Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04956/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 December 2016
On 20 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

Manmohan Singh
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Professor W Rees of Counsel, instructed by Quality Solicitors Orion
For the Respondent: Mr P Nath, Specialist Appeals Team

DECISION AND REASONS
The Appellant
1. The Appellant is a citizen of Afghanistan whose date of birth is given as 1 January 1993. He is a Sikh. He arrived in the United Kingdom clandestinely in October 2015 and on 30 November 2015 claimed asylum because he feared persecution on return to Afghanistan on account of his religion. He is single and has no dependants. His mother tongue is Punjabi.
The Respondent's Decision
2. On 4 May 2016 the Respondent refused his claim for international protection. She accepted he came from Afghanistan but did not find credible his claim to be a Sikh or to have suffered persecution or ill-treatment on that account and concluded he would not be at real risk on return to Afghanistan. On 17 May 2016 the Appellant through his solicitors lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended, in particular by the Immigration Act 2014 (the 2002 Act). The grounds are brief and generic referring to Articles 2 and 3 of the European Convention on Human Rights and a risk of persecution on account of his religion.
The First-tier Tribunal Proceedings
3. By a decision promulgated on 25 October 2016 Judge of the First-tier Tribunal N M Paul dismissed the appeal. He found that although the Appellant is a Sikh his account of claimed persecution or ill-treatment in Afghanistan was not credible and he dismissed the appeal on all grounds.
4. On 17 November 2016 Designated Judge of the First-tier Tribunal Murray granted the Appellant permission to appeal on the ground that it was arguable the Judge had failed to apply the guidance in the decision in TG & Others (Afghan Sikhs Persecuted) Afghanistan CG [2015] UKUT 00595 (IAC). The permission also referred to the ground for appeal that the Judge had given no explanation why the Appellant's claim could not succeed under paragraph 276ADE(1)(vi) since there were significant obstacles to his integration on return. Further, what the Judge had found to be unsatisfactory about the Appellant's claim was insufficient to justify its rejection, taking into account the trauma suffered by the Appellant and that the Judge had sought corroborating evidence.
The Upper Tribunal Hearing
5. The Appellant attended the hearing. It became apparent in the course of my opening introduction that he understood very little English.
6. Professor Rees relied on the grounds for permission to which reference has already been made. He then turned to the Judge's treatment or lack of treatment of the guidance in TG and referred me to paragraph 119 of the decision and in particular sub-paragraphs (iii)-(v). There were very significant obstacles to the re-integration of the Appellant on return to Afghanistan and the unsatisfactory aspects of the Appellant's evidence were insufficient to justify the Judge's dismissal of his claim. The Judge had failed to consider the trauma suffered by the Appellant on leaving Afghanistan and the loss of his parents. The Judge had referred to the absence of corroborative evidence but corroboration in asylum appeals was frequently not a possibility and at law was not a requirement. Professor Rees referred to the Appellant having an elder brother who has been in the United Kingdom since 2001 and is a United Kingdom citizen. He mentioned the Appellant's brother could not be present because he was temporarily out of the United Kingdom and added that the brother was very religious.
7. Professor Rees then turned to the Respondent's response under Procedure Rule 24. The response asserted that "in the light of the core elements of persecution in Afghanistan being found unreliable and incredible at paragraph 21 (of the decision) the grounds fail to identify which circumstances would give rise to persecution upon return." The Appellant had suffered persecution in Afghanistan and would be destitute on his return. The Judge had not fully dealt with these aspects at paragraphs 21 and 22 of his decision. The Appellant would be unable to relocate in the light of the evidence summarised at paragraph 119(v) of TG and he would not be able to relocate without undue hardship.
8. At paragraph 4 of the Rule 24 response the Respondent had exaggerated the position when addressing the Appellant's grounds under paragraph 276ADE of the Immigration Rules. The Appellant had suffered trauma and had lost his parents and a brother. The Appellant has continued to assert his claim for asylum or, alternatively, his entitlement under paragraph 276ADE(1)(vi) because there were insuperable difficulties to his reintegration on return to Afghanistan.
Submissions for the Respondent
9. Mr Nath relied on the Respondent's response under Procedure Rule 24. The Appellant relied on the Judge's finding in paragraph 22 of the decision that the Appellant is a Sikh. The Judge had referred to the country guidance case of TG at paragraph 11 of his decision and indeed it had been expressly addressed by the Respondent at paragraph 64-68 of the Respondent's original decision. Although it might be argued that the Judge could have dealt with the guidance in TG at greater length than he did in his decision, he had adequately taken account of the guidance and considered it.
10. The findings about the lack of evidence and the vague, evasive and unsatisfactory answers to questions about what had happened to the Appellant in Afghanistan were supported by the finding in paragraph 18 of the Judge's decision about the evidence or lack of evidence from the Appellant's brother. On such evidence as there was before the Judge, his treatment of the claim under Article 8 whether within or outside the Immigration Rules at paragraph 23 of his decision was satisfactory. This included the brief treatment of the factors referred to in Section 117B of the 2002 Act.
Reply for the Appellant
11. Professor Rees reiterated that the Judge had not sufficiently considered the guidance in TG. He wished to make it clear that the Appellant's claim under Article 8 of the European Convention on Human Rights was only within the Rules and so in this case limited to paragraph 276ADE(1)(vi). He continued that once the Judge had found in favour of the Appellant's claimed religion, he should have looked more closely at the guidance in TG.
Findings and Consideration
12. The first point to note is that the Appellant's grounds of appeal to the First-tier Tribunal did not raise any claim under Article 8 of the European Convention nor any ground based on private and family life in the United Kingdom which might have engaged paragraph 276ADE(1) of the Immigration Rules. This is notwithstanding that the Respondent dealt at paragraphs 79-84 of her decision letter with any potential claim under Article 8 whether within or outside the Rules. It appears that the Appellant's claim under paragraph 276ADE(1)(vi) was argued before the Judge on Article 3 grounds and then in a lesser version under the guise of Article 8 outside the Immigration Rules.
13. Notwithstanding the Upper Tribunal's standard direction there was no further evidence or other documents filed for the Appellant. I accept the force of that direction may have been somewhat reduced by reason of the refusal of the Upper Tribunal to arrange for an interpreter but nevertheless the Appellant had been alerted to the possibility that further documentary evidence might be filed with the permission of the Upper Tribunal.
14. The record of the interview of the Appellant and his statement do not point to any potential claim in respect of private and family life in the United Kingdom which could be made based on Article 8 of the European Convention on Human Rights either within or outside the Immigration Rules. In the circumstances the Judge's brief disposal of any Article 8 claim is sufficient. It is of note that paragraph 23 dealing with this aspect of the claim was based on a consideration of the Appellant's private and family life in the United Kingdom as evidenced by the opening words "the fact is that the Appellant has been in the country for a very short period of time and has not established any significant family ties". The statement of the Appellant's brother of 27 September 2016 gives no details of the private and family life that the Appellant and his brother shared in the United Kingdom. It comprised a number of general statements asserting risks to Sikhs both male and female in Afghanistan. There is no reference to any particular circumstances in which the Appellant or indeed even his brother had been involved. His statement is in similar if not identical form to the statements given by other more distant family members and friends and the only indication that a particular individual, Manjit Singh Rajwansi, is the Appellant's brother is that he is described as his brother in a letter of 28 September 2016 from the Gurudwara Guru Nanak Darbar in the Appellant's bundle. There was no other evidence from the Appellant's brother and indeed there was no explanation either before the Judge or before me for the absence of any other documentary evidence from the brother or documentary evidence to explain his absence. On the basis of the evidence which was before him the Judge was entitled to deal with the claim based on the Appellant's private and family life in the United Kingdom in the manner in which he did.
15. The burden of proof, albeit to the lower standard, is on the Appellant. The Judge was entitled at paragraphs 18-21 of the decision to take the points about lack of sufficiency of the evidence. I find he was justified in and gave adequate reasons for finding in effect that the Appellant had failed to discharge the burden of proof.
16. Given that the Appellant had failed to discharge the burden of proof and that the Upper Tribunal in TG had made it clear that any consideration of whether an individual member of the Sikh community is at real risk of persecution upon return to Afghanistan is fact-sensitive, and the Judge's adverse credibility finding, there was little if any need for the Judge to engage at length with the guidance in TG because the guidance said that the consideration of risk on return was fact-sensitive. The Appellant had failed to establish any particular or individual facts and circumstances upon which the Judge might have been required to make a finding under TG. It is of note that a claim under Article 15(1)(c) of the Qualification Directive 2004/83/EC was neither raised in the original grounds of appeal nor indeed argued before the Judge.
17. For these reasons I find that on the evidence which was before the Judge and there has been no suggestion that there is any additional evidence which might be considered by the Upper Tribunal, the Judge was entitled to reach his conclusions and gave adequate reasons for them. On the evidence before the Judge I do not find that a differently constituted Tribunal would have come to any other conclusion and that whatever complaints might be made about the brevity of the Judge's decision they are not such as to show that the Judge made any material error of law such that his decision should be set aside.
18. The consequence is that I find there is no material error of law as to find the setting aside of any part or the whole of the Judge's decision and the appeal is dismissed.
Anonymisation
19. The Judge anonymised his decision and made an anonymity direction. There was no application at the hearing before me for it to be continued and at the end of the hearing I informed Professor Rees that I saw no reason for continuing the anonymity direction or the anonymisation and unless I heard promptly from his instructing solicitors with good reasons to continue them, I would discontinue both the anonymity direction and the anonymisation of the decision. I have heard nothing further on the issue and so this direction and order shall no longer apply.

NOTICE OF DECISION
The decision of the First-tier Tribunal did not contain any material error of law such that it should be set aside and it shall stand.
The Appellant's appeal has been dismissed.
Anonymity direction discontinued.

Signed/Official Crest Date 19.xii. 2016
Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal