and independently of this he had a well-founded fear of persecution as a vulnerable unaccompanied minor. Among the materials submitted in support of his appeal was a psychological report from Alice Rogers dated 29 May 2016 and an expert report from Dr Giustozzi. In a decision sent on 22 June 2016 First-tier Tribunal (FtT) Judge E B Grant dismissed his appeal. She did not find credible the appellant's account of being at risk from the Taliban for much the same reasons as the respondent. In relation to Ms Rogers' report she did not accept its finding that the appellant was severely cognitively impaired, but did accept he was depressed and clearly traumatised and distressed by the separation from his mother and that "[t]here is no solution to this depression other than to reunite him with his mother and brother if they can be found". She added:
"In time he may adapt to being separated but at present it is clear he is hugely affected by the loss of his family by having been sent to the UK where he has leave to remain until he is 17."
2. At [20] the judge then addressed Dr Giustozzi's evidence:
"20. Dr Giustozzi's report makes it clear there are safe areas in Kabul. He also makes it clear the Afghan government has asked that there are no more returns at the present time. That cannot found a claim for asylum. Country Guidance caselaw indicates the appellant can be returned to Kabul and I find that he can be returned. There is nothing exceptional about his case. He is a young man missing his mother and he is very distressed but that does not found a claim for asylum. I hope for the appellant's sake his mother can be found and that he is soon returned to her. He is obviously not coping at all well without her. In the meantime his best interests under s55 are safeguarded through placement with a foster family."
3. The grounds of appeal were that the judge: (i) failed to provide any rational basis for attaching no weight to the psychological evidence; (ii) omitted to assess the appellant's protection claim on the basis of the accepted facts; (iii) failed to take into account the appellant's minority or apply the legal principles applicable to children's asylum claims; (iv) and failed in general to provide adequate reasons for dismissing the appellant's appeal.
4. It is unnecessary to analyse these grounds in detail because I am entirely persuaded that the judge fell into material legal error. The judge stated at [20] that country guidance case law "indicates the appellant can be returned to Kabul. There is nothing exceptional about his case." That was simply incorrect. The respondent accepted - and the judge did not find otherwise - that in Afghanistan there were there adequate reception arrangements for the appellant. Even though not accepting that the appellant was severely cognitively impaired, the judge clearly considered the appellant a vulnerable young man who was still a minor: see [16], [17]. Even if at [16] the judge seemed to regard the appellant's vulnerability as due simply to his calendar age, her acceptance at 17 that he was depressed and traumatised should have led her to conclude there was vulnerability in the broader sense. Contrary to what the judge asserts at [20], existing country guidance continues to consider that vulnerable young adults without adequate reception facilities are capable of succeeding in their asylum or humanitarian protection claim: see e.g. AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC). Furthermore, the background country information included a very recent report from Dr Giustozzi, which clearly considered that vulnerable young men would be at real risk of serious harm on return to Afghanistan. It would have been open to the judge to take a different view, on the basis of the evidence as a whole, but she simply left the matter to one side by virtue of her unreserved finding at [20] that being a very distressed minor "does not found a claim for asylum". Even if that had not been a fatal mistake, it was still incumbent on the judge to consider whether the appellant was eligible for humanitarian protection.
5. Whilst taken in isolation I have doubts that the challenge to the judge's treatment of the psychologist's evidence is made out I am equally unpersuaded (having found a material error of law on other counts) that I can preserve any of her findings of fact. Whilst it does seem to me (as it seemed to the judge) that the respondent had cogent reasons for rejecting the appellant's account of difficulties in his home area with the Taliban, her approach to assessment of the appellant's evidence also suffers from a failure to show that she took proper account of the need for a modified approach to assessment of the asylum claim of a minor, as required by paragraph 351 of the Immigration Rules. Accordingly the appellant's appeal needs to be considered afresh without preservation of any of the judge's findings of fact and that is most appropriately achieved by remitting the case to the First-tier Tribunal.

6. To summarise:
The FtT Judge materially erred in law.
The case is remitted to be heard by a FtT Judge other than E B Grant.
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

Dr H H Storey
Judge of the Upper Tribunal