Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05124/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 January 2017
On 10 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE RAMSHAW

Between

A N
(ANONYMITY DIRECTIon made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms J Elliott-Kelly of Counsel
For the Respondent: Mr E Tufan, 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 citizen of Afghanistan who was born on 1 January 2001. He was 14 years and 8 months of age at the date of the hearing before the First-tier Tribunal. He arrived in the United Kingdom clandestinely and claimed asylum at a police station on 15 September 2015. His claim for asylum is based on his fear of persecution in Afghanistan on the basis of his imputed political opinion and on the basis of his age as a child returning without family members. On 6 May 2016 the respondent refused the appellant’s claim. The respondent did not consider that the appellant’s claim was credible.
The appeal to the First-tier Tribunal
3. The appellant appealed against the respondent’s decision to the First-tier Tribunal. In a decision promulgated on 24 October 2016 First-tier Tribunal Judge Gribble dismissed the appellant’s appeal. The First-tier Tribunal did not accept that the appellant would be at risk of persecution if he were to be returned to Afghanistan as it did not accept that the appellant’s account was reasonably likely to be true. The First-tier Tribunal also considered that the appellant was not in need of humanitarian protection.
4. The appellant applied to the Upper Tribunal for permission to appeal against the First-tier Tribunal’s decision. On 28 November 2016 First-tier Tribunal Judge Shimmin granted the appellant permission to appeal. Thus, the appeal came before me.
The hearing before the Upper Tribunal
5. The grounds of appeal assert firstly that the judge materially erred in her approach to the expert evidence. It is asserted that contrary to the case of Mibanga [2005] EWCA Civ 367 the judge has fallen into error in that she failed to consider the appellant’s credibility holistically and to treat Mr Foxley’s expert report as potentially corroborative as the appellant’s account. It is asserted that the judge has effectively put the cart before the horse in first rejecting the appellant’s account as not credible before dismissing Mr Foxley’s conclusions. In particular it is asserted that it is not sufficient for the judge to “note” Mr Foxley’s conclusions at paragraph 39. The judge was required to give reasons as to why she has rejected that evidence and the other evidence relied upon by the appellant from the UNHCR and Human Rights Watch which significantly postdates the evidence referred to by the judge, namely an EASO report from 2012 and a COIS report from May 2013. It is asserted that the judge has failed properly to take into account the extensive report of Mr Foxley, in particular his evidence as to the recruitment techniques by the Taliban which are relevant to the appellant’s account of his father’s recruitment by them. Reference is made to paragraph 35 of Mr Foxley’s report where the report sets out:
“Overall, A’s description of the area from which he claims to originate, his family circumstances and the family dynamic reads very plausibly when considered against the background information. A’s account of his own engagement with the Taliban in a training camp in the mountains in which he and other young recruits getting weapons training and education also reads very convincingly.”
6. Ground 2 asserts that the credibility findings of the judge are irrational as she failed to take into account material evidence. In particular, reference is made to the account of the timing of the appellant’s father’s death. It is submitted that the judge has placed too much emphasis on a minor discrepancy that was explained. It is asserted that detail was given in the skeleton argument before the First-tier Tribunal that explained why the first paragraph of the witness statement cannot be correct. The skeleton argument set out:
“Moreover R has relied upon an error in A’s asylum statement whereby it was mistakenly recorded that he remained in Afghanistan for roughly one year following his father’s death. However,
i. A’s representatives confirm that this was a miscommunication;
ii. the more detailed aspects of the same statement support his claim that his father died approximately six months before arriving in the UK (and indeed his explanation above that he approaches the timeline in steps):
“After my father passed away, initially for maybe a month or two I continued going to the mosque … but after that the Taliban wanted me to join them”;
“I believe I attended the Madrassah for overall roughly a month or a month and a half”;
“My journey from Afghanistan to Calais lasted roughly three months and then it took another few days for me to arrive in the UK”.
iii. His staged approach to the timeline is further corroborated by the manner in which he approached the questions in interview.”
7. It is asserted that it is clear from the judge’s adverse findings on credibility regarding the appellant’s account of his father’s death and Taliban involvement, led directly to her rejection of his account of being forced to attend the Madrassah where was trained in weapons. It is asserted that it is clear that the only basis for her rejection of this aspect of the appellant’s claim was the inconsistency. At the hearing before me Ms Elliott-Kelly submitted that the judge fell into the trap set out in paragraph 24 of the Mibanga. She submitted that the judge highlighted inconsistencies and made a finding on credibility and only after doing so then moved on to consider the other evidence. She referred to paragraph 41 of the decision and submitted that Dr Foxley’s report was corroborative of the appellant’s account. She asserted that no issue had been taken with regard to Mr Foxley’s credentials. She submitted that the only reference to Mr Foxley’s 95 paragraph long report was at paragraphs 41 and 46 of the decision.
8. In relation to ground 2 she submitted that the issues taken with credibility are at paragraphs 36 to 37 of the decision concerning the timing of the appellant’s father’s death. She submitted that this matter was significantly canvassed before the judge and that the judge’s approach to the evidence was wholly irrational. The judge placed great weight on the witness statement and the experience of the solicitors considering that it would be highly unlikely for them to make such a mistake. If the judge placed great emphasis and weight on the experience of the solicitors she has not explained why on the one hand the solicitors cannot have made a mistake as to the timing of death and yet within the same witness statement the timings amount to a six month period of time. The internal inconsistency has not been addressed by the judge. She also submitted that insufficient regard had been paid to the appellant’s age when assessing credibility. She submitted that the fact that the appellant separates the timings into blocks of time is consistent with his age and level of maturity. She submitted that the appellant has been consistent in his timings when broken the timings down into steps.
9. She submitted that if the judge had taken the expert and other objective evidence into account and rejected it she ought to have given reasons. She submitted that the judge accepts that the account given by the appellant is broadly consistent and corroborative of the evidence but she rejects the account that he was taken and trained in weapons but does not say why she rejects that account.
10. She submitted that the Rule 24 response refutes the appellant’s argument and suggests that the AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) (‘AK’) country guidance case would mean that the appellant would not be at risk in any event and therefore any error of law would not be material. She submitted that in AK at paragraph 247 there is no departure from the child specific guidance given in the case of AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) (‘AA’). She submitted that this appellant is a minor and therefore the risk on return must be assessed as if the appellant were to be returned today as a minor. She relied on the cases of HK and Others (minors-indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) (‘HK’) and AK submitting that if the appellant has adverse credibility findings that were ignored because the error of law was not material, any future Tribunal would be bound to look at the First-tier Tribunal’s decision as a starting point. She submitted that the First-tier Tribunal’s decision, if there was an error of law in the approach taken, might have led to different conclusions on credibility.
11. Mr Tufan relied on the Rule 24 response. He submitted that it was open to the judge to arrive at the credibility findings that she did. He submitted that the judge could only work from documents in front of her and that it was clear from those documents that there were discrepancies, therefore the conclusions at paragraphs 38 and 39 were ones that were open to the judge. He submitted that the challenge to the credibility findings were on the basis of irrationality and that as this was a very high threshold to overcome. He submitted that the arguments were merely a disagreement with the findings of the judge. Mr Foxley’s report suggested that the appellant’s account was plausible but this was not the role and the function of Dr Foxley, this was the function of the Tribunal. He referred to paragraph 26 of the First-tier Tribunal’s decision where the judge had referred to the expert report and also did so at paragraphs 41 and 46.
12. He submitted that the approach to risk on return ought to be consideration of the appellant being returned as an adult because he will not be returned until he is 18 therefore the approach should be hypothetical return as an adult today. He noted that the judge referred to the AK case at paragraph 48 and that he notes headnote 3 of AK. He submitted that the appellant’s history is that his uncle arranged for his departure and physically took him to Kabul. He referred to paragraph 13 of the Reasons for Refusal Letter and submitted that it was clear that the uncle could come and meet the appellant in Kabul.
13. He referred to the expert report at paragraph 76 and submitted that coupled with the case of AK the reasonability of relocation to Kabul for the appellant is accepted by the expert and that therefore if there were any errors they are not material.
14. He referred to AK at paragraph 253 and also to paragraphs 212 and 224 which concern the assistance given to returnees on return to Afghanistan. In AK the Tribunal found that it was not unreasonable to return to Kabul and that Dr Foxley’s expert report at paragraph 77 contains nothing more than what was advanced in the case of AK. He submitted there would be no risk on return.
Discussion
15. I commence with the findings regarding the timing of the appellant’s father’s death. The judge begins at paragraph 34 of the decision with the consideration of the evidence and the findings of fact. She commenced by setting out that she bore in mind the young age of the appellant and the guidance in Chapter 8 of the UNHCR Refugee Children: Guidelines on Protection and Care. The judge also set out that the benefit of the doubt should be liberally applied. At paragraph 35 she stated “with this in mind I considered all of the evidence both written and oral in the round”. The judge set out at paragraph 36:
“36. I begin with the account of the date of his father’s death. The first account, in his signed witness statement, accepted by him at the AIR to be true, that his father died a year before he left Afghanistan. This would be around June or July 2014 as he arrived in the UK in September 2015. Later in the AIR he says at question 157 it was a year and a half before the interview, which would be around October 2014. His solicitors, despite having prepared his witness statement which he signed as true after being read to him, then wrote to the respondent to say there had been a miscommunication in the statement process and it was only one to two months after his father’s death when the Taliban began taking him to the Madrassah, and it was one to two months after that when he left, making the date of his death around March 2015.
37. I cannot accept that experienced solicitors would make such an error. There was no statement from the solicitor or clerk who took the instructions to confirm this and no statement from the interpreter who read the statement to the appellant either. The traumatic death of a parent and the subsequent funeral would in my view leave a lasting and indelible impression, even for a young man who has not been highly educated. I did not find it credible that he could not be more specific, and crucially, consistent about the date of his father’s death. I did not accept experienced representatives would make such an error. I find the appellant has not told the truth. I find his father was not killed in combat or otherwise.
16. I accept that the judge has not given reasons for rejecting the argument put to her that the witness statement prepared by the ‘experienced solicitors’ was internally inconsistent with regard to the time period when the appellant’s father died. However, there was a further inconsistency with regard to the timing referred to by the judge (set out above) in the asylum interview. Further, the judge was concerned not only with the inconsistency in dates but also the fact that the appellant could not be more specific about the date of such a traumatic event. She took into account the appellant’s age and lack of education when reaching the finding that the appellant had not told the truth. This was a finding that was open to the judge on the evidence before her. This was only one element of inconsistency considered by the judge. I set out the judge’s consideration of various elements of the appellant’s account in full below:
38. This was not the only inconsistency in the account. His initial account was that his father had never spoken to him about the Taliban yet he knew they had threatened him, which is not consistent. His account that his father was fighting and was ‘involved in combat with the Taliban’ (WS8) was not consistent with his account in the AIR that when there was fighting his father was not taking part, and was also not consistent with him claiming not to know what his father did.
39. In terms of his father being forced to join the Taliban, I reject this as not being consistent with the background evidence. The July 2012 EASO report indicated that coercion was rare, that there was greater use of genuine persuasion and appeal to the patriotic or religious duties, and there were few recorded cases of actual violence against individuals escaping recruitment and it would be against the Taliban’s stated aims of good governance, and alienate communities. The report also outlines that forced recruitment can take place in refugee camps but the appellant and his family were stable and prosperous in their village where they were landowners and farmers.
40. The COIS report of May 2013 echoes this. The Taliban would have no need to threaten to recruit the appellant’s father. In any event if his father told him nothing the appellant would not know his father was forcibly recruited. Both positions cannot be true.
41. I move on to the account that after his father’s death the Taliban rounded him up and forced him to attend the Madrassah where he was trained in weapons. His account has been broadly consistent but as I have not accepted his account around his father’s death and involvement to be true, similarly I do not find his account of this aspect of his case to be reasonably likely to be true either and I find that it has been fabricated to support his claim. I note Mr Foxley at paragraph 39 of his report says the account reads ‘very plausibly’ but for the reasons outlined above I have not found it credible.
17. The judge has not made findings on credibility prior to considering Mr Foxley’s report or any of the other evidence provided. The judge has clearly read the background country material setting out what she considered to be key elements in relation to the specific aspects of the appellant’s claim that she was considering – forced recruitment of the appellant’s father. It is clear that she preferred the evidence from the COIS and EASO reports, that coercion was rare, to Mr Foxley’s report. She acknowledged that forced recruitment can take place in refugee camps as identified in the EASO report but the appellant’s circumstances were that his family were stable and prosperous in their village. She had clearly read Mr Foxley’s report and identified his view about the appellant’s account. There must be some structure to a written judgment. In this case there were a number of inconsistencies. The judge has given her reasons for rejecting the appellant’s account. I accept that the judge does not refer in detail to Mr Foxley’s report. However, if there is a divergence in expert opinions and/or objective evidence a judge does not have to go through each to identify what is and is not accepted. The judge has rejected the appellant’s account of his father’s forced recruitment and his own involvement with the Taliban giving specific reasons. In doing so she also took into account the objective evidence specifically citing the COIS and EASO reports and Mr Foxley’s view. The judge did not err in her approach to the expert evidence.
18. It is asserted that the judge’s credibility findings were irrational. I have set out above some of the findings on credibility. There were further inconsistencies identified by the judge:
42. I turn to the somewhat confusing account of the sons of the man who was in dispute with his father beating him. The account changed over time and became more elaborate and embellished. The written evidence was that there had been a dispute, a fight, a one off incident. The oral evidence was that there were regular ‘beatings’ taking place. These were, variously, three to four times a week, not every week, and three to four times a week in the course of my efforts to obtain clarity alone. The account then was that these young boys were rich and powerful and could travel wherever they liked. They would kill the appellant even if he went to Kabul. This was not mentioned at all in the interview and whilst I appreciate Ms Elliot-Kelly’s submission that this was not part of his claim for protection, the fact it was so vague and confusing cannot lead me to find it is credible either although it does not engage the Convention.
43. I come to his account of his departure from Afghanistan. He claims to have been playing when it was discussed between his mother and uncle and had no idea he was leaving, thinking he was going with his uncle (whose name he does not know) for a trip. He gives no indication of how the money was raised.
44. He says he did not know he was to come to the UK but I reject this as the SCR is very clear and he says in two places that he was told he was coming to the UK. I reject his account that he did not say this. It is clear on the face of the document, and I have no reason to doubt that what he said was recorded accurately.
45. He says he does not know how much money was paid for his journey but if he asked for something on his journey he was given it. He says he was told not to claim asylum in Hungary as it was not good there. These are not the actions of someone seeking safety from the Taliban. He could have gone to a nearer place at less risk and at less cost. They are the actions of a family who want to send their son to the UK for a better life. The appellant was told he was going to the UK and that is what was paid for. He is not fleeing persecution, he is seeking a better life in the UK.
46. The appellant does not say the Taliban were in control in his home area. The report of Mr Foxley says that there is combat in the Laghman area but provides no evidence that the Taliban were in control. The evidence he provided showed that there had been violent clashes between security forces and insurgents in Laghman province, in which members of the Taliban and the security forces have been killed.
47. In accordance with paragraph 339L of the Immigration Rules, I accepted that the appellant had made a genuine effort to substantiate his claim, all material factors at his disposal had been submitted, and a satisfactory explanation regarding any lack of other relevant material had been given. He had given a reason for not having made a human rights claim in Hungary as he was being taken on his family’s instructions to the UK. I found his account of his father’s death to lack credibility due to the inconsistencies identified. His account of his father’s recruitment was contrary to background evidence. Even allowing for his young age and the liberal application of the benefit of the doubt, I did not find his account reasonably likely to be true.”
19. The judge has set out with sufficient clarity and with sufficient detail the reasons why she has found the appellant’s account not reasonable likely to be true. The judge had the benefit of seeing the witness and hearing his evidence at first hand. She has made allowances for his age. The findings of the judge were ones that were open to her.
20. There were no material error of law on the judge’s approach to the evidence or in her findings on credibility.
21. No specific appeal was made against the judge’s finding in relation to risk on return. Rather it was submitted that this was infected by the erroneous credibility findings of the judge. Ms Elliott- Kelly submitted the risk on return must be assessed as if the appellant were to be returned today as a minor and that if there was an error of law in the approach taken it might have led to different conclusions on credibility and that would potentially feed into any future assessment of risk on return. I have found that there was no error of law in the judge’s approach to the evidence and the findings on credibility. However, as submissions were made as to the correct approach to assessing risk on return I will deal with that issue briefly. Mr Tufan submitted that the approach should be a hypothetical return as an adult today because the appellant will not be returned until he is 18. I do not accept that submission. I accept Ms Elliott-Kelly’s submission, as is clear from cases such as AA and HK, that the approach is whether the appellant would be at risk if returned today as a child. The judge in this case adopted that approach.

22. There was no material error of law in the First-tier Tribunal’s decision. The decision of the respondent stands.

Signed P M Ramshaw Date 6 February 2017

Deputy Upper Tribunal Judge Ramshaw