Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number:
PA/04871/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th April 2017
On 26th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between
RK
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department

Respondent

For the Appellant: Ms Sabic, Counsel instructed by Duncan Lewis Solicitors
For the Respondent: Ms Fijiwala, Senior Home Office Presenting Officer

DETERMINATION AND REASONS

1. The Appellant is a national of Afghanistan. Although his age is disputed it is accepted that he is a minor: he will turn 18 in July of this year. He appeals with permission1 the decision of the First-tier Tribunal to dismiss his appeal against decisions to refuse to grant him international protection or leave on human rights grounds.

2. The Appellant arrived in the United Kingdom on the 26th November 2015. He claimed asylum on the 6th January 2016. His claim is based on a fear of the Taliban. He states he comes from Laghman province. Both his father and brother are serving members of the Afghan National Army. In approximately mid 2015 the Taliban started to threaten the family. They were told that the men had to leave the army, or there would be “consequences”. The Appellant believes that three letters to this effect were sent to his family before he was himself approached by their fighters. They tried to get him to go with them but he ran away. Two days later they successfully abducted him. They took him to their camp on Tor Ghar (Black Mountain). The fighters fitted him with what they told him was a suicide jacket. They left him on a mountain road and told him that when the police came, he should detonate the device. The Appellant waited but the police did not arrive. Eventually the Taliban came back down from their vantage points on the mountain and removed the jacket from the Appellant. They allowed him to make his way home. His family called the police and he explained to them in detail what had happened to him. He took them to the location on Tor Ghar where he had been held. The police conducted a search of the area which culminated in a gun battle with the Taliban. The police commander took the Appellant home. Because of what had happened his family decided that it would not be safe for him to remain in Laghman and arrangements were made for him to leave the country. The Appellant travelled to the UK overland under the control of agents. He claims to have had no contact with his family in Afghanistan.

3. The Respondent accepted that the Appellant was from Laghman and that his father and brother were members of the Afghan army. In respect of the Appellant’s age, the Respondent relied on an assessment made by social workers at the London Borough of Croydon, that he was born on the 1st July 1999 (the Appellant himself had asserted it to be 2001). It was not accepted that the family had received threats from the Taliban, or that the Appellant had been abducted as described. The Respondent relied on country background evidence indicating that the Taliban do not engage in the coercive recruitment of children. The Appellant’s account was found to be inconsistent with that material and therefore rejected as not credible. The Respondent further considered his account to be internally inconsistent. Even if the Appellant was in fear of the Taliban in Laghman, the Respondent considered that it would be reasonable for him to seek protection of the Afghan state elsewhere in the country, for instance in Kabul.

4. The matter came before the First-tier Tribunal in November 2016. The Appellant was at that date, by the Secretary of State’s estimation, 17 years old. The Tribunal heard oral evidence from him, and was provided with a large bundle of documents including an expert report by Dr Antonio Giustozzi. The Appellant advanced his case on human rights, asylum and humanitarian protection grounds.

5. The appeal was dismissed in a determination promulgated on the 9th December 2016. The Tribunal accepted that the Appellant’s family may have received at least one threatening letter from the Taliban [at 74] but found the account of capture and escape not to be credible. The crux of the Tribunal’s reasoning was that the account was inconsistent with the background material relied upon by the Respondent: there is no objective evidence that the Taliban forcibly recruit children to become suicide bombers and this account is therefore implausible. The Tribunal did not believe that the Taliban would allow the Appellant to return home after the incident, since he was the son of an Army commander and could be expected to lead the police straight to them. The Tribunal was not satisfied that the Appellant had lost contact with his family as he claimed. His account of how he disposed of his phone and the piece of paper with his mother’s number on it, upon the instructions of an agent is rejected. The Tribunal concluded its assessment by considering whether the Appellant could safely and reasonably live in Kabul if he were afraid in his home area. It found, [at paragraph 94] that the Appellant was a “healthy adult male” and as such could be expected to re-establish himself with the support of his family if necessary. The appeal was thereby dismissed on all grounds.

The Appeal

6. The appeal is brought to the Upper Tribunal on grounds drafted by Ms Chapman of Counsel, who represented the Appellant before the First-tier Tribunal. In her oral submissions Ms Sabic adopted and amplified those grounds as follows:

i) The First-tier Tribunal failed to engage with the expert evidence of Dr Giustozzi. In his detailed report Dr Giustozzi had confirmed that there is no evidence to support the contention that the Taliban forcibly recruit suicide bombers from the civilian population. He did not however think that was what had happened here. In the context of the evidence overall Dr Giustozzi suggested that this had not been a case of forced recruitment at all; what had happened to the Appellant was part of the campaign of threats against his father. It was a ‘final warning’ to the family. The determination does not address this evidence and as such made its assessment of plausibility without taking all of the available evidence into account;

ii) The Tribunal failed to conduct a risk assessment based on facts that were accepted, those being that the Appellant is a child from Laghman with two close family members serving in the Afghan army and whose family had already been threatened by the Taliban;

iii) The determination does not address at all the humanitarian protection argument advanced on behalf of the Appellant;

iv) In its assessment of internal flight the Tribunal makes a material error of fact, describing the Appellant is a “healthy adult male”;

v) The Tribunal makes no adequate assessment of the Appellant’s best interests.

7. The Respondent was represented, at an initial ‘error of law’ hearing on the 27th February 2017 by Senior Presenting Officer Mr Jarvis. Mr Jarvis accepted on behalf of the Respondent that the First-tier Tribunal had not adequately engaged with the arguments put in respect of Article 15(c) of the Qualification Directive and that this part of the decision would need to be remade. He made no submissions on Article 8 or s55 of the Borders, Citizenship and Immigration Act 2009. In respect of all other grounds, Mr Jarvis opposed the appeal. He submitted that the Tribunal had clearly been alive to the Appellant’s young age, since the determination makes reference to it at several points. There is no bright line between majority and minority and that can work both ways. It was open to the Tribunal on the evidence before it to conclude that he was a young adult and would be perceived as such by people in Kabul. Mr Jarvis further submitted that the Tribunal had clearly had regard to the evidence of Dr Giustozzi. It was not obliged to set out the whole report, nor to deal with what was in essence speculation by the expert.

8. At the hearing on the 27th February 2017 Ms Sabic had applied for the matter to be adjourned. That was because she had instructions that the Appellant had suffered a breakdown in his mental health and that he was receiving treatment. She asked that the matter be adjourned to enable her to obtain medical evidence of the same. She relied upon E v Secretary of State for the Home Department [2004] EWCA Civ 49 to submit that mental ill-health, if present at the date of the hearing before the First-tier Tribunal, could establish an error of fact operating as an error of law, in the credibility findings even if the First-tier Tribunal could not have been aware of it. She asked for prospective leave to amend the grounds of appeal to include a challenge on this basis, should a mental health clinician subsequently confirm what was suspected, namely that the Appellant was having difficulties because of depression, PTSD or related conditions. At the resumed hearing on the 19th April 2017 Ms Sabic indicated that she would not be seeking to amend her grounds. A medical report had been obtained, but she did not consider it necessary or appropriate to pursue the aforementioned ground. I heard brief submissions from Ms Sabic and Ms Fijiwala on the First-tier Tribunal’s findings about contact with his family, a matter on which I had previously reserved judgement pending the service of medical evidence.

9. I then heard oral evidence from the Appellant, and submissions from the parties. I reserved my decision which I now give with reasons.

‘Error of Law’

Ground (i)

10. I am satisfied that ground (i) is made out. The central reason that the Tribunal gives for rejecting the Appellant’s account of his experience on Tor Ghar is that it was not plausible in the context of the country background material: “his own expert report confirms that the Taliban do not forcibly recruit suicide bombers. This undermines a core part of his claim”. The notion that this was a forced recruitment did, it must be said, come at least in part from the Appellant’s own interpretation of events. However, Dr Giustozzi, an academic with an unrivalled knowledge of the security situation in Afghanistan, considered that this was not what had happened here:

“[The Appellant’s case] does not fit into any of these cases described above. The dynamics of his recruitment as he describes it suggest that the intent of the Taliban was not so much to recruit him, but rather to issue a further warning against his family members, that while they might be safe serving in the armed forces, other members of the family such as [the Appellant] would instead be at risk. Whether they actually meant to have him blown up or not is not clear, but his release suggests that the intent was issuing a final warning, rather than implementing a punishment…”

11. The determination does acknowledge this evidence at paragraph 79, where it is dismissed as “speculation”. The Tribunal concludes “I do not find it credible given what is known of the Taliban that they would give this appellant and his family so many warnings”. It is not clear what the Tribunal means by “what is known about the Taliban” given that Dr Giustozzi makes his remarks in the context of his very great knowledge of that movement’s ideology and tactics. He had prefaced his “speculation” by setting out the evidence of the Taliban targeting of “collaborators” and their families, and how warnings are repeatedly given, in varied forms: ie ‘night letters’ either thrown into compounds or nailed to doors, telephone calls, telephone messaging, oral warnings, walking down the road with loudspeakers denouncing those who cooperate with the government and the ‘foreigners’. He had confirmed that family members can be targeted as a means to getting individuals to cease their support for the authorities. Dr Giustozzi had also made clear that there is no particular limit on the number of warnings that an individual or family might receive: “5. ‘Collaborationists’ are usually first warned to quit their job and/or stop co-operating with the government….After several warnings, the resilient ‘collaborationists’ would be beaten up or their property damaged. Finally, in case even this tactic failed, the Taliban would proceed to physically eliminate the ‘collaborationist’”.

12. It is trite law that the Tribunal was not bound to accept Dr Giustozzi’s opinion about the plausibility of the claimed events but in the case of an acknowledged expert whose objectivity was not subject to challenge, it was incumbent on the Tribunal to give reasons if it did not accept that his evidence was reliable, or applicable in this case. It was not simply “speculation”. It was an interpretation of events based on all that Dr Giustozzi knows about Taliban tactics, and on his reading of the Appellant’s evidence in that context. I am satisfied that it was an error of law to fail to fully engage with that evidence. It led to the Tribunal dismissing as ‘not credible’ evidence which Dr Giustozzi considered, in his expert opinion, to be perfectly plausible.

Ground (ii)

13. This is the strongest ground. It was the accepted fact that the Appellant was from Laghman, had two close family members serving in the Army, and that the family had received at least one threat from the Taliban as a result. His Counsel, Ms Chapman, had made submissions based on the country background evidence to the effect that his association with the authorities – by way of his father and brother- would in itself would place him at risk in Laghman province. This was an area of high Taliban presence, where numerous attacks had been mounted on persons with perceived association with the government. Even if none of the rest of the Appellant’s claim were true, this was a plank of the case that merited consideration. It was an error of law to fail to deal with this specific submission made on the Appellant’s behalf.

Ground (iii)

14. I need not deal with this ground, relating to the failure to deal with humanitarian protection, in any detail since Mr Jarvis accepted on behalf of the Respondent that it is made out. The Appellant’s counsel made submissions on the point, supported by a skeleton argument and a large bundle of background material. None of that is addressed in the determination, which simply reproduced the country guidance as it stood in 2012: AK (Article 15(c) Afghanistan) CG [2012] UKUT 00163 (IAC).

Ground (iv)

15. From paragraphs 92 to 103 the First-tier Tribunal considered, in the alternative, the question of internal flight. At paragraph 93 the Tribunal notes that the Appellant is currently aged 17 years old, but at paragraph 94 describes him as a “healthy adult male”. Ms Sabic submitted that this was a misdirection. The Appellant was neither healthy nor adult and as such the internal flight assessment could not be considered safe. Mr Jarvis submitted that nothing turned on this issue. The Tribunal was plainly aware of the Appellant’s true age and had made its assessment on that basis. At the age of 17 it was entitled to have regard to the fact that he was approaching adulthood.

16. I am satisfied that the Tribunal did err as a matter of fact in its description of the Appellant as an “adult”. There is no bright line between minority and majority, and each case will be fact specific. A 17 year-old with proven maturity and resilience, who may not appear in the context of Afghan society to be a child, may be able to relocate without any unduly harsh consequences. Conversely a 19 year old with little or no social skills or experience, who is physically underdeveloped, may on the other hand be vulnerable to the kind of predations discussed in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC). In this case the Tribunal appeared to find [at paragraph 94] that the Appellant, albeit technically a minor, fell into the former category. What it did not do is give any reasons for that finding. The evidence before the Tribunal uniformly indicated not only that the Appellant was a child, but he was one who presented as such. The social workers at Croydon had accepted as much, and there was uncontested evidence from a witness who knows the Appellant well that in her view he seemed much younger than 17: see the statement of Antonia Cohen2.

Ground (v)

17. I accept that the Tribunal’s assessment of the Appellant’s best interests [at paragraph 105] was limited, being based simply on its finding that he could be reunited with his family. No consideration was given, for instance, to whether the Appellant would be placed at risk by resuming his association with his father and brother. I am satisfied that this ground is made out.

Preserved and Set-Aside Findings

18. Those were the findings that I reached on grounds (i)-(v) at the close of the initial ‘error of law’ hearing. I indicated that following parts of the First-tier Tribunal determination were to be set aside:

Paragraphs 75-82. This section deals with the plausibility of the Appellant’s account of his abduction without taking into account the expert opinion of Dr Giustozzi

Paragraphs 92-102. This section deals with the question of ‘internal flight’ based on the direction that the Appellant is a healthy adult male

Paragraph 103. This contains the unreasoned conclusion that the Appellant does not qualify for humanitarian protection

Paragraphs 104-105. These paragraphs contain what is accepted to be an inadequate assessment of Article 8 and the ‘best interests of the child’

19. The findings preserved/agreed were as follows:

The Appellant is 17 years old
He is from Laghman province
His father and brother both serve in the Afghan National Army
The family received at least one threatening letter from the Taliban

20. The question of the Appellant’s contact with his family was left in the balance. At the close of the ‘error of law’ hearing I was not prepared to set the relevant paragraphs [83 to 88] aside because it was not immediately obvious that these were infected by the error identified in ground (i), namely the failure to have regard to the expert evidence. The Tribunal gave several reasons why it did not believe the Appellant’s account. In his oral evidence he had said that the agent had given him a mobile phone as he entered the lorry at Calais, and to throw it away once he got to the UK. The Tribunal did not consider that credible since it “made no sense”. Further it was inconsistent with the Appellant’s written evidence that the agent had told him to throw everything away whilst still in Calais. The Tribunal did not consider it credible that the Appellant would not be able to accurately recall when he had last spoken to his mother, or that he would have failed to memorise her number, even if he knew that he was to be deprived of the phone and papers. Those reasons appeared, at first blush, to be sustainable and extricable from the evidence in respect of events in Afghanistan. Given my indication that I was prepared to hear from Ms Sabic in respect of her ‘mental health’ ground at the resumed hearing, I reserved my decision in respect of these paragraphs until the parties had been given an opportunity to address me on it.

21. I heard those submissions at the resumed hearing. Having done so I was not minded to set this part of the decision aside. Ms Sabic in effect submitted that the Tribunal approached its assessment of credibility of this evidence in light of the other negative findings it had already reached. She submitted that the outcome on this matter may well have been different had the Tribunal for instance, reached a positive conclusion with regard to the incident on Tor Ghar. Ordinarily that would have been a good submission. Very often determinations are written in such a way that it is impossible to extricate good findings from bad, and an error in approach to credibility will infect the entire determination. In this case however the Tribunal was at pains to set out, under separate headings, its findings on each element of the case. The findings on the Appellant’s contact with his family are entirely distinct from the findings on the historical claim. There is no indication that the Tribunal weighed into the balance the conclusions it had already reached in respect of other matters. The findings on this issue are discrete, and were open to the Tribunal on the evidence before it.

The Re-Made Decision

22. I am indebted to Ms Sabic and Ms Fijiwala for the very pragmatic and helpful approach that they both took to the re-making of this appeal. There was a long delay on the day because no interpreter was available and this meant that although the court day started at 10.00am, it did not finish until 5.40pm. What we did manage to do, as we waited for an interpreter to arrive, was to address the country background situation on the current situation in Laghman province. It is therefore with that issue that I begin.

23. As Ms Sabic acknowledged in her submissions, the central plank of her case is asylum. If the case is made out on that ground I need not address the question of humanitarian protection or whether the Appellant’s removal would be contrary to his best interests or otherwise a disproportionate interference with his Article 8 rights.

Laghman: Current Risk on the Accepted Facts

24. It is not contested that the Appellant is from Laghman province, and in particular an area called Qarghayi.

25. In his initial report, dated 5th November 2016, Dr Antonio Giustozzi confirmed [at paragraph 21] that Laghman province has been “seriously affected by violence for years” and that Qarghayi district is today the part of Laghman “most affected by the insurgency of the Taliban”. He notes that in addition to the Taliban, Hizb-i-Islami are in operation there and that this is a remote area where the reach of the state is already very weak. He opines that the insurgency has been consistently expanding through the province and gives a series of statistics to demonstrate that terrorist activity and attacks have been increasing in frequency. For instance, in 2015, the year of the events narrated in this claim, there were 1029 attacks recorded, a 66% increase on the preceding year.

26. It has been accepted by the Respondent and the First-tier Tribunal that the Appellant has two close family members serving in the Afghan Army, and that his family received at least one threat from the Taliban.

27. In the Country Policy and Information Note Afghanistan: Fear of anti-government elements (AGEs) (Version 2.0, December 2016) the Respondent sets out the evidence on those considered most at risk from AGEs:

2.3.1 Civilians associated with, or perceived to be supporting the Government, civil society and the international community in Afghanistan, including the international military forces and international humanitarian and development actors, have been subject to intimidation, threats, abductions and targeted attacks by AGEs, such as the Taliban. Other targets, though not exhaustive,
include civilians accused of spying; government officials and civil servants; judges, prosecutors and judicial staff; journalists and other media professionals; perceived ‘Westerners’; Teachers and those involved in the education sector including students; tribal elders and religious leaders; healthcare workers; humanitarian workers and human rights activists; women in the public sphere; and families or individuals supporting or perceived to be associated with the above.

28. These conclusions are supported by those reached in the UNCHR eligibility guidelines: see 8.8.1 of the CPIN. The same document confirms the Secretary of State for the Home Department’s view that there is no effective state protection in areas under the control of AGEs: see paragraph 2.4.2.

29. I do not consider it necessary to set out any further material on the situation in Laghman. Ms Fijiwala did not contest any of the country background material and accepted that if I was satisfied that the Appellant would be perceived – by association with his father and brother - to be a supporter of the government, the risk would be made out.

30. Having regard to the country background information, and on the preserved facts accepted by the First-tier Tribunal, I find that the Appellant has shown there to be a real risk of serious harm to his life or person in Laghman province. He is young male with close association to serving members of the armed forces. His father is a commander in the army. As such I find it reasonably likely that the Taliban would view him as a target. That is consistent with the accepted fact that they have already issued a threat against the family. Ms Fijiwala made the point that the Appellant’s mother and sisters have not apparently experienced any problems. I am not satisfied that this would be good reason to suppose that the Appellant would not be at risk. First of all we do not know whether they have experienced any difficulties, since the Appellant claims to have had no contact with them for some time. Even if it can be assumed that they have been left unmolested this would accord with Dr Giustozzi’s evidence that it is “against Taliban rules” to target women: see paragraph 6 of this original report.

Laghman Province: the ‘historical’ claim

31. The Appellant’s account about what happened to him on Tor Ghar must be viewed in light of circumstances in Laghman, with particular regard given to Dr Giustozzi’s evidence about the situation as it stood in 2015. This was, and remains, an area of high Taliban activity. I accept that the Appellant, by virtue of his gender, age and family associations, would be a target for the Taliban. The plausibility or otherwise of his account must be assessed against that background.

32. His account is a straightforward one. We know that his father and brother were away serving in the army when the family received a threat from the Taliban. It is the Appellant’s evidence that two further ‘night letters’ were sent in quick succession. In his oral evidence he explained, in response to Ms Fijiwala’s questions, what happened to him approximately fifteen days after the last letter had been received:

“Can you describe what happened?

I was in shop and when I came out some people in car were slowly following me. They said to me “hey get into car we will give you a lift”

I was alarmed – on guard - because of the letters that had been sent to our house. I didn’t accept their offer and didn’t get into the car. I ignored them and carried on walking.

Did they continue to follow you?

Yes they were continuing to chase me. When I saw that I dropped my shopping and started to run. I managed to lose them – I don’t think they managed to follow me home”

33. The Appellant told his mother what had happened and she contacted her husband. He tried to reassure her that everything was fine and that she shouldn’t worry. The Appellant explained that his mother is diabetic and that his father would worry about placing her under stress so he would always play things down. Two days later the Appellant and his sisters were at home. There was no food in the house and they were hungry. The Appellant told his sister not to tell his mother that he was going out to the bazaar – perhaps following his father’s lead he did not want to worry her. The Appellant went over the back wall of the house and took a different route to the market. He was worried but did not think that he would be seen. As he emerged from the shop he became aware of some men coming from behind and walking to the side of him. He started to run and they chased him. They grabbed him and put him in a car. Whilst in the vehicle he was blindfolded and he could hear the men talking. They mentioned taking the road to Tor Ghar. This means ‘Black Mountain’. The Appellant had heard people mention this place but had not been there himself. He knew where it was in relation to his home but had never been there because he knew it to be where the Taliban were. When he emerged from the vehicle the blindfold was taken from his eyes. He was on a remote mountain road. The men told him that they had a job for him. He was to wear a jacket that they put on him. They handed him a remote control with a button on it. They said that he was to stand on the road, and waited for the police to come. When the police came he was to press the button. The police would give him money and chocolate. The Appellant knew that this was not true. He believed that the jacket he wore was actually a suicide vest and that he would die. He was very frightened. He stood on that road a long time – he estimates possibly two hours. No one came along. When it became clear that the police were not coming the Appellant started to walk. The Taliban, who had taken up vantage points higher up the mountain came down. A man removed the vest from him and told him “it was not your destiny to have money and chocolates today”. They took the remote from him and allowed him to leave. They pointed in a direction and told him to keep walking that way. He did so and eventually reached his village where he told people what had happened and they called the police.

34. I had the opportunity to hear the Appellant narrate this event in person. I heard his evidence after I had read his statements and asylum interview. I am satisfied that his account has been consistent and that his evidence was given in a straightforward and unhesitant manner. The First-tier Tribunal had expressed concern that the behaviour of the Talibs in this scenario was hard to understand. Looking at the evidence in context, and having regard to Mr Giustozzi’s report, I am satisfied that it is not so hard to understand as to be incredible. It must be remembered that these are men who actions, ethos and culture are uniformly hard for us understand. The events of two days earlier, when the men chased the Appellant through the market appears to indicate that this was not in fact a wholehearted attempt at abduction or forced recruitment. They would easily have been able to chase him, and had no need to follow him home, since they already knew where he lived. It seems to me that the actions of the men in the market over those couple of days were almost lighthearted – their behaviour on Tor Ghar indicates that they were toying with the Appellant, joking about not being in his kismet to get chocolate. I agree with Dr Giustozzi’s assessment that it would appear that this was more of a warning to the Appellant’s father than anything else. Assessing the evidence in the context of the country background material, I can find no reason to reject it.

35. For the reasons set out above the Appellant did not need to prove this element of his claim to make out a risk in Laghman, but on the lower standard of proof I am satisfied that the events did take place as the Appellant describes.

Contact with family

36. I did not find that the conclusions of the First-tier Tribunal on this matter could be set aside for material error of law. Ms Fijiwala accepted however that in the re-making I would be entitled to take any new material or findings into account in making my own evaluation of whether the Appellant is reasonably likely to retain contact with his family in Afghanistan today.

37. Two things have changed since the First-tier Tribunal rejected the Appellant’s evidence on his family contact.

38. The first is that there is now medical evidence to indicate that the Appellant is suffering from various mental health complaints. In December 2016 he presented at A&E after disclosing suicidal thoughts to an adult at college. He was placed under the care of the South London and Maudsley Child and Adolescent Mental Health Service, specifically Consultant Psychiatrist Dr Simon Wilkinson who has provided a letter dated 30th December 2016 confirming that the Appellant is being prescribed anti-depressant medication and has been referred for psychological therapy.

39. I have before me the report dated 24th March 2017 of Dr Con Cullen, Consultant Psychiatrist, whose assessment is that the Appellant is suffering from a fluctuating depressive illness, moderate in severity, with associated symptoms of anxiety. He displays several symptoms of PTSD (although falls short of the full diagnostic criteria for the condition). He suffers nightmares featuring his family. Dr Cullen writes [at 5.2]: “due to the nature of his experiences in Afghanistan it is entirely possible that his post-traumatic stress disorder could affect his ability to recall information, make him distressed during interview, and make him reluctant to repeat the nature of these experiences”. The First-tier Tribunal did not have this information before it. The evidence of Dr Cullen is important to understanding the state of mind of this witness, not only during his asylum and appeal process, but at the time of the events that he was being asked to speak about. The First-tier Tribunal determination focuses on what were found to be discrepancies about when the Appellant got rid of his mother’s contact details, and the apparent inability of the Appellant to accurately recall when he last spoke with her and what they talked about. Read in the light of Dr Cullen’s report, the state of the evidence is perhaps unsurprising. This is a child who had, on his own, traversed central Asia and Europe, and spent some time in the ‘jungle’ in Calais before being concealed in a lorry to cross the channel. Those were difficult and exhausting experiences for him: he continues to suffer from sleep related issues and has described to his psychiatrist having flashbacks to seeing a dead body in the ‘jungle’. His inability to give clear evidence, or exact dates, must be seen in that context.

40. The second development since the First-tier Tribunal decision is that the Red Cross have commenced family tracing for the Appellant. A letter from the Appellant’s Youth Caseworker Ben Feder of South London Refugee Action confirmed that on the 23rd November 2016 the Appellant was accompanied by Svea Guenther of the Refugee Council to a Red Cross appointment where he supplied them with the required information. Mr Feder spoke with the Red Cross himself on the 6th April 2017 and was told that enquires were ongoing but that they had not so far yielded any results. He was advised that they would contact him within three months. At the date of the hearing before me there has therefore been a period of approximately five months where the Red Cross have been unable to yield any results in finding the Appellant’s family.

41. Having taken that new evidence into account I am prepared to accept, on the lower standard of proof, that the Appellant does not at present have any contact with his family in Afghanistan. I am however mindful of the point made by the Respondent and the First-tier Tribunal that there is a good chance that contact would be possible, through the offices of the Afghan National Army, who would presumably be able to pass on the Appellant's details to his father and brother. With that in mind I conduct my assessment of internal flight on two alternative premises: that the Appellant would be returned to Kabul as an unaccompanied minor, and that he would be able to re-establish contact with at least his father and brother should he be returned.

Internal Flight to Kabul

42. The primary submission made by Ms Sabic was that setting aside the inherent humanitarian issues in relocating a child to Kabul, the city is not at present safe for someone in the position of the Appellant. He has already been targeted by the Taliban because of his association with his father and brother, and the presence of the Taliban in the city is now such that it would not be safe for him to remain there, particularly if his contact with his “pro-government” family were resumed.

43. Although I was referred to a substantial number of documents, particular reliance is placed on the evidence of Dr Giustozzi. As Ms Fijiwala highlighted, Dr Giustozzi did accept that relocation to Kabul was possible; it is however clear from his evidence overall that it is not without risks.

44. In his first report, dated 5th November 2016, Dr Giustozzi indicated that the security situation in the capital was increasingly challenging, with a “significant infiltration” of Taliban insurgents, particularly in the south, east and west of the city. The number of targeted assassinations, attacks and truck bombs has increased year on year. If the Appellant were able to find accommodation in one of the safer – generally central – neighbourhoods he would face other problems. Accommodation in these areas is very expensive and finding any kind of employment would not be easy. Dr Giustozzi considered it very unlikely that the Appellant would be able to afford to seek sanctuary in one of these more affluent neighbourhoods. Even if he did his ability to travel around the city to look for work (or presumably other sources of finance such as NGOs) would be compromised by the risk of running into a Taliban check-point or being seen by one of their “spotters” in the large Pushtun community.

45. In his addendum report dated 23rd March 2017 Dr Giustozzi sets out new evidence that he has acquired in respect of Taliban influence in Kabul. In December 2016 his research team were able to interview Abdul Haq Haqqani, a cadre of the Haqqani network based in the city. He explained that there are now two parallel Taliban structures in operation there. The Haqqani network focuses on complex attacks against foreign installations and government offices, while the other groups of Taliban present in Kabul, primarily the Quetta Shura, focus on targeting individuals who are, or who are perceived to be, cooperating with the government and its foreign backers. This latter group operate under the control of what is called the ‘Kabul Military Commission’, and claim to have orchestrated at least 65 attacks in Kabul during 2016, including car bombs and shootings. Haqqani told the researchers that targets include army officers and “anybody who has problems with the Taliban and has been included on their black list”. Having regard to that evidence I am satisfied that Kabul does not present a safe internal flight alternative for the Appellant who would remain at a real risk of serious harm in the city.

46. The Appellant does not of course need to establish a real risk of serious harm in Kabul in order to succeed in his appeal. Because he has already established that such a risk pertains in Laghman, he need only show that conditions in Kabul would for him be “unduly harsh” or unreasonable in light of his personal circumstances. If I am wrong about the nature of the risk he faces in the city the background evidence of Dr Giustozzi is nevertheless valuable to my assessment of that test. The Taliban plainly do have an operative presence in the city and this is – at the very least – likely to cause significant subjective fear for the Appellant. Even if he manages to avoid checkpoints and ‘spotters’ he is likely to be under psychological stress in doing so. Given his earlier experiences that stress would be understandable, and grounded in objective reality. This is one factor amongst many that I must consider in my assessment of the internal flight alternative.

47. I must also consider whether the Appellant’s personal characteristics have any bearing on the reasonableness of relocation. What I know about the Appellant is that he has never worked, nor lived on his own. He has limited education. He is very young, and appears to be so. Antonia Cohen, a volunteer with the Refugee Council who has spent a lot of time with the Appellant in her capacity as a co-ordinator for the ‘Refugee Cricket Project’ expresses her surprise that the Appellant has been found to be 17: she describes him as “quiet and shy” and states “his general demeanour and lack of maturity (in the sense he is hesitant and lacks confidence) meant I had assumed he was much younger”3. Having had the opportunity to hear from the Appellant myself, that is not an assessment I can disagree with. Although the Appellant had the resilience to make it overland from Afghanistan with the “assistance” of a people trafficker, that is an experience which has left him badly affected. He suffers from depression, anxiety and symptoms associated with PTSD. Dr Cullen noted that he presented as fearful, stressed and afraid, and found that removal to Afghanistan would be “highly likely” to be detrimental to his mental health: it would “exacerbate both his depressive illness and the post-traumatic stress disorder. Furthermore, the risk of deliberate self-harm and attempted suicide, although currently difficulty to quantify, is likely to increase”.

48. Although Ms Fijiwala was unable to point to any positive improvements on the ground in respect of the security situation in Kabul, she was able to submit that that as a returnee the Appellant would qualify for a IOM resettlement grant. This money could, for instance, help him secure accommodation on arrival. The Respondent further submits that it is possible to receive psychiatric treatment in Kabul. A ‘response to an information request’ produced by the Respondent’s Country Information Unit states that various anti-psychotic medications are available in the country and that psychiatric treatment is available at the hospital attached to Kabul university and at least one private clinic.

49. I do not rule out the possibility that individuals are presently obtaining psychiatric treatment in Kabul. I must however assess whether it is at all likely that this individual will be able to do so. I find, on the basis of Dr Giustozzi’s detailed and well sourced evidence, that it is in fact very unlikely. In 2010 there were only two psychiatrists in the whole country. That startling figure has since improved, with approximately a further 70 doctors receiving some specialist training, and the EU funding the rehabilitation of the mental health hospital in Kabul, which now has 60 beds. But in a country where an estimated 60% of the population suffers from some kind of mental health problem (by the World Health Organisation’s 2010 estimate) the chances of obtaining regular and effective care would, I agree with Dr Giustozzi’s assessment, be slim indeed.

50. What I am left with is this. There is a possibility that the Appellant could relocate, using the IOM financial grant to help at secure accommodation in a relatively safe neighbourhood, at least in the short term. There is a possibility that he could find work in the city, notwithstanding his lack of experience, education and connections. There is a possibility that he may be able to obtain anti-depressant medication, or even some form of psychiatric/psychological intervention to help him cope with the deterioration in his mental health that Dr Cullen thinks would be very likely on removal from the UK. There is a possibility that he would be able to find or at least speak to his family, although I bear in mind that he may not wish to expose himself to the further risks that direct contact with his father and brother may bring. These possibilities – all slim, some slimmer than others - exist against the background of objectively verifiable certainties in the city.

51. The humanitarian situation has not markedly improved since the Tribunal gave the country guidance of AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163(IAC). Conditions for IDPs remain challenging. The security situation is difficult. The very people whom the Appellant fears have made significant inroads into the capital in recent years, and have confirmed to Dr Giustozzi’s research team that they continue to view those who have crossed them as legitimate targets for assassination4. The Appellant has already had an extremely frightening interaction with the Taliban. Even if the risk presented by them in the city fell short of the standard required to make out a real risk of harm or to engage Article 15(c), life there would feel unbearably precarious for the Appellant. With the fear of assault hanging over him I find it unlikely that he would manage to lead any kind of ‘normal’ life.

52. Having considered all of those factors in the round I cannot be satisfied that Kabul presents a reasonable internal flight alternative for the Appellant.

53. I have made those findings on the basis that the Appellant, could if he so wished, re-establish contact with his family. If he cannot, or justifiably fears that it would be too dangerous to do so, the additional factors pertaining to unaccompanied minors come into play: AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC):

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.

Decisions

54. The decision of the First-tier Tribunal contains material errors of law. It is set aside to the extent set out above.

55. The decision in the appeal is remade as follows:

“The appeal is allowed on asylum grounds.

The Appellant is not entitled to humanitarian protection because he is a refugee.

The appeal is allowed on human rights grounds”

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

Upper Tribunal Judge Bruce
24th April 2017