Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04057/2015

THE IMMIGRATION ACTS

Heard: At Manchester
Decision and Reasons Promulgated
On: 9 March 2017
On: 21 April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

AB
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

The Secretary of State for the Home Department
Appellant
And

AB
(anonymity direction made)
Respondent

For AB: Ms Sachdev, Bury Law Centre
For the SSHD: Mr Harrison, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. AB is a female Sikh from Afghanistan. On the 13th October 2016 the First-tier Tribunal (Judge T. Brown) dismissed her appeal on asylum grounds but allowed it with reference to Article 8 ECHR. The Judge rejected much of the factual account advanced by the appellant and found that the discrimination and harassment the appellant and her husband were likely to endure in Afghanistan did not, for adults, amount to serious harm. The position in respect of their little girl was however different. The Judge was satisfied that the cumulative impact of such discrimination and harassment, coupled with her inability to safely access education, would for a young child cross the threshold into persecution. He therefore allowed the appeal of AB – the only appeal before him – on the grounds that it would be disproportionate interference with her family and private life to remove her to Afghanistan where her dependent child would face persecution.

2. Both parties sought permission to appeal to the Upper Tribunal.

3. AB was granted permission to appeal on the 9th November 2016 by Designated Judge of the First-tier Tribunal J.G Macdonald, who considered it arguable that the Judge may have erred in law in his approach to credibility, and also on the ground that the appeal should have been allowed under the Refugee Convention, given the findings on the child.

4. On the same day Judge Macdonald refused to grant permission in the cross-appeal of the Secretary of State for the Home Department. The grounds were lengthy but in essence it was submitted that the Judge should not have considered the question of whether the child was a refugee at all, that the determination contained contradictory findings and that the Tribunal erred in its approach to Article 8 by failing to start with consideration of the Rules.

5. The matter came before me as an ‘error of law’ hearing on the 23rd January 2017. It was brought to my attention that the Secretary of State for the Home Department had renewed her application for permission to appeal to the Upper Tribunal but that application had not yet been considered. I therefore dealt with that renewed application as an oral hearing. The revised grounds were that the First-tier Tribunal had failed to apply the country guidance in respect of availability of education for Sikh children, and that the Tribunal had failed to make clear findings on whether the child would in fact be denied education, and whether the family would have sent their daughter to school in any event.

6. I granted permission in limited terms:

The Secretary of State challenges the decision to allow this appeal with reference to Article 8 on two grounds.

First, it is submitted that the determination makes contradictory findings about whether or not the child of the Appellant would face a real risk of persecution inter alia by being deprived of a right to education in Kabul. This point is arguable. The determination rejects, at 36, the evidence that the family have no access to resources in Kabul, yet at 44 appears to accept that they would not be able to send their daughter to private school. Permission is therefore granted on that ground. A related complaint is that the Tribunal has failed to make clear findings on whether the child would be sent to school absent any threat of discrimination. That point is not arguable given the finding at the opening of paragraph 441.

The second limb of the Secretary of State’s case was a broader assault on the Article 8 findings, with reliance placed on SS (Congo) [2015] EWCA Civ 387 (IAC) and the submission made that there was a failure to give adequate weight to the public interest. There is no arguable merit in these submissions. The test is whether there is a compelling case to grant leave outside of the Rules. If the Appellant has a very young child who faces a real risk of persecution, that test would unarguably be met, as the Respondent’s own guidance on Discretionary Leave indicates.

7. The matter was adjourned to enable Ms Sachdev to take instructions on the Secretary of State’s cross-appeal and to prepare a rule 24 response. The hearing resumed on the 9th March 2017 when I heard helpful submissions from both representatives.

8. There has been some delay in the promulgation of this decision, caused by IT failure. I extend my apologies to both parties.

Errors of Law

The Findings on Education

9. At paragraph 36 of its determination the First-tier Tribunal made the following findings:

“I am therefore not satisfied that it is reasonably likely that [the appellant’s husband’s] father was killed by the Taliban. Nor am I satisfied to the lower standard that [the appellant’s husband’s] father was violently killed at all. Nor am I satisfied to the lower standard that [the appellant’s husband] was subjected to repeated and threatening demands for money, nor a threat that the appellant would be kidnapped. Nor am I satisfied that the appellant and [her husband] funded a journey to the United Kingdom by transferring the ownership of their family shop so that they have no access to resources in Kabul. I have not been persuaded to the lower standard that the appellant and her family have no one they can rely on in Kabul. I find myself unable to accept their all account is reasonably likely in all the circumstances.”

10. It went on at paragraph 44 to say this:

“…I am satisfied having regard in particular to paragraph 94 of TG and section 8.8 of the Home Office Country Information and Guidance that there is at least a real risk that [AB’s daughter] would be unable to continue her education in Afghanistan beyond primary school level. I am satisfied that there is at least a real risk in light of the country information and guidance that the appellant and [her husband] would not have the resources available to them to send [their daughter] to a private school, assuming that there were a private school available, given their closures. I am satisfied to the lower standard that especially the young Sikh girl [the appellant’s daughter] would face a real risk of experiencing harassment and ill-treatment within the Afghan state school system (if it is reasonably likely that she was able to access the school system at all). Mr Jagadesham has satisfied me that it is reasonably likely that [the appellant’s daughter], having been exposed to the British education system, and having parental support to do so, would wish to continue her education beyond primary school level were she to return to Afghanistan, would be unable to do so and would thereby be deprived of receiving proper education, which is a fundamental element of personal identity”.

11. The Secretary of State submits that the findings at paragraph 44, that the family would not have the resources to pay for a private education (and thereby avoid the persecutory ill-treatment the child might face in the state sector), cannot be reconciled with those made at paragraph 36, that the family still have some resources in Kabul. Although I considered this point sufficiently arguable to merit a grant of permission, having heard full argument I am not persuaded that the findings are as contradictory as claimed. Upon reading the determination as a whole I am satisfied that these were two distinct findings. It was not accepted, as alleged, that the family would be destitute if returned to Kabul, but on the other hand the Tribunal accepted that their means would fall short of being able to fund a private education. That was a finding open to the Tribunal on the evidence before it, and was consistent with the country guidance to the effect that Sikhs in Afghanistan can face considerable socio-economic challenges: TG and others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 595 (IAC). The finding that no private education at all would be available beyond primary level was also one open to the Tribunal on the basis of the country guidance [at 94]:

“In relation to Sikh and Hindu children a number of areas of concern arise from the evidence we have been asked to consider. The evidence indicates that there have been occasions of Hindu and Sikh families not sending their children to school in Afghanistan, especially girls, as a result of the fear of harassment and ill-treatment which is corroborated by the evidence. Within the state system where children of all denominations are taught there is evidence of requirements to learn and recite the Koran, discrimination, and lack of adequate education facilities. In areas where numbers warrant, such as Kabul, special schools have been set up to provide education for children by Sikh teachers and some children are taught within the Gurdwara as a result. Such education is only provided however up to and including primary level with the requirement that at secondary level children will be taught within the state system where they become exposed to problems referred to in the evidence unless an individual's family has the means to pay them to be educated privately. If credible evidence is provided of a real risk of such ill-treatment and harassment to a child on return sufficient to prevent them receiving a proper education, which is shown to be a fundamental element of their personal identity, that they wish to pursue, rather than a child not being further educated as a result of the traditional belief that they will continue within a family business and therefore do not require to be further educated or for some other reason, then this may amount to such serious discrimination either on its own or cumulatively with other forms of discrimination such as to cross the threshold of persecution. However, this is a fact sensitive issue that must be considered in each case.”

12. I am satisfied that there was no contradiction in the findings of the First-tier Tribunal and that the ground is not made out. The Secretary of State for the Home Department’s appeal is accordingly dismissed. The finding that the child would face persecution was logically capable of supporting a finding that the removal of her mother – and primary carer – would be disproportionate. The decision of the First-tier Tribunal to allow the appeal on human rights grounds is upheld.

Refugee Status

13. The central ground of appeal brought by AB was that her appeal should have been allowed on asylum grounds, because of the finding on her daughter. Ms Sachdev submitted that since the child was named as her dependent, she was in effect a party to the appeal, and that the finding on her risk of persecution should have been extended to cover her parents. Ms Sachdev placed reliance on the opening sentence in the decision of the Upper Tribunal in JA (child -risk of persecution) Nigeria [2016] UKUT 00560 (IAC): “This appeal is made against the decision of the Secretary of State to refuse an asylum claim by the appellant effectively on behalf of her son who suffers from albinism, he being now 7 years old”. She submitted that this was authority for the proposition that an adult, not otherwise found to be at risk, can be recognised as a refugee where the risk of serious harm has been made out in respect of her child. Ms Sachdev further drew an analogy with the approach taken to Article 8 family life in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39.

14. I am unable to derive any assistance from the decision in JA since the Tribunal does not explain why, in that case, the mother’s appeal was allowed on the basis of harm caused to her son. The difficulty with the Beoku-Betts argument is that persecution of the individual is a wholly different matter from the evaluation of family life, which by its nature, involves an assessment of the relationships of at least two persons. The ratio of Beoku-Betts was that it would be illogical to exclude from consideration the impact of removal upon other family members. It is not clear how that principle could be extended into the realm of refugee law, save in one very particular circumstance: I can readily accept that in certain circumstances the persecution of a child will result in serious harm to a parent. In CA v Secretary of State for the Home Department [2004] EWCA Civ 1165 a mother’s witnessing of her baby’s death by AIDS was held to be a breach of Article 3. Had the First-tier Tribunal found that the psychological stress caused to AB by watching her daughter face persecution would amount to “serious harm”, then the appeal should have been allowed on that footing. That was perhaps the finding made, at an earlier stage, in JA, but that was not the finding made here. On the contrary the Tribunal made very clear findings as to why neither AB – the sole appellant - nor her husband were at risk of persecution. Had the Tribunal purported to allow the appeal of AB on refugee grounds in these circumstances, it would have been an error of law. I am not satisfied that this ground is made out. I should add that there is no prejudice to the child, since as Mr Harrison acknowledged, the Secretary of State cannot now go behind the undisturbed findings of the First-tier Tribunal, and she will have to be granted refugee status (assuming that there is no onward appeal from this decision).

The Findings on Past Persecution

15. At paragraph 29 of the determination the Judge found AB’s account of how the family paid for their departure from Afghanistan to be implausible. She and her husband had claimed that they had signed over the family business to an agent. This was rejected because the Judge did not consider it credible that they would do so without at least considering the worth of the stock/business or whether they could sell it on the open market. They would at least have considered whether they were getting their monies worth in the trade of passage for the business. Ms Sachdev argued that this amounted to an error of the sort discussed in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037. She submitted that courts should be slow to characterise the actions of someone in another culture and context as “implausible”. Similarly the Judge is said to have erred at paragraph 27 when he found it to be unlikely that the family business would have been left unmolested if it had been left unattended for a year following the death of AB’s father-in-law.

16. Reading the determination as a whole I am not satisfied that there has been any error in approach here. The evidence given was that this was a business owned by the family. They had been targeted by the Taliban who had threatened AB’s father-in-law, the original proprietor of the shop. He was subject to extortion and eventually killed. The Tribunal considered this evidence and drew the following conclusions. The shop was the subject of the Taliban’s interest: “the appellant’s father-in-law told the appellant that the Taliban targeted him but not other shops” [at 13 (iii)]. They wanted money. It therefore made no sense that they lost interest in the shop after the death of the proprietor. This was a family who had, by their account, decided to leave their country of nationality after many years of harassment and abuse. It therefore made no sense that they would simply sign over their only asset to an agent without attempting any valuation of its worth. I am satisfied that these were findings open to the Tribunal. The reasoning is clear and the inferences logical.

17. The second ground advanced on behalf of AB is that the Tribunal made a mistake of fact amounting to an error of law. At paragraph 25 of the determination the Tribunal was considering an explanation for a discrepancy in the evidence. The discrepancy had been accounted for on the basis that AB knew more about the business than her husband. The conclusion is reached: “I do not consider it plausible that the appellant would know more about [the shop] than [her husband] where her case is that women were not included in discussions about business affairs”. Ms Sachdev submitted that this was a misrepresentation of the evidence because AB had consistently claimed that her husband played little part in the family business and that her father-in-law had in contrast discussed business affairs with her. For instance, at Q98 of her asylum interview she said that her father had told her about the Taliban demands, and at Q102 he told her that he had reported them to the police.

18. Although AB had claimed to have had those conversations with her father-in-law I am satisfied that this was manifestly a finding open to the Tribunal. AB’s husband had claimed to have worked in the shop himself: see paragraphs 9 & 16. AB had claimed not to have any knowledge of the business. At Q6 of her asylum interview she was asked “where did you buy supplies of clothes” to which she replied “my father-in-law used to buy it. I don’t know”. At Q7 she was asked “how long did you and your husband run this shop?”. She replied “I don’t know because the shop was running before I came to the family. The shop was run before by my father-in-law and my husband. Father-in-law was killed 1 and half years ago – so it was then run by my husband alone”. If any clarification were needed, she was asked “how many years have you personally been involved in running the shop”? AB told the officer: “I have never been involved in running the shop, my husband does everything”. She goes on to say that she stayed at home doing housework and cleaning and at Q13 that she was unable to say where the clothes in the shop came from because “in that country women don’t have the power to take part in anything”. In her submissions Ms Sachdev said that she had “no idea” what evidence the Judge had based his findings on. The answer, it would seem, is the asylum interview.

19. At paragraph 24 the First-tier Tribunal noted the discrepancies in the evidence about who took the family out of Afghanistan to Pakistan. AB’s husband had identified a friend of the family, Karim Khan as being the person. AB herself had said that it was a friend of her father-in-law who had brought the family to the UK. Elsewhere it was suggested that an agent took them. Ms Sachdev submitted that there was no discrepancy: Karim Khan is a friend of the family who arranged their passage. He is referred to as the ‘agent’ not by the witnesses, who gave their evidence in Punjabi, but by either the Immigration Officer who took the notes, or the interpreter. She submitted that there was procedural unfairness in this point being taken. Had the matter been put to either AB or her husband they would have had an opportunity to clarify. I accept that this ground has some merit. The witnesses have both consistently made reference to this man Karim Khan and I accept that had the Tribunal sought clarification, its concerns may have been allayed. I am however unable to find that this single error is such that the asylum decision should be set aside. That is because it relates to only one part of the overall findings, which were comprehensively in the negative. I am quite satisfied that the decision of the Tribunal would have been the same, even if AB had been given the opportunity to clarify that matter.

Decisions

20. The appeal of AB is dismissed. The decision of the First-tier Tribunal to dismiss her appeal on asylum grounds is upheld.

21. The cross appeal of the Secretary of State for the Home Department is dismissed. The decision of the First-tier Tribunal to allow the appeal on human rights grounds is upheld.

22. The First-tier Tribunal made a direction for anonymity which remains in force.

Upper Tribunal Judge Bruce
17th April 2017