Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04359/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 December 2016
On 7 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

Omar [K]
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Reynolds (Counsel instructed by Duncan Lewis & Co)
For the Respondent: Mr S Kotas (Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal by the appellant in respect of a decision and reasons by the First-tier Tribunal (Judge Devittie) promulgated on 11 October 2016 in which the appellant's appeal was dismissed on asylum, humanitarian protection and human rights grounds.

2. The appellant is a citizen of Afghanistan and he made a claim for asylum on the grounds that he was targeted by the Taliban, who believed he was a Government informer. The appellant's father was arrested and detained one month after an incident in April 2015 when fighting broke out between the Taliban and the police outside the tea shop run by the appellant.

3. In a decision and reasons the FTT found a number of "unsatisfactory features" in the appellant's evidence which led to its conclusion that the core of his account lacked credibility and that the evidence relied on was fabricated. The decision and reasons went on to list those factors at [8(i) to (iv)]. Thereafter the FTT considered risk on return with reference to AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC). In the alternative the FTT also considered the issue of internal relocation.

Grounds for Permission to Appeal

4. The appellant argued that the FTT failed to make findings on material facts as to whether or not the appellant's father was detained. The decision and reasons at [8(iii)] was incomplete and did not amount to a proper finding (ground 1).

5. Ground 2 argued that there was a misdirection in law on the part of the FTT with regard to the evidence of two letters from village elders in Afghanistan which corroborated the appellant's account. The FTT rejected that evidence finding that they "were authored for the sole purpose of enhancing the appellant's asylum claim". The FTT failed to follow the guidance in Cledias Moyo [2002] UKIAT 01104 at [14] and in accordance with Tanveer Ahmed [2002] UKIAT 00439.

6. Ground 3 argued that the FTT failed to direct itself in accordance with the law when assessing credibility and did not follow principles outlined in HK v SSHD [2006] EWCA Civ 1037 [28].

7. Ground 4 argued that the FTT's alternative conclusion that the appellant could relocate to Kabul was based on speculation only and no consideration was given to country background evidence relied on by the appellant. In particular, that the appellant was from Karghayi in Laghman Province bordering Kabul, his father had been detained as a result of the incident and there was no family support, social network, accommodation or employment in Kabul.

Grant of Permission

8. Designated First-tier Tribunal Judge McCarthy granted permission to appeal on 10 November 2016 in the following terms:-

"I am satisfied it is arguable the judge has failed to make adequate findings or to give adequate reasons. Specifically, paragraph [8(iii)] of the decision is meaningless. It may be that the judge failed to proof read his decision before it was issued, but the text as promulgated simply states, "(iii) whether father detained and loss of contact in interview January 2015. I had no contact ... maybe father's mobile war".
Specifically, paragraph [8(iv)] does not provide reasons for finding the letters from the village chief had been provided for the sole purpose of enhancing the asylum claim. It is arguable that the judge failed to have regard to the approach encouraged in Tanveer Ahmed as there is no indication why they might be unreliable.
The last ground of the application challenges the judge's approach to internal relocation. At paragraph [11] the judge indicated that he considered the possibility of internal relocation as an alternative and did so on the basis that the appellant had established a well-founded fear of persecution in his home area. In assessing the risks the appellant might face in Kabul, he considered the country guideline case GS Afghanistan and concluded that there was no evidence the appellant would be at risk in Kabul from either the Afghan Government. The grounds argue that the judge failed to have regard to what risks the appellant might encounter from the Taliban in Kabul. This had been raised in paragraph [15] of the skeleton argument and reference to background country information had been provided which postdated the country guideline case. It is arguable that the judge has failed to address this issue and this is an arguable legal error".

Rule 24 Response

9. The Secretary of State responded to the grounds of appeal in a Rule 24 response dated 6 December 2016. Mr Kotas expanded on the response and contended that the grounds essentially complained about the lack of findings and the judge's approach to the documentary evidence. The reality was that this was a very straightforward claim with a simple factual matrix: the appellant claimed that the Taliban came looking for him because they believed he was a Government informer. There appears only to have been one incident which was a fight when the appellant escaped. The brief findings made in the light of this simplistic claim were appropriate.

10. The FTT was entitled to reject the appellant's account that the Taliban would not have approached him, and more critically that the appellant failed to enquire of the mullah how he had responded to the Taliban's request, as inherently implausible. The typographical errors did not undermine the findings made by the FTT. The FTT looked at the documentary evidence of the letters in the round. In the light of the above any error of law on internal relocation was utterly immaterial and did not arise where the appellant's account had been fundamentally disbelieved.

Error of Law Hearing
Submissions

11. Mr Reynolds relied on the detailed grounds of appeal and argued that the judge granting permission had made strong observations. Mr Reynolds expanded on the grounds of appeal arguing that the errors made by the FTT were material and relevant in that the FTT failed to set out adequate reasons for finding that the appellant's claim was lacking in credibility. The FTT indicated that it would give reasons in support of its findings but these were incomplete or meaningless as shown in paragraph [8(iii)] and [8(ii)] of the decision. The FTT was required to show why an appeal is won or lost and to show that anxious scrutiny has been given to the evidence before it.

12. In respect of ground 2 the FTT made a clear error of law by simply disregarding the letters as being "self-serving".

13. Ground 3 related to a mistake fact on the part of the FTT. It was clear from the evidence adduced that the appellant's father had a conversation with the mullah and it was not the appellant who had spoken to the mullah.

14. Ground 4 argued that the FTT erred by failing to expressly consider all matters raised in the skeleton argument.

15. Mr Kotas relied on the Rule 24 response. In respect of ground 4 he argued that the FTT had properly considered internal relocation by taking the case at its highest and looking at the various factors relevant to return to Afghanistan.

Discussion and decision

16. I find there are material errors of law in the First-tier Tribunal decision and reasons. I am satisfied that the appellant has made out grounds 1 and 2. In making findings as regards the appellant's claim to be in fear of persecution from the Taliban and from the authorities in Afghanistan, the FTT proceeds on the basis that there are unsatisfactory features of the appellant's evidence which lead to a conclusion that the account is fabricated and lacking in credibility. The decision and reasons then goes on to list those features and in my view does so inadequately and/or without giving full reasons. In particular, at paragraph [8(iii)] the decision simply records what appear to be notes and no specific finding is made in respect of the material issue of whether or not the appellant's father was detained. As it stands the wording at [(iii)] is meaningless. In a similar vein at paragraph [8(i)] the last sentence makes no sense and it is unclear what the FTT's reasons are.

17. Furthermore, I am satisfied that with reference to paragraph [8(iv)] the FTT failed to adopt the correct approach to documentary evidence following the principles in Tanveer Ahmed. The FTT has simply stated that the letters were authored for the sole purpose of enhancing the appellant's claim and accordingly limited weight is attached to them.

Notice of Decision

18. The appellant's appeal is allowed to the extent that I find material errors of law by the FTT.

19. The decision and reasons is set aside.

20. The matter is remitted to the First-tier Tribunal for rehearing at Taylor House (excluding Judge Devittie).

No anonymity direction is made.

Signed Date 13.1.2017

Deputy Upper Tribunal Judge G A Black

TO THE RESPONDENT
FEE AWARD

No fee award made

Signed Date 13.1.2017

Deputy Upper Tribunal Judge G A Black