Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06412/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 March 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ESHUN

Between

S A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr B Hawkin, Counsel
For the Respondent: Mr T Melvin, HOPO

DECISION ON ERROR OF LAW

1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge James dismissing his appeal against the decision of the respondent to refuse him asylum in the UK.

2. The appellant is a citizen of Afghanistan born on 1 February 1999. He arrived in the UK and claimed asylum on 8 July 2015. His claim was refused on 26 February 2016. Due to his age, the appellant was granted discretionary leave valid until 1 August 2016.

3. The appellant claimed that his brother had been an army officer who had been threatened by the Taliban and subsequently killed by them when he refused to join them. Whilst not making a clear finding as to whether he accepted this evidence, I find from paragraphs 39 and 40 that the judge must have accepted that the appellant’s brother was killed by the Taliban because he was an officer in the army. It was the appellant’s evidence that the Taliban first warned his brother against working for the army and when he paid no attention they killed him.

4. The appellant claimed that the Taliban had visited his home seeking to recruit him but that they left after speaking to his father. The judge accepted that the Taliban came to the appellant’s house but did not accept that this was because the appellant was a specific target. The judge held that had the appellant been such a target, he would not have expected his father to have persuaded the Taliban to have left the appellant’s home without him.

5. The judge accepted that a letter was posted in the mosque requiring children to be taken out of school but did not accept that this made the appellant any greater target for the Taliban than all the other young men in the area.

6. The judge considered the objective evidence that had been put before him and which he relied on to make his findings and dismiss the appellant’s appeal.

7. I shall at this stage recite the paragraphs in the decision which form the basis of the grounds of appeal. At [39] the judge said as follows.

“It is clear from the above guidance that there are reports of young persons being recruited on the basis that if they resist either they or their family members would be at risk of being killed or punished. I also note that coercion is used in exceptional cases. I have noted that the appellant is in the age group that are targeted by the Taliban. I have noted that door to door recruitment has taken place and that there has been an increased recruitment campaign due to increased Taliban operations.”

8. At [41] the judge held,

“Adopting the lower standard of proof and taking into account s.8(4) I accept that the Taliban came to the appellant’s house although I do not accept that this was because the appellant was a specific target. Had he been such a target I would not have expected his father to have persuaded the Taliban to have left the appellant’s home without him.”

9. At [44] the judge held

“The respondent has relied heavily on the conclusions that coercion is rarely used for recruitment purposes. I have noted that the use of coercion appears to be of a much diminishing style of recruitment. I accept that forced recruitment is unlikely in relation to the appellant. This is not contradictory to the conclusion that I accept that attempts were made to recruit him using other methods during a visit to his home. I accept that in the course of time further attempts may be made to recruit him but that these can be resisted without risk of mistreatment, punishment or death. It follows that I do not find that the appellant faces a real risk of persecution or other mistreatment on return to his home village in Afghanistan.”

10. The grounds argued that the judge’s findings were contradictory. Alternatively, the judge failed to provide reasons why if he accepts at paragraph 39 that there are reports of people being recruited on the basis that resistance will lead to they or their family members being at risk of being killed or punished in that this appellant may face further attempts to recruit him, why he would not be at risk of forced recruitment. The judge also failed to explain how this appellant will be able to avoid these risks.

11. The grounds submitted that the appellant was under the age of 18. It was specifically argued before the judge that, as a consequence of his age and his lack of contact with his family and lack of knowledge as to where they are, he will be an unattended child on return to Afghanistan and therefore will be at risk of ill-treatment on that basis. The judge did not address this issue at all when considering risk on return to Afghanistan.

12. The grounds further argued that the judge, at [45] failed to give reasons as to why he concluded that the appellant’s circumstances under Article 15(c) of the Qualification Directive would not be engaged and gave no reasons as to why he would not face treatment contrary to Articles 2 and 3 of the ECHR.

13. First-tier Tribunal Judge Froom did not consider that the findings were necessarily contradictory. However, he granted permission to appeal because it was arguable that the FtTJ having dealt with the appellant’s claim, failed to make adequate findings about the risk to the appellant on return as a 17/18 year old. He could not see that the FtTJ made any finding about the appellant’s claim to have lost touch with his family, having dropped his SIM card in the street. It was urged on the FtTJ to apply AA (unattended children) Afghanistan CG [2010] UKUT 00016 (IAC). FtTJ Froom also said it is arguable that the FtTJ failed to give adequate reasons for his decision not to depart from AK (Article 15(c)) Afghanistan CG UKUT 00163 (IAC) given the Taliban are engaged in conflict in the appellant’s home area. The issue of internal flight was not addressed in the decision.

14. I agreed with the reasons given by FtTJ Froom for granting permission. I find that the failures identified by FtTJ Froom amounted to an error of law.

15. I also find the judge’s findings at paragraph 44 rather troubling. The judge accepted that forced recruitment was unlikely in relation to the appellant. This finding was based on the one incident when the appellant’s father resisted the recruitment of the appellant. The judge found that in the course of time further attempts might be made to recruit him but that these could be resisted without risk of mistreatment, punishment or death. The judge, however, failed to explain how the appellant would be able to avoid these risks. He failed to take into account that the appellant’s brother was killed when he disobeyed the Taliban’s order to leave the army. He failed to consider the appellant’s evidence that he had stopped attending school on the orders of the Taliban. I find that the judge failed to consider that the threat of being killed or punished by the Taliban could amount to a form of coercion.

16. Mr Hawkin identified objective evidence that was before the judge that indicated that Puli Khumi, Baghlan, which includes the appellant’s home village, is a contested area. The objective evidence shows that the situation in his home area has deteriorated since 2012.

17. I find that in the light of the objective evidence and the judge’s failure to consider matters relevant to the appellant’s case, that the decision is flawed and cannot stand.

18. The decision is set aside in order to be remade.

19. The appeal is remitted to Birmingham for rehearing for a First-tier Judge other than FtTJ James.

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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.

Signed Date: 20 April 2017

Deputy Upper Tribunal Judge Eshun