Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06472/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 4 April 2017
On 20 April 2017

Before

UPPER TRIBUNAL JUDGE MCGEACHY

Between

bU
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G S Peterson, of Counsel instructed by CK Solicitors
For the Respondent: Mr S Kotas, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant appeals against a decision of Judge of the First-tier Tribunal Page who in a determination promulgated on 11 January 2017 allowed his appeal against a decision of the Secretary of State to refuse asylum on Articles 2 and 3 of the ECHR grounds but dismissed the appeal under the Refugee Convention.
2. The appellant is a citizen of Afghanistan born on 13 June 2002. He was 14 at the date of the hearing. The judge considered his claim and although his reasoning is somewhat convoluted in that he says that he cannot find that the evidence of the appellant is not credible, he does make a finding, which appeared to be based on the difficulties the appellant would have if returned to Kabul, that he would face ill-treatment under Articles 2 and 3 of the ECHR on return. That has not been challenged.
3. When reading this determination and noting that the appellant was aged 14 I considered that the case of LQ (Age: Immutable Characteristic) Afghanistan [2008] UKAIT 00005 was on all fours with this case. Indeed, that was a case where the First-tier Judge had found that the appellant would face Article 3 ill-treatment but had not allowed the appeal on asylum grounds where the Tribunal had found that taking into account that appellant’s age was an immutable characteristic, that the fears that he had of ill-treatment were fears of persecution for a Convention reason. I consider that is on all fours with the case here.
4. Mr Kotas has quite rightly emphasised to me that the grounds of appeal before the judge did not refer to LQ considerations and it does not appear that that made up part of the submissions by Counsel before the First-tier judge. Ms Peterson says that Counsel did raise Refugee Convention reasons but it does not appear that the age of the appellant was raised. Again the LQ issue was not raised in the grounds of appeal before me nor is it mentioned in the grant of permission by First-tier Tribunal Judge Ford. However, I do consider that this is a Robinson obvious point when dealing with a minor from Afghanistan whom it was found could not return. I consider that it should have been dealt with by the judge in the First-tier as a Robinson obvious point and I conclude that it is clearly Robinson obvious before me. For these reasons I find that the judge in his conclusions erred in concluding that the appellant is not entitled to Refugee Convention protection.
5. I therefore set aside his decision in so far as he has dismissed the appeal on refugee Convention grounds. Mr Kotas accepted that it would be appropriate for me to go on to re-make the decision. In so doing I apply the principles in LQ to the facts as found by the judge in the First-tier and I therefore allow this appeal on asylum grounds and therefore the appeal is allowed on Article 2 and 3 ECHR grounds and on asylum grounds.
Notice of Decision
The appeal is allowed on asylum and human rights grounds.
Anonymity direction is made.

Signed Date 18 April 2018

Upper Tribunal Judge McGeachy