Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: Pa/05037/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2017
On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Mr ZABIULLAH ROKHAN
(no ANONYMITY DIRECTION MADE)

Appellant
v

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms M. Harris, counsel instructed by JD Spicer Zeb solicitors
For the Respondent: Ms J. Isherwood, Home Office Presenting Officer

ERROR OF LAW DECISION AND REASONS

1. The Appellant is a national of Afghanistan, whose age is disputed (1.1.00 or 1.1.97). On 28.11.15, he was encountered by police, having entered the United Kingdom illegally from France and claimed asylum, on the basis that he feared persecution from the Taliban, who kidnapped him and wanted him to work for them because his brother worked for the government. The asylum application was refused in a decision dated 4.5.16 and the appeal against this decision came before First tier Tribunal Judge Chana for hearing on 7.10.16. In a decision promulgated on 21.11.16 she dismissed the appeal.

2. The grounds in support of the application for permission to appeal to the Upper Tribunal assert that the Judge erred materially in law: (i) in treating the Appellant as an adult and by determining that he had told the Respondent he was born in 1997 rather than that he was aged 16, alternatively the Judge failed to provide any reasons for doubting the Appellant’s age which he stated was 16 years and in failing to adjourn the appeal for an age assessment to take place. Consequently, the Appellant has not had an age assessment; the benefit of social services care, housing or an appropriate adult; no consideration of section 55 of the Borders, Citizenship & Immigration Act 2009 and there has been no extra allowance for the benefit of the doubt; (ii) in refusing to admit material documentary evidence submitted by fax on the day of the hearing; (iii) in making a material error of fact at [31] in failing to take account of the fact that the Appellant’s brother disappeared in 2006 after being blamed for the death of the governor and in failing to recognise that the Appellant was the oldest male of fighting age.

3. Permission to appeal to the Upper Tribunal was granted by Judge of the First tier Tribunal Landes on 30.1.17 on the basis that whilst it is not right to say that the judge gave no reasons for doubting the Appellant’s age: see [26], it was arguable that she did not give adequate reasons as she did not explain why she rejected the oral evidence that he had given his age in his interview and why she did not consider that the Appellant contended in the grounds of appeal that his year of birth was 2000. If the Judge did err in relation to the Appellant’s age it is arguable that she approached her findings on the wrong basis. It was also arguable that the Judge did mistake the facts of the Appellant’s case to some extent as it was clearly his case that his brother had disappeared which may be relevant to the risk to the Appellant as the only remaining young male of the family.

Hearing

4. At the hearing before me, Ms Harris sought to rely upon her grounds of appeal. She drew my attention to the screening interview of 28.11.15 at A1 of the Respondent’s bundle, at which time the Appellant was not represented and also claims to be illiterate. His date of birth has been typed at the outset along with his name and basic details and do not appear to be necessarily part of the answer. The Appellant said he did not say that his date of birth was 1.1.97 and did not know the English calendar and cannot read English. In respect of the substantive interview of 19.4.16 again the date of birth has been typed in and it is noted at Q5 “The Legal executive informed me earlier on, that your date of birth was disputed.”

5. In respect of the Judge’s decision, it is clear from the first sentence that the Judge records the Appellant’s date of birth as 1.1.97 but this was in dispute and shows a lack of reasoning by the Judge. At [20] the Judge notes the application for adjournment, which was a live issue during the hearing and at [22] held: “I considered that the appellant did not claim to be a minor at his screening or asylum interview.’ At [26] the Judge purported to embark upon an analysis of the Appellant’s age, but this fell woefully short of a Merton compliant assessment and there is no detailed analysis of matters of fact. Mr Harris sought to rely upon the judgment in R (ZS) v SSHD [2015] EWCA Civ 1137 at [4] and [8] and submitted that the meticulous approach there was lacking in the Appellant’s case.

6. Ms Harris further sought to rely upon the judgment in Home Office v VS [2015] EWCA Civ 1142 in that it is necessary to act quickly when there is a claim to be a child and that section 55 of the Borders, Citizenship & Immigration Act 2009 must come into play. In respect of the Merton decision itself, this highlights that minimum standards of enquiry are required and at [45] that the local authority are obliged to give adequate reasons for a decision that a child is not a child as the consequences may be drastic and a child is entitled to know the basis of the decision. Ms Harris submitted that there has not been an adequate consideration of the Appellant’s age and no adequate reasoning has been provided for not accepting his age; the decision was not Merton compliant and has negatively impacted on the assessment of credibility.

7. Ms Isherwood submitted that there is no material error of law in the Judge’s decision. The typed copy of the interview gives the Appellant’s date of birth as 1.1.97 and he answers Yes at Q.5 to this date of birth and signed every page of the interview record. At [20] of the decision the Judge acknowledges the adjournment request and the fact that the Appellant did not say he was born in 1997 but said he was 16 years old. At [25] of the decision the Judge held that the Appellant had very little knowledge of his brother’s involvement in the government and noted his claim that this was because he was born in 2000. At [26] the Judge found that no credible evidence was provided by the appellant for how he knows he was 14 year old at the date he left Afghanistan, given that in his witness statement he claims has never used dates in Afghanistan. Ms Isherwood submitted that the Judge considered two alternatives ie whether the Appellant was 18 or 14 years of age and was entitled to find that the Appellant was distancing himself from his earlier evidence and that he was not credible. The finding at [27] in the alternative, that even if the Appellant was 14 when he left Afghanistan it was not credible that he could not remember to ask his brother or his family his brother’s occupation.

8. In respect of the adjournment request the Judge listened to both sides. Ms Isherwood submitted that the remainder of the grounds of appeal were incorrect. She drew my attention to [28]-[33] of the Judge’s decision and the fact that the Judge gave reasons for rejecting the credibility of the Appellant’s claim. She submitted that even if the Judge had considered the Appellant to be a child, the claim was not accepted and credibility was not accepted.

9. In response, Ms Harris submitted that in respect of the timing as to when the issue of age was raised, it was on the application form to the grounds of appeal and it was also raised in the second interview. She drew my attention to [20] and the fact that the lack of a Respondent’s bundle was raised and in fact there was still no Respondent’s bundle and the Appellant’s statement was prepared before the hearing without the Respondent’s bundle. The Appellant was unrepresented at the first interview. Several statements were contained within Question 5 of the substantive interview and it was not a safe matter to assume that the Appellant was not disputing his age. This is an Appellant who said all the way through that he is 16 years of age. The issue is whether there is adequate consideration of his age, rather than no consideration of his age, in light of the terms of the grant of permission to appeal and this does affect the credibility findings as a whole. At [28] the Judge finds that the Appellant relies on his young age, which she rejects as a reason he would not know dates and times. Ms Harris submitted that the Judge’s approach to the Appellant’s age tarnished the rest of her judgment and she had effectively shifted the onus back onto the Appellant. Once the issue was raised the Appellant was entitled to a Merton compliant age assessment. The issue was clearly raised throughout and was an important issue in light of section 55 of the Borders, Citizenship & Immigration Act 2009.

Decision

10. I find that First tier Tribunal Judge Chana erred materially in law in the manner in which she approached the issue of the Appellant’s age. I find that it was clear from the substantive interview that the Appellant had instructed his solicitors that he was 16 years of age and that Question 5 is potentially ambiguous given that it is a multiple question. The Judge at [22] rejected the Appellant’s claim to be a minor at his screening or asylum interview but as I have made clear this is not quite correct. Regardless of when the issue of his age was raised by the Appellant, I consider that the Judge erred at [22] in rejecting the application for an adjournment simply on the basis that she considered that his claim to be a minor had been brought up late without any explanation for this. The grounds of appeal to the First tier Tribunal clearly assert that the Appellant was born on 1.1.00. Whilst the Judge was not obliged to adjourn the appeal in order for an age assessment to be undertaken, I consider she fell into error in her reasons for refusing the adjournment.

11. I accept Ms Isherwood’s submission that the Judge considered the Appellant’s claim to be 16 years of age at [25]-[28] however, I also accept Ms Harris’ submissions that the Judge’s consideration of this aspect of the case was inadequate in respect of her reasoning for rejecting his claim in this respect. The only reason provided in addition to those at [22], which I find unsustainable, is at [26] as to how the Appellant knew he was 14 years of age when he left Afghanistan if he has never used dates, however, knowing or being informed of his age is not necessarily the same thing as using dates in the sense of a calendar. I further accept Ms Harris’ submission that the Judge’s approach to the issue of the Appellant’s age effectively tarnished her credibility findings as a whole cf. [26] where the Judge held: “I find that the appellant is distancing himself from his earlier evidence that he is an adult because he cannot explain the inconsistencies in his evidence and wants to stand behind his claimed youth for not knowing” and [28] “The appellant once again relies on his young age not to know when the governor was killed. I find that the appellant could leave the country and cross boundaries would not be too young to know the dates and times which form the basis of his claim.”

12. Given the central importance of the Appellant’s age, for the reasons set out in the first ground of appeal, I find that the decision of the First tier Tribunal Judge is vitiated by errors of law in her approach to that issue. I remit the appeal for a hearing de novo before a First tier Tribunal Judge other than Judge Chana. Whilst I do not make any formal directions, the Appellant’s representatives would be wise to obtain any evidence as to the Appellant’s age upon which they wish to rely prior to remitted appeal hearing before the First tier Tribunal and to serve this upon the Respondent and the First tier Tribunal in a timely fashion ie. at least 5 working days before the re-listed hearing.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

19 April 2017