(Immigration and Asylum Chamber) Appeal Number: PA/05215/2018
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 18 November 2019
On 21 November 2019
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
(ANONYMITY DIRECTION MADE)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellant or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
For the Appellant: Mr T Hodson, Counsel, instructed by Elder Rahimi Solicitors (London)
For the Respondent: Ms R Bassi, Senior Home Office Presenting Officer
DECISION AND REASONS
This is an appeal by the Appellant against the decision of First-tier Tribunal Judge R Hussain ("the judge"), promulgated on 2 September 2019, by which he dismissed the Appellant's appeal against the Respondent's decision of 8 April 2018, refusing his protection and human rights claims.
In essence, the Appellant's case was that by virtue of his father's claimed activities in Afghanistan, he himself would be at risk of harm from the Taliban in his home area within the Laghman Province either by way of forced recruitment or revenge. It was also said that internal relocation to Kabul would be unduly harsh. The Appellant's appeal had already been decided by the First-tier Tribunal in 2018. That initial decision was set aside following a successful appeal to the Upper Tribunal and the matter remitted for a complete rehearing.
When that remitted hearing came before the judge, he found that material aspects of the Appellant's claim was untruthful for reasons set out in paragraph 12 of his decision. In summary, these were based on what were essentially plausibility issues relating to the Appellant's knowledge of his father's activities and actions and inaction on the particular of the family and the Taliban. The judge went on to say that even if he had accepted the Appellant's claim, internal relocation to Kabul would have been a viable option. The judge concluded that the humanitarian protection claim was not made out, nor could the Appellant have succeeded on Article 8 grounds.
There are three grounds of appeal. The first is that the judge erred in the credibility findings by failing to have regard to material aspects of the Appellant's own evidence, oral and written, which responded to adverse issues taken against him in the reasons for refusal letter. Ground 2 complains that the judge failed to make specific findings in respect of risk in the home area both in respect of the Refugee Convention claim and Article 15(c) of the Qualification Directive. Ground 3 asserts that there was a lack of adequate analysis in respect of the conclusion on internal relocation. Permission to appeal was granted on 11 October 2019 by First-tier Tribunal Judge Grant-Hutchison.
Prior to the hearing the Respondent issued a Rule 24 response in which it was conceded that the judge had erred in respect of his conclusion on the internal relocation issue. However, grounds 1 and 2 were resisted.
At the hearing before me Mr Hodson relied on the grounds. In addressing the first ground he provided myself and Ms Bassi with a copy of his note of the oral evidence that had been given at the hearing before the judge. It is, I am bound to say, unsatisfactory that this was not provided earlier, either with the application for permission to appeal or at any time before the hearing. Ms Bassi, having been given time to consider the document, was content to proceed. I made reference to the judge's Record of Proceedings on file. It transpired that there was no Home Office Presenting Officer's record of the oral evidence.
Mr Hodson submitted that the judge had failed to have regard to particular aspects of the oral evidence relating to the Appellant's knowledge of what his father had done and the position held in respect of his membership of the Afghan police force. He also contended that the judge had failed to deal with relevant aspects of the written evidence contained within three witness statements. In respect of the second ground, Mr Hodson submitted that there had been no specific finding on the risk in the home area whether in respect of fear of the Taliban specifically regarding the nature of the claim put forward by the Appellant or in respect of Article 15(c) of the Qualification Directive.
Ms Bassi directed my attention to paragraph 11 of the judge's decision, in which he had stated that he had taken all the evidence into account before reaching his findings. Ms Bassi also submitted that it would be open to the judge to essentially adopt points taken against the Appellant in the reasons for refusal letter. In relation to the Article 15(c) point, Ms Bassi submitted that this matter had not been properly raised before the judge and he could not be criticised for failing to deal with it in any detail.
I conclude that the judge has materially erred in law. In respect of ground 1, it is right that the judge has stated in terms at paragraph 11 that he had considered all the evidence before him. There is nothing objectionable in that approach insofar as it goes. However, in relation to the matters held against the Appellant in paragraph 12, many of which are taken directly from the reasons for refusal letter, in my view, it was incumbent upon the judge to deal with specific aspects of the Appellant's evidence that related to the matters of concern. These included certain answers given in cross-examination and particular passages from the Appellant's three witness statements, in particular those dated 10 May 2018 and 12 June 2019. The written evidence had been adopted and relevant passages related directly to matters which were clearly of concern to the judge, including knowledge of the father's position and activities, the father's claimed death, and other events relating to interactions with the Taliban over the course of time. It may of course have been that the judge was unimpressed with the evidential responses. Nonetheless, they are not specifically addressed, nor are reasons provided if they were found to be insufficient. This error also relates to the point taken in paragraph 13 of the judge's decision in respect of the judge's expectation that further avenues could have been pursued in respect of the family tracing issue with reference to the British Red Cross letter dated 13 February 2019.
The error here is a failure to have specifically addressed material evidence and/or a failure to have provided adequate reasons for rejecting such evidence, if rejected it was.
In respect of ground 2, it is right that the judge makes no express finding on the risk to the Appellant in the home area arising from the Refugee Convention claim. It would seem to be implicit in what the judge says at paragraph 14 in respect of internal relocation that such a risk had been found to exist; otherwise the issue of internal relocation would never arise. Any error may not, therefore, be material.
Mr Hodson also relies on Article 15(c) of the Qualification Directive and the judge's failure to have addressed it in any detail. In my view, this matter was not properly raised before the judge. There is no reference to it in the skeleton argument. The grounds of appeal to the First-tier Tribunal are extremely brief and do not mention this particular provision. There is nothing in the Record of Proceedings or any other indication that Article 15(c) was either raised or accompanied by any specific submissions. The judge cannot properly be criticised for failing to deal with matters that had not properly been canvassed before him. There is no error here.
Finally, in relation to ground 3, the Respondent has made what I regard to be a perfectly proper concession in respect of the inadequacy of analysis on the internal relocation issue. Paragraph 14 of the judge's decision is simply too brief, and it is impossible to tell what has been taken into account, with the risk that relevant matters had been left out of the consideration.
In light of the above, I set aside the judge's decision.
In terms of disposal, I bear in mind that this matter has already been remitted on a previous occasion. In the normal course of events this appeal would be retained in the Upper Tribunal for a remaking decision in due course. Having regard to paragraph 7.2 of the Practice Statement and the particular circumstances of this case, it is appropriate to remit the appeal once again on the ground that fact-finding is required.
There shall be no preserved findings.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision of the First-tier Tribunal.
I remit the case to the First-tier Tribunal.
I make an anonymity direction
Directions to the First-tier Tribunal
1) This appeal is remitted with no preserved findings;
2) The remitted hearing shall not be conducted by First-tier Tribunal Judge R Hussain;
3) The remitted hearing shall not be heard before the Upper Tribunal has published the new country guidance decision in AS (AA/03491/2015), which is being heard on 19-21 November 2019.
Signed Date: 19 November 2019
Upper Tribunal Judge Norton-Taylor