Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04450/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 19 December 2016
On: 27 January 2017

Before

Deputy Upper Tribunal Judge Mailer

Between

H T
anonymity direction made
Appellant
and

secretary of state for the home department
Respondent

Representation
For the Appellant: Ms V Easty, counsel (instructed by Sultan Lloyd Solicitors)
For the Respondent: Mr P Singh, Senior Home Office Presenting Officer

DECISION AND REASONS
1. 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.
2. The appellant is a national of Afghanistan, born on 1 March 1999.
3. His appeal against the respondent's decision refusing his application for asylum, humanitarian protection and human rights was dismissed by First-tier Tribunal Judge Dhaliwal in a determination promulgated on 18 October 2016.
4. The Judge concluded that the appellant is able to return and relocate to Kabul where there will be no risk to him. It would not be unduly harsh in any way for him to return to Afghanistan, in particular as his family will be there to support him [42].
5. On 10 November 2016, First-tier Tribunal Judge E B Grant granted the appellant permission to appeal. She stated that there is no merit in the suggestion that the Judge had not addressed the arguments in the skeleton argument. Reading the decision as a whole, it is clear that the Judge had the points made by the appellant's counsel in mind and dealt with them.
6. However, whilst the Judge had given a well reasoned decision overall it is arguable that in failing to give adequate reasons for attaching no weight to the updated evidence of Lisa Schuster (following Naziri and responding to the Upper Tribunal's concerns about her evidence) that the Judge may have erred in law.
7. Ms Easty, who did not represent the appellant at the First-tier Tribunal, referred to [28] and [29] of the First-tier Tribunal Judge's decision, where the Judge stated that "?.the appellant relies on what he states reflects the present situation in Afghanistan and Kabul, namely the two reports prepared by Lisa Schuzter (sic). She has read these reports but has also noted the comments of the Upper Tribunal in R (on the application of Naziri v SSHD (JR Scope Evidence) IJR 2 [2015]. The Upper Tribunal was not persuaded to depart from the present country guidance on Afghanistan.
8. Having this in mind, and considering the facts of this particular appellant, the Judge saw no reason to depart from the current country guidance, nor did she feel that she needs to place reliance on the reports from Lisa Schuster above and beyond the current country guidance. She therefore did not place weight on the reports from Lisa Schuster.
9. Ms Easty referred to the report from Lisa Schuster which was before the First-tier Tribunal at page 37-61. That report merged and expands the two previous reports dated 4 March 2015, amended on 22 March 2015, and supersedes them. She has stated that she has concentrated on reports and data from 2014-2015, deleting most of the early reports and references.
10. There is also a report from Ms Schuster dated December 2015 produced from page 67-108 which she stated updates previous reports and supersedes them. She has incorporated the earlier reports, retaining material that remains valid and adding in new reports and data.
11. At page 83-84 of the bundle, Ms Schuster, in her December 2015 update, referred to the Home Office argument that Afghans were successfully returned to many provinces by charter in March 2015. However, she saw no evidence of how successful these returns were or how success is to be defined. Her research and that of other scholars has found that it is difficult if not impossible for those without networks and/or resources in Kabul to settle there. They are at risk of destitution, exploitation and criminal predation.
12. Whilst there is no evidence that any of those returned in March have successfully re-integrated, in the course of her research, those she met who have made this attempt have inevitably returned to Kabul but only in order to find a way to leave the country again. In most cases this was because they had been threatened or attacked, and in other cases because there was no way for them to survive. She said that it is important to underline this point. She has seen first hand the bewilderment, confusion and fear as returnees try to work out what they can and should do. Some in spite of their fears do try to return to their provinces.
13. Ms Easty submitted that Ms Schuster did not state that in her March 2015 report. She merely stated that it is a deteriorating situation (paragraphs 20-22). She did not say that Article 15(c) will be breached. She does not mention Article 15(c). She changed her position in the December 2015 report.
14. The conclusions are set out at page 83 of the appellant's bundle. There Ms Schuster stated that she believes that a civilian returnee to Afghanistan (Kabul or elsewhere) would, solely on account of his presence on the territory of that country or region, face a real risk of being subjected to serious threat referred to in Article 15(c) of the Directive. This would not necessarily follow inevitably, but there is a real risk that they could be killed or injured as collateral damage and for the first since 2001, the risk is not significantly diminishing as the winter approaches.
15. Ms Easty said that Naziri "was fixed in time as at 1 April 2015." She submitted that the Judge did not properly consider or assess the updating evidence, but simply decided that the Upper Tribunal was not persuaded to depart from the present country guidance on Afghanistan. Accordingly, the Judge saw no reason to depart from this guidance, nor did she feel that she needed to place reliance on the reports of Ms Schuster beyond the current guidance. She therefore did not place weight on the reports from Ms Schuster.
16. However, Ms Schuster stated in terms that Article 15(c) will be breached. In the circumstances, it was submitted that it was 'incumbent upon her' to have regard to the updating evidence relating to that issue. That is particularly so as evidence was not available to the Upper Tribunal in Naziri. Her latest report sought to update the decision.
17. On behalf of the respondent, Mr Singh relied on the Rule 24 response. The Judge was duty bound to follow the country guidance except in circumstances where she was persuaded that there was good reason to depart from it. The Judge confirmed that she read the reports from Ms Schuster in conjunction with Naziri. She considered that it would be inappropriate to depart from this guidance.
18. She was accordingly entitled to reject the evidence in the reports, having adequately explained her reasons for doing so.
Assessment
19. The First-tier Tribunal Judge noted that the appellant relied on two reports prepared by Ms Schuster. She said she has read the reports but also noted the comments of the Upper Tribunal in Naziri. The Upper Tribunal was not persuaded to depart from the present country guidance on Afghanistan.
20. Having this in mind, and considering the facts of this particular appellant, she saw no reason to depart from that guidance, nor did she feel that she needed to place reliance on the reports from Ms Schuster beyond the current country guidance. She therefore placed no weight on the reports from Ms Schuster.
21. However it appears from the submissions referred to in the skeleton argument placed before the First-tier Tribunal Judge, which set out the appellant's case, that he should be granted refugee status or at the very least, humanitarian protection under Article 15(c).
22. Dr Schuster had updated her March 2015 report where she has addressed some of the concerns raised by the respondent. She had also provided evidence and "data" concerning the increasing insecurity, in particular since March 2014 in Afghanistan and especially in Kabul and some selected provinces.
23. She confirmed in her December 2015 report that the situation in Afghanistan has actually worsened since her last report and that there has been political pressure on the Afghan government to accept that the situation has improved.
24. The conclusions of Dr Schuster's December 2015 report are set out in full in the skeleton argument before the First-tier Tribunal.
25. Dr Schuster had accordingly considered evidence and information which post- dated the decision in Naziri, including her own statements and evidence to the Upper Tier Tribunal in that case.
26. In particular, Dr Schuster has considered the applicability of Article 15(c) in her recent report. That evidence was not before the Upper Tribunal in Naziri.
27. The decision in Naziri was appealed. The Court of Appeal dismissed the appeal in HN and SA (Afghanistan) [2016] EWCA Civ 123. It did not however rule on the security situation.
28. In refusing to consider departing from the present country guidance on Afghanistan, the First-tier Tribunal Judge saw no reason to depart from it. Nor did she feel the need to place reliance on the reports from Dr Schuster above and beyond the current country guidance. She therefore did not place any weight on those reports.
29. The Judge did not however set out any proper reasons for not placing reliance on her reports with regard to the current country guidance. The Judge did not consider the information and circumstances referred to in her December 2015 report which superseded Dr Schuster's other reports.
30. Even where there may be a relevant country guidance case, the Tribunal is obliged to consider and determine the facts of the individual case and to consider any evidence showing a change of circumstances since the "factual precedent" was decided or showing that a factual finding in the country guidance case was incorrect1. The Judge was at least required to consider the evidence presented by Dr Schuster which claimed to show a change of circumstances since the decision in Naziri. This was not undertaken.
31. I accordingly set aside the decision. The parties agreed that in those circumstances the appeal should be remitted to the First-tier Tribunal (Birmingham) for a fresh decision to be made.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law and the decision is set aside. The appeal is remitted to the First-tier Tribunal (Birmingham) for a fresh decision to be made. The appeal will be heard by any Judge apart from the First-tier Tribunal Judge whose decision has been appealed.
Anonymity direction continued.

Signed Date 25 January 2017
Deputy Upper Tribunal Judge C R Mailer