Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06325/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgation
on 24 March 2017
on 28 March 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

A J
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Sirel, of Brown & Co, Solicitors
For the Respondent: Mr A Govan, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a national of Afghanistan, born in March 2001. He has been granted discretionary leave to remain in the UK until August 2018 (in view of his age, and lack of arrangements for his reception). He appealed to the FtT on grounds of entitlement to international protection. FtT Judge Agnew found that his evidence fell short of proving his case. He sought permission to appeal to the UT on 4 grounds.
2. Ground (i), “best interests of the child”, is that based on s. 55 of the 2009 Act, the respondent’s policies, and “the benefit of the doubt”, the judge erred in her legal approach to the credibility issues.
3. Ground (ii), “s.8 2004 Act”, is that the judge ought not to have taken the appellant’s presence in “safe countries” as damaging to credibility “without a balanced assessment of the case as a whole”.
4. Ground (iii), “weighting of evidence”, says that two clinical letters corroborated the appellant’s account, but the judge formed a view on credibility in advance, and gave “speculative alternative reasons for documented trauma”.
5. Ground (iv), “humanitarian protection”, is that it was perverse and irrational to rely on inherent dangers in the appellant’s home area in respect of credibility, but not to consider the same dangers when assessing eligibility for humanitarian protection.
6. Permission was granted on the view that the judge might not have considered “the s.55 matters”.
7. A rule 24 response from the SHD to the grant of permission says that as the appellant has leave until 2018 and article 8 was not pursued at the hearing there was no error in not addressing s.55; and that as the judge comprehensively disbelieved the appellant’s account including the death of his family, and therefore he would have a family to go back to, there was no case under s.55.
8. Mr Sirel in submissions sought to show by the case law, particularly JO and others [2014] UKUT 00517, that the judge failed to apply the established principles requiring her to have regard to the best interests of the child, and overlooked his age (13 at the time of claimed events), lack of education, and mental health issues.
9. Mr Govan argued that the judge made a thorough assessment of credibility, and that the grounds were only disagreement.
10. Mr Sorel in reply said that paragraph 41 of the decision, where the judge turns to reports which she was bound to consider, and which go to the appellant’s best interests, is flawed because it comes after paragraph 40, where she has already in essence found against him.
11. I reserved my decision.
12. Permission was granted only on ground (i), but in essence it is the same as the grounds on which permission was refused: disagreement on the facts.
13. The ground is misleading in that it is based on statute, policy and case law which go to the resolution of issues bearing directly on the best interests of children, not on the assessment of their credibility. There has been no reference to anything which goes to assessing the credibility of a child’s evidence, rather than to assessing what might be in their best interests.
14. A difference of approach is sometimes required in taking the evidence of a child witness, but that is not to be derived from “s.55” materials; rather, it is to be found in sources such as the Practice Direction, Child, Vulnerable and Sensitive Witnesses by the Senior President. There is no suggestion in this case that the evidence of the appellant was not appropriately taken in light of that guidance.
15. Judges are accustomed to making allowances for witnesses, including child witnesses. The aspects on which Mr Sorel founded were all patently before the judge. There is nothing to suggest that she left them out of account in reaching her decision.
16. The determination of the First-tier Tribunal shall stand.
17. An anonymity direction was made in the FtT. The matter was not addressed in the UT, so that continues to apply, and this determination has been anonymised.

27 March 2017
Upper Tribunal Judge Macleman