Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04255/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision Promulgated
On 27 March 2017
On 24 April 2017

Before

Upper Tribunal Judge Southern

Between

S. O.
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Iqbal, counsel instructed by J D Spicer Zeb, solicitors.
For the Respondent: Ms A. Fijiwala, Senior Home Office Presenting Officer

DECISION
1. The appellant is a citizen of Afghanistan from Laghman Province who is 17 years old and so is to be treated as a child. He will be 18 years old in November 2017. The issue that arises to be addressed is whether he can safely and lawfully be returned to Kabul as a 17-year-old child. As we shall see, it is the respondent’s case that it is reasonable to assume that his mother, presently living in Pakistan, would travel to Kabul to meet him there so that he would not be, to borrow the vocabulary of the current country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) “unattended” by any parent or other adult relative. The appellant, though, insists that his mother will not, and cannot be expected to, return to Afghanistan from Pakistan, where she has been living for some years with the appellant’s two younger siblings, and so he will have no family or other social support in Kabul, or indeed in his home area in Laghman Province should he return there. As he left Afghanistan when aged 9 or 10 years old and has no relatives remaining in Afghanistan, he has no remaining connection with any part of his country of nationality.
2. As was confirmed specifically at paragraph 11 of the reasons for refusal letter of 15 April 2016, there are no plans to return the appellant to Afghanistan while he remains a child. Despite that, he is of course entitled to have what is, therefore, a hypothetical assessment of risk should he be returned now to Kabul, the intended destination of removal, while still a child.
3. This appeal last came before me on 13 January 2017, the appellant having been granted permission to appeal against the decision of First-tier Tribunal Geraint Jones QC. who had dismissed his appeal against refusal of his asylum and human rights claim. For the reasons set out in a decision promulgated on 18 January 2017, I found that the judge had made an error of law that was material to the outcome and so his decision to dismiss the appeal was set aside to be made afresh by the Upper Tribunal.
4. Before embarking upon that task, it is helpful to reproduce the following extract from my earlier decision:
The parties are, of course, well aware of the detail of the appellant’s claim but, for present purposes, the following summary will suffice.
The appellant, who is a citizen of Afghanistan born on 1 November 1999, said that he had left Afghanistan when he was 9 or 10 years old and lived with his mother in Pakistan until July 2015. With the assistance of an agent he travelled through a number of European countries before arriving in the United Kingdom on 15 September 2015, concealed in the back of a lorry. He claimed asylum about a month later. His claim was founded upon the assertion that he had come to the adverse attention of the Taliban in his home area in Laghman Province before leaving Afghanistan, having been kidnapped by them on his way home from school and having been taken to a Taliban training camp, so that he would face continuing adverse interest on return. He explained that his father had also experienced difficulties with the Taliban when they sought to recruit him and he had fled from Afghanistan 10 years ago. Although the appellant has had no contact with his father, he believes him to be in the United Kingdom. The appellant described how, in Pakistan, he and his mother experienced continual difficulties from the authorities, who often demanded money for not sending them back to Afghanistan. He said that there was no place within Afghanistan, including Kabul, to which he could safely return.
At the date of the appeal hearing before Judge Jones QC the appellant was 16 years 11 months old and so still a minor. The judge dismissed the appeal because, for the reasons set out in his judgment, he did not believe to be true any part of the appellant’s account of the experiences and difficulties upon which he relied in advancing his claim to be at real risk of persecution on return to Afghanistan. The judge said:
“I do not accept that the appellant would be of even the remotest interest to the Taliban and/or the Afghan government, if he returned to Afghanistan, there is no basis for concluding that the appellant would be at risk of persecution and/or suffering inhuman and degrading treatment if he returned to Afghanistan and chose to reside in that country or, at the very least, in Kabul…”
It is common ground and agreed between the parties that the judge did indeed make an error of law that was material to the outcome of the appeal. That is because, having rejected the appellant’s factual account, the judge failed to engage with two significant matters when assessing risk on return in the light of the current country guidance in AA (Unattended children) Afghanistan CG [2012] UKUT 016 (IAC), those being that the appellant was still an unaccompanied minor, both parents having left Afghanistan and that, as there was no evidence of other family members in Afghanistan, he would be a child returning to Afghanistan with no parental or other family support.
The parties are plainly correct to agree that amounts to a material error of law and so I need say no more about that. For that reason alone, it is established that the decision to dismiss the appeal cannot stand and the appeal will have to be determined afresh.
5. The appellant had advanced two other grounds of appeal but neither were established. Those grounds challenged the adverse credibility findings made by Judge Jones but, as those challenges have failed, the finding made by the judge that the appellant’s account of being kidnapped and of his father facing forced recruitment to the Taliban are preserved. Therefore, the assessment to be carried out is on the basis that neither the appellant nor any member of his family has had previously any adverse experiences at the hands of the Taliban or anyone else before leaving Afghanistan.
6. It emerged in evidence that it is not correct to say that the appellant has had no contact at all with his father. He explained how he discovered the address at which his father is living in Bristol, this being provided by a family friend with whom he is in contact, and that after his attempts to call upon his social worker to establish contact with his father had failed, he decided that he would himself travel to Bristol. That was in April 2016, some 11 months ago. The appellant said that when he arrived at that address his father opened the door but on seeing the appellant, his son, closed the door immediately so that there was no conversation or any other exchange between them. There has been no contact between then since then.
7. The appellant said, both in his recent witness statement and in his brief oral evidence before the Upper Tribunal, that he believes his father has mental health problems. But there is no evidence of that. The appellant’s social worker made enquiries but the “mental health providers” have no record of assisting any person giving the address at which the appellant has established that his father is residing. The social worker recently sent a letter to the appellant’s father but that was returned undelivered. Therefore, it is not clear whether the person said by the appellant to be his father continues to reside at the address at which the appellant sought to visit him 11 months ago. The respondent has no information to offer about the person named by the appellant as his father and there is no information, in particular, of his present immigration status, if he is in fact present in the United Kingdom as described by the appellant.
8. The respondent does not challenge the appellant’s account of having moved with his mother and siblings to Pakistan when he was 9 or 10 years old, nor that she remains in Pakistan with the appellant’s younger brother and sister. The respondent does not, though, accept that it has been established that the person the appellant sought to visit in Bristol is his father, or that the appellant’s father is not in Afghanistan, even if his whereabouts are unknown or undisclosed.
9. Thus, if it is accepted that the appellant’s father is, as the appellant claims, in the United Kingdom having moved here after leaving Afghanistan 10 years ago, whether or not he has the mental health problems asserted by the appellant and even if he is a person present in the United Kingdom who requires leave to remain but does not have it, it is plainly apparent that the appellant’s father cannot be regarded as a source of support for the appellant should he now return to Afghanistan.
The appellant’s evidence.
10. For the purpose of this hearing the appellant has provided both written and oral evidence. In his recent witness statement, signed on 6 March 2017, the appellant explained that it was a friend of his father’s, Mr Janat Gul, who had informed him of his father’s address in Bristol. The appellant said he had been in contact with Mr Gul since he, the appellant, had been in Pakistan. Since travelling to visit his father in April 2016 the appellant has had no contact with his father. In his oral evidence, he said that Mr Gul ran a shop and worked also as a taxi driver. He was, therefore, very busy which is why he had been unable to attend to give evidence or to provide written evidence.
11. In his witness statement, the appellant said that he maintains regular contact with his mother in Pakistan, speaking with her on the telephone every week. His mother had told him recently that she has been told that she will be allowed to remain in Pakistan only until the winter season in Afghanistan ends in March and he did not know what would happen to her after that. However, in his oral evidence he said that she would, if necessary, move to a different area of Pakistan but would not return to Afghanistan. He said that his mother works as a tailor in Pakistan. His brother, who is 12 years old, also works and so contributes to the family income.
12. Although in his witness statement the appellant said that his mother had distant relatives in Afghanistan, when asked about this he said that their whereabouts were unknown and his mother was not in contact with them. He insisted, again, that if he were returned to Kabul, she would not return to Afghanistan to meet him but would remain with his brother and sister in Pakistan.
Submissions for the respondent.
13. Ms Fijiwala opened her submissions by expressing reliance upon what was said in the decision letter of 15 April 2016. Much of that is concerned with the specific protection claim advanced by the appellant but, as that part of the appellant’s case has fallen away, we are no longer concerned with that aspect of the decision. Although the decision letter discusses issues of sufficiency or protection available from the authorities in respect of the risks posed by the Taliban and the availability of an internal relocation option, this decision does not really engage with the remaining issue to be addressed, which is the appellant’s vulnerability as an unaccompanied minor being returned to Kabul with no social support network to call upon and no parental or other adult relatives to look to for help in re-establishing himself on return.
14. Ms Fijiwala submitted that it was not established by the evidence that the person the appellant said he visited in Bristol was in fact his father. A letter sent to him by the appellant’s social worker had been returned undelivered, an enquiry made of mental health providers indicated that no one living at that address was in receipt of services, Mr Gul, who has said to be a long-standing friend of the appellant’s father and to have acted over the years as a conduit of information between the appellant and his father was not called to give evidence and did not even provide a letter of support for the appeal. For these reasons, Ms Fijiwala invited the Tribunal to conclude that this person, described only in the evidence of a person, the appellant, whose evidence had been found not to be truthful in other respects, was not reliable so that it did not establish that the appellant’s father was in the United Kingdom. Therefore, she submitted, the Tribunal should proceed on the basis that, as a citizen of Afghanistan, he remained in his country of nationality and so was available to provide parental support for the appellant upon his return.
15. As for the appellant’s mother, Ms Fijiwala relied upon the following observation made at paragraph 89 of AA in support of her submission that it was reasonable to expect that the appellant’s mother would travel to Kabul to meet him on return, so that he would not be returning as an “unattended child”:
“”… It is to be noted that in HK and Ors the UT found that the three appellants had not lost contact with their families and that they could not therefore be regarded as unaccompanied children on return to Kabul, there being no reason to believe that their relatives would not be able to meet and accompany them. As the UT put it at paragraph 49 of the determination “none of these boys is an orphan and none is without family in Afghanistan.””
It must be observed though, that in making those comments Blake J referred specifically to the fact that each of the three appellants in HK had adult relatives living in Afghanistan, whereas this appellant’s case is that his father is in the United Kingdom, unable or unwilling to assist him and his mother is resident in another country, Pakistan. Ms Iqbal submitted that this was a distinction of importance.
16. Next, Ms Fijiwala took me to the country evidence relied upon by the respondent. At para 6.1.1 of the Home Office Country Information and Guidance on Afghanistan, published in August 2015, it is noted that in the first quarter of 2015 over 12,000 Afghan refugees had returned from Pakistan and Iran under UNHCR’s assisted return program and that the “driving factor” for nearly 60% of those returnees that were interviewed was the improvement in the security situation. She submitted that it was of particular relevance that the appellant’s mother worked in Pakistan as a tailor and, as has been confirmed in a recent (February 2017) report by Human Rights Watch, UNHCR continues to provide “limited material assistance for their return”.
17. Earlier in the Home Office report of 2015, at para 2.4.5. detail is provided of the support provided to involuntary returnees from the United Kingdom:
“Decision makers should also take into account that all individuals who are returned to Afghanistan by the UK are offered support in re-establishing their lives, whether or not they applied for an Assisted Voluntary Return whilst in the UK… or whether they had enforced return. The International Organization for Migration (IOM), provides the reintegration provision as part of the UK Government’s reintegration programme for all returnees. The IOM’s reintegration support for enforced returns is available for up to three months after an individual’s return and up to six months for an assisted voluntary return.”
18. Ms Fijiwala accepted that the Court of Appeal had subsequently recognised, in March 2016, that the country situation had deteriorated, but she emphasised that the court continued to hold that there was no Article 15C risk: R (HN & SA (Afghanistan)) v SSHD [2016] EWCA Civ 123.
19. Next, Ms Fijiwala addressed the current applicable country guidance provided by AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC). The hearing of that appeal concluded as long ago as May 2011 and it was published in 2012, some five years ago. But it stands as country guidance and is to be followed and applied absent fresh evidence being provided to justify or require a departure from it.
20. The guidance provided by AA is distilled into the head note which is as follows:
(1) The evidence before the Tribunal does not alter the position as described in HK and Others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), namely that when considering the question of whether children are disproportionately affected by the consequences of the armed conflict in Afghanistan, a distinction has to be drawn between children who were living with a family and those who are not. That distinction has been reinforced by the additional material before this Tribunal. Whilst it is recognised that there are some risks to which children who will have the protection of the family are nevertheless subject, in particular the risk of landmines and the risks of being trafficked, they are not of such a level as to lead to the conclusion that all children would qualify for international protection. In arriving at this conclusion, account has been taken of the necessity to have regard to the best interests of children.
(2) However, the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.
21. Therefore, there must be a careful assessment of the individual characteristics of this particular appellant and how those will equip him to avoid the range of risks to which a child returned to Kabul may face. Ms Fijiwala emphasised the following matters: There is in general no Article 15C risk in Kabul; the appellant has been disbelieved as to his account of the reasons why he is at risk from the Taliban; there is no evident real risk of him being forcibly recruited to the Taliban; there was nothing to suggest that he in particular would be vulnerable to sexual exploitation and he was nearly 18 years old. By comparison, the appellant in AA had been found to be credible in his factual account and also had mental health difficulties.
22. The Tribunal must, of course, have regard to the best interests of this child, which are to be a primary consideration. Ms Fijiwala submitted that his best interest would be served by being reunited with his mother who, in her submission, can reasonably be expected to return to meet him in Kabul.
23. In her submissions, Ms Fijiwala placed considerable reliance upon a recent publication by the IOM carrying the title: “IOM, European Commission to Support Returnee Reintegration in Afghanistan”, this being published very recently on 14 March 2017. This opens with the announcement:
“Afghanistan: IOM has launched a four-year, Eur 18 million project… to support returnees and host communities across Afghanistan.
The project will help foster sustainable reintegration by promoting economic development in communities of high return, building the capacity of government bodies working on migration and providing post-arrival assistance for returnees. Communities in Kabul, Herat, Nangarhar, Balkh, Kandahar, Baghlan, Uruzan and Laghman will be targeted.
“Our joint collaboration under this project marks a critical and much needed step towards providing longer-term, sustainable income-generating solutions and livelihoods for returnees,” said Laurence Hart, IOM’s Chief of Mission and Special Envoy in Afghanistan, speaking at today’s signing event in Kabul””
Ms Fijiwala drew attention to the focus of this project, said to be to include small scale infrastructure and income generating projects and the creating of training initiatives and skills development activities. There would be counselling and information provision for the assistance of returnees and efforts would be made to bolster “post arrival reception assistance” for returnees from Europe with funding to assist 2,000 returnees.
24. The importance of this new evidence, submits Ms Fijiwala, is that it indicates that funding would be available to assist the appellant on his return from Europe and there is no reason why he would not be able to take advantage of that assistance.
25. Next, Ms Fijiwala addressed a report published by IOM in 2014, “Afghanistan Migration profile”. The purpose of this report is said in its forward to be to provide a clearer understanding of Afghan migration dynamics and the intention was indicated to update it regularly “so that it continues to provide a solid basis for developing migration policies and programmes in and for Afghanistan”. If it has been updated since publication 3 years ago, neither party has referred to that. However, the material drawn from this report by Ms Fijiwala includes that “returnees from Western countries reported better reintegration outcomes compared to returnees from neighbouring states… such as Pakistan” and that the majority of returnees “feel well integrated in Afghanistan and are happy to have returned to their cultural environment, despite the challenges”. Ms Fijiwala pointed out that this report does not distinguish between children and adults.
26. Ms Fijiwala closed her submission by emphasising that the appellant had travelled alone from Afghanistan and, although had initially the assistance of an agent, had no such support while making numerous attempts to cross to the United Kingdom from Calais. He is, she argued, plainly a mature 17-year-old, as evidenced by his having travelled alone to Bristol to meet his father, after his social worker had failed to make arrangements for them to meet. For all of these reasons, she invited me to dismiss the appeal. It is hard, though, not to detect tension between the respondent’s position that the appellant did not attempt to visit his father in Bristol and reliance of the fact that he did to establish his level of maturity.
Submissions for the appellant
27. Ms Iqbal criticised the respondent for failing to take any proper steps to “trace” the appellant’s father. His address had been supplied and Mr Gul had offered to assist in facilitating the process of reuniting the appellant with his father. The point, I think, is that even if the letter sent recently by the social worker was returned undelivered, one explanation for which would be that he had moved address, Mr Gul had offered to facilitate contact and so would be able to assist with any attempt to locate the appellant’s father. There is no information concerning the immigration status of the appellant’s father, although that, she submitted, would be known by the respondent. The fact of the matter is that the appellant had identified that his father was present in the United Kingdom and had done all he could to establish contact after his attempts to do that through his social worker had failed. Given the inaction of the respondent, an interpretation of the facts relating to the appellant’s father unhelpful to the appellant should be resisted.
28. As for the appellant’s mother, it is not in dispute that she is living in Pakistan and has been for many years. The assumption made by the Upper Tribunal in AA that parents would travel to Kabul to meet a child being returned there did not extend to cross border movements. Ms Iqbal submitted that as the appellant’s mother had established herself in Pakistan, where she had been living for about 7 years, and had been working as a tailor to earn an income with which to support the appellant’s two younger siblings who are living with her, even though not secure in her resident status, it would not be reasonable to expect that she should give up such security she had established for herself and her sons to come to Kabul to provide support for the appellant, her eldest son.
29. Responding to Ms Fijiwala’s submission on the significance of the IOM report, “Afghanistan Migration Profile” published in 2014, Ms Iqbal pointed out that this report was based upon data and information collected between 2008 and 2012 and so even though the report was not published until 2014, it was based upon information that was by then already up to 6 years old. Ms Iqbal invited the Tribunal to have regard to the more recent report of the country expert, Mr Tim Foxley, dated 16 August 2016. He recorded, at para 20 of his report, that the World Food programme had observed:
“Afghanistan faces enormous recovery needs after three decades of war, civil unrest and recurring natural disasters. Despite recent progress, millions of Afghans still live in severe poverty with a crumbling infrastructure and a landscape that is suffering from environmental; damage. This rugged, landlocked country remains one of the poorest in the world, with more than half the population living below the poverty line.”
30. Mr Foxley described Laghman Province, where the appellant had lived before being taken to Pakistan when he was 9 or 10 years old, as an area that was judged to be “a Taliban attack and support zone”. At para 66 of his report, Mr Foxley observed:
“… there will be next to no support for him as a vulnerable young person in Kabul (let alone the rest of the country), be it medical, educational or emotional: certainly not of the level he will have experienced in the UK. Your client is a young man, seemingly with little or no understanding of his home province, let alone Kabul and the wider Afghanistan…”
31. Next, at para 67, Mr Foxley discussed the now familiar report of 2016, “After Return: documenting the experiences of young people forcibly removed to Afghanistan” that enquired into what became of 25 young Afghans after being returned to Kabul. It was found that previously existing support networks had disappeared, or become weakened or fractured, and:
“… For the vast majority of young returnees, continuing their education in Afghanistan has proved impossible… Without strong personal networks and connections, finding sustainable work has been almost impossible…”
He continued, at para 68:
“In Kabul, your client is likely to experience significant difficulties, given his lack of experience living in Afghanistan on his own and the time he has now spent in the UK. If he is unable to link up with his family there will be no support network for him, no dependable social safety net and the price of failing to get a job would be either begging or being recruited into some form of illegal activity- narco-trafficking (or narco-use) or insurgency related. He will have no “street” experiences of Kabul: his environmental and situational awareness; safe places, “no go” areas, how to condition his behaviour to avoid unwanted attention, will be severely limited. In Kabul, attracting “unwelcome attention” might mean involving “trigger happy” or corrupt local security forces, criminals or insurgent groups looking for human assets to employ in their campaign and would contain significantly greater risk than in the UK. These broad risks would just as easily apply in Laghman province, Kabul or the wider Afghanistan.”
And at para 73, having reviewed a number of sources of information:
“Young and vulnerable men without regular employment or reliable accommodation will be at high risk of exploitation, be it criminal, narcotic or sexual…”
Finally drawing together his conclusion at para 89 of his report:
“… Although his profile suggests that the Taliban are perhaps unlikely to target him anywhere outside his home area, without a family support net in Kabul he is likely to struggle to establish himself anywhere. Kabul has many difficulties with an overstretched infrastructure and remains subject to regular attacks by the Taliban. There are risks to your client from this direction but these are perhaps of a lower order to the stresses, impact and implications of an unaccompanied return. This will be exacerbated by his lack of awareness of the country he left as a child, and compounded by the dearth of resources (including family and friends) available to help him find accommodation, employment, security, mental, emotional and other forms of support.”
32. This serves to establish, in Ms Iqbal’s submission, that as an unattended child returned to Kabul, the appellant is a member of a particular social group and, given his particular circumstances, has a well-founded fear of persecution on account of his membership of that particular social group.
Discussion
33. I first make clear my findings of fact that are to form the basis for the decision to follow. I am satisfied that the appellant has established to the standard required that his father is indeed living in the United Kingdom. I accept his account of having obtained his father’s address in Bristol and of having sought the assistance of his social worker in re-establishing contact. It is entirely understandable that the social worker would want to enquire into the safety of making those arrangements, given her responsibility for the appellant’s welfare. Although the absence of any evidence from Mr Gul is troubling, and does not assist the appellant, I am satisfied that the appellant’s account of his visit to Bristol is one that is to be accepted. Therefore, for whatever reason, it is plain that the appellant’s father has no wish or intention of playing any continuing role in the appellant’s life.
34. Given the absence of any information from either party concerning the immigration status of the appellant’s father, it cannot be assumed, at present at least, that the appellant’s father is presently removable to Afghanistan. As the evidence indicated that he left Afghanistan ten years ago, there is no reason at all to suppose that he would now choose to return there voluntarily. Therefore, he cannot be regarded as a possible source of support for the appellant upon return to Kabul, even if the asserted mental health difficulties are not established.
35. As for the appellant’s mother, the position is similar. She left Afghanistan and moved with the appellant to Pakistan when he was 9 or 10 years old and she has remained in Pakistan ever since. Although she has secured no lawful basis of stay and the appellant’s evidence is that she has been told that she will have to leave at the end of March, his evidence is also that she has continually faced such pressures but successfully resisted them for years. If she is required to move, it would be to another area in Pakistan and not back to Afghanistan. As she has established a livelihood that has enabled her to support the appellant’s two younger siblings, it is not at all difficult to accept that she would not be willing to give up the way of life she has established in Pakistan for her two youngest children and to move to Kabul for the benefit her eldest son.
36. I reach this conclusion not on the basis that the presumption articulated by the Tribunal in AA that a parent would travel to Kabul to meet and support a returning son does not apply to cross border movements, but because of the overall circumstances in play.
37. Therefore, the appellant’s position on return falls to be assessed on the basis that he will be returning as an “unattached” child with no other social or family support. It is important to recognise that does not in itself establish that he is entitled to international protection. In HK (Afghanistan) and ors v SSHD [2012] EWCA Civ 315 it had been argued that in LQ (age; immutable characteristic) Afghanistan [2008] UKAIT 0005 the Tribunal had found that there would be no adequate reception facilities for an orphan child and in those circumstances he would be at risk of exploitation and ill-treatment. However, approving the subsequent country guidance case of AA, discussed above, the Court of Appeal was in no doubt that LQ was not authority for the proposition that a person returning as an unaccompanied child was on that basis alone entitled to succeed in a protection claim. Per Elias LG, commencing at para 36:
“I would add that even had the Upper Tribunal found that there were no family members who could receive these children in Afghanistan, it would not necessarily follow that they could not safely be returned. LQ is not a country guidance decision and the fact that the evidence in that case satisfied the AIT that the applicant, an orphan, faced a real risk of serious harm if returned to Kabul does not mean that all tribunals thereafter will have to reach identical findings of fact. …
Indeed, in the most recent country guidance case, AA (unattended children), Afghanistan [2012] UKUT 00016, the Upper Tribunal (Mr Justice Owen and Senior Immigration Judge Jarvis) concluded, after evaluating extensive evidence about the circumstances facing children in Afghanistan, that whether unattached children would be subject to severe harm would depend upon their individual circumstances and the precise location to which they would be returned.
So I do not accept that it would necessarily follow that the absence of someone to receive the child would compel the conclusion that asylum should be granted. Accordingly, even if Mr Bedford were right in his submission that the Upper Tribunal should have found that the appellants would not be subject to adequate reception facilities on return to Afghanistan, that would not be sufficient to establish the right to asylum status. The case would still have had to be remitted to the Upper Tribunal on that issue.”
38. Thus, the correct approach, having established that the appellant will on return be child who is “unattached” and without any other social support network, is to carry out a careful examination of the particular circumstances of this particular appellant, as articulated in AA. The Tribunal accepted that country evidence “presents a bleak picture for children who are returned to Afghanistan and do not have a family that will care for them…” but said that the evidence did not establish risk at a level to justify a conclusion that all children would qualify for humanitarian protection. The Tribunal continued, at para 92:
“But the background evidence demonstrates that unattached children returned to Afghanistan may, depending upon their individual circumstances and the location to which they are returned, be exposed to a risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection.”
Adding:
“Such risks will have to be taken into account when addressing the question of whether return is in the child’s best interests, a primary consideration when determining a claim to humanitarian protection. “
39. As I have made clear, although there is no question of the appellant being returned to Afghanistan while he is a child, in this appeal the question is the hypothetical one of whether, if he were, he would be at risk such as to require that he be granted international protection. Having accepted that he would have no parental support and no other social or family network, that means that he would have to look for whatever support may be available from other sources. Given that he has been away from Afghanistan since he was 9 or 10 years old and that he has no experience of living in Kabul where the evidence indicates that he would face a bleak prospect in terms of finding employment and accommodation, the focus moves to the sources of assistance identified by the respondent and whether they will be sufficient. It is undoubtedly the case that both the IOM and UNHCR are doing their best to provide support to returnees but, given the sheer scale of the returns from Pakistan and elsewhere, let alone from Europe, it is far from clear that sufficient assistance will be available to this appellant.
40. The recent IOM initiative is of course to be welcomed. As it is asserted, specifically, that funding is said to be available for 2,000 returnees from Europe, the fact that 12,000 returnees arrived from Pakistan in the first quarter of 2015 alone may not mean that provision for the much smaller numbers returning from Europe will be compromised. But this a is a recently announced initiative; the intention to provide the services described is expressed in the future tense with no confirmation as to when the initiative will be rolled out in practice, and, in my judgment, it does not provide a complete answer, in any event, to the other concerns identified by Mr Foxley, such as the appellant’s lack of “street sense” in an unfamiliar environment and his vulnerability to sexual and other exploitation as an unattended child. When one adds to this the primary importance of identifying and promoting the best interests of this child, it seems to me impossible to conclude that those best interest are served by removing this appellant to Afghanistan at a time when he is a child with no parental of other support.
41. It seems to me that this is a finely balanced case. The factors that speak in the appellant’s favour may well all fall away in the reasonably near future. He will achieve his majority in 7 or 8 month’s time in November 2017. He will then no longer be a child. While there is no “bright line” in terms of maturity and development, in the context of the legal framework to be applied that is a matter of some significance. His mother had been told that she was to leave Pakistan at the end of March 2017. If she does so, it is entirely possible that she will choose, like many other Afghan nationals who had previously moved there from Afghanistan, to return to her country of nationality and take up whatever support and assistance UNHCR is able to provide. It may be that the appellant’s father, if in fact he has no lawful basis of stay in the United Kingdom, will be removed to Kabul. It may be that evidence of the rolling out of the IOM initiative of March 2017 will emerge to establish that, in fact, for returnees such as the appellant, support will be available sufficient to overcome the risks of failing to secure employment and accommodation in an unfamiliar environment and help to avoid the many risks that have been identified facing vulnerable returnees, especially unattached children.
42. But all of that is a speculative assessment of what may or may not happen in the future and what is required is an assessment of the position of the appellant today. It is plainly established by the evidence that if the appellant does not secure accommodation and either employment or some other financial support on return to Kabul then he is vulnerable to succumbing to a range of risks of serious harm, whether he remains in Kabul or returns to his previous area of residence. In neither area will he have support or relatives or friends and, as a child without such support he is plainly at a significantly enhanced risk of being subjected to ill-treatment for a number of reasons that will be sufficiently serious to amount to persecution. That is the position whether the appellant remains in Kabul or seeks to establish himself elsewhere in Afghanistan.
43. Put another way, it is established on the evidence that, given the totality of the circumstances of this particular appellant, he has a well-founded fear of persecution on account of being an unattended child in Afghanistan today.

Summary of decision:
44. The appeal is allowed on asylum grounds.

Signed

Upper Tribunal Judge Southern

Date: 29 March 2017