Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04319/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
Oral determination given following hearing

On 28 November 2016
On 30 December 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

Sardarwali [M]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Ti, Solicitor instructed by Kesar & Co Solicitors (Bromley)
For the Respondent: Mr L Tarlow, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant in this case is a national of Afghanistan who was born in September 2002. He is therefore now 14 years old. He claimed asylum in this country claiming to have a well-founded fear of persecution in Afghanistan on the basis of his imputed political opinion. His application was refused by the respondent and he appealed against that decision. His appeal was heard before First-tier Tribunal Judge Andonian at Taylor House on 9 September 2016 and dismissed in a decision promulgated on 6 October 2016. Essentially the judge made adverse credibility findings and then stated that for this reason he did not have a well-founded fear of persecution in Afghanistan. The judge also very briefly considered whether or not he was entitled to humanitarian protection and said not although his reasons for this were given in one short paragraph at paragraph 16.
2. The appellant seeks to appeal against this decision and has been given permission so to do by First-tier Tribunal Judge Andrew on 28 October 2016. The appellant sought to rely on thirteen grounds of appeal the first eleven of which challenges various of the findings which the judge made. The twelfth and thirteenth make the case first that the judge had failed to give any or any proper consideration to whether or not the appellant now would be at risk of serious harm and exploitation if returned to Kabul, relying on the case of AA (unattended children) Afghanistan CG [2012] UKUT 00016 and secondly that it is not apparent from the decision that the judge gave any consideration to the provisions of Section 55 of the Borders, Citizenship and Immigration Act 2009 which require him to have regard to the appellant's best interests as a primary consideration. Permission was granted on grounds 12 and 13 but not on the first eleven grounds because Judge Andrews considered that these did not amount to more than a disagreement with the judge's findings which had been open to him on the evidence before him.
3. Within a matter of days after receiving Judge Andrew's decision on the application for permission to appeal the appellant sought to renew the application to the Upper Tribunal with regard to the first eleven grounds but regrettably that application was not put before the Tribunal until very shortly before this hearing in consequence of which I directed that it could be considered orally at the hearing. However, in view of the decision which I take with regard to the appeal I do not need to consider these grounds. It is trite law and Mr Tarlow representing the respondent at this hearing does not seek to persuade me otherwise that the judge needed to consider the position of the appellant at the date of the hearing. The fact that the respondent would not in fact remove him to Afghanistan until he was an adult does not relieve the Tribunal of the necessity of considering what risk he would be at at the date of the hearing were he then to be removed. In order to do that the judge needed to consider properly what the position of this appellant as an unaccompanied 14 year old minor would be were he now to be returned to Kabul. He would also need to have regard to the provisions of Section 55. In my judgment the judge has not shown in his decision that he gave adequate consideration to either of these factors and for this reason the decision must be set aside and re-made.
4. I consider that it would be unrealistic to bind a new judge considering this appeal with such findings of fact as the judge made because at a new hearing a new judge will be considering the evidence afresh and realistically ought to make his own findings with regard to the evidence he or she hears. Accordingly, because a fresh hearing is needed, it is appropriate having regard to the Presidential guidance which has been given to remit this case back to the First-tier Tribunal for hearing afresh before any judge other than Judge Andonian. I make this decision because essentially there has to be a re-hearing of the evidence and in the circumstances remittal is the appropriate course.
Decision
The decision of First-tier Tribunal Judge Andonian dismissing the appellant's appeal is set aside and the appeal will be remitted to the First-tier Tribunal sitting at Taylor House to be re-heard before any judge other than Judge Andonian.

Signed:

Upper Tribunal Judge Craig Date: 22 December 2016