Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06620/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 April 2017
On 18 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MS
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E Sanders instructed by JD Spicer Zeb
For the Respondent: Mr S Kotas Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Turquet (‘the Judge’) promulgated on 13 January 2017 in which the Judge dismissed the appellant’s appeal on asylum, humanitarian protection, and human rights grounds.
2. Permission to appeal was granted by First-tier Tribunal Judge Kelly on 8 February 2017. The operative part of the grant is in the following terms:

“it is arguable, for the reasons given in the first ground, that the Tribunal failed to assess whether there was a situation of internal armed conflict in the appellant’s home area at the date of the hearing (rather than when the appellant left Afghanistan) and that this was a material error of law. It is also arguable, for the reasons given in the second ground, that the tribunal failed to have regard to relevant evidence when reaching its conclusion that internal relocation within Afghanistan was neither unreasonable nor unduly harsh and that this too was a material error of law. Both grounds appear to arise from the same paragraph (paragraph 60) of the Tribunal’s decision. Permission to appeal is accordingly granted.

Error of law

3. The decision under challenge is extremely detailed and it has not been made out that the Judge failed to consider the evidence put before her with the required degree of anxious scrutiny. The grant of permission refers to two specific points relating to the Judge’s findings concerning eligibility for a grant of humanitarian protection and the issue of internal flight. Such matters only arise if an individual has not been successful in relation to an asylum claim, as a grant of humanitarian protection cannot be made to a refugee.
4. The Judge gives ample and adequate reasons for concluding in the decision that the appellant lacks credibility. The Judge refers to inconsistencies in the evidence provided by the appellant sufficient to support the findings made.
5. The core of the appellant’s case set out by the Judge in [6] of the decision in the following terms:

“the appellant’s case is set out in his Interview Records, Grounds of Appeal and oral evidence. In his Screening Interview he said that he came to the UK to claim asylum. He did not claim asylum in Italy or France as he was prevented by the agent, who told him to take him London (sic) and he needed to claim asylum there. The decision to claim asylum in the UK was made by his brother in law in Afghanistan. He could not return to Afghanistan because he believed that he would be killed by the Taliban because he helped the American forces with intelligence. He was beaten by the Taliban in July 2012, he had gone to see the doctor afterwards and was bandaged and given painkillers. He had helped the Americans with intelligence. He gave his intelligence to another Afghan national, who gave his information to the American forces. This was from September 2010 to August 2012. He was paid on a monthly basis. He had been recruited through his brother, who was a member of the national army. He gave his intelligence through another person, who gave the intelligence to the Americans. He decided to give intelligence to the American authorities to get rid of the Taliban.”

6. The Judge found the appellant had not discharged the burden of proof upon him to the lower standard applicable to an asylum appeal to show that his account was credible or that he would be of adverse interest to the Taliban or the Afghan authorities on return. The Judge states at [53] “he has not satisfied me on the lower standard of proof that he would be at risk on return.” At [56] the Judge found:

56. For all the above reasons the Appellant has not satisfied me that he left Afghanistan for reasons of seeking international protection. I conclude that this Appellant has invented his asylum claim in order to bring himself under the protection of the Refugee Convention. I find that this Appellant had fabricated his account of events and incidents in Afghanistan and the United Kingdom. For the above reasons the Appellant has not satisfied me on the lower standard of proof that he was of adverse interest to the Taliban or the authorities before he came to the United Kingdom. He has not satisfied me on the lower standard of proof that he is of adverse interest to them now.

7. The Judge thereafter went on to consider the issue of humanitarian protection by reference to the country guidance case of AK (Article 15 (c)) Afghanistan CG [2012] UKUT 163 (IAC). In relation to this aspect the Judge, at [58-62], records the following text;

58. Having considered the Appellants background, he has not satisfied me that he is in a group that would be at particular risk. He has not satisfied me that he is/was associated with the coalition forces and other international bodies or associated with the government at central and provincial levels. I find that he has not come to the adverse attention of the authorities in the past and has given no satisfactory reason for being of adverse attention on return. In H and B v The United Kingdom ECHR 9 2013 it was found that it was not considered that there is currently in Afghanistan a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned to there; that there is insufficient evidence at the present time to suggest that the Taliban have the motivation or the ability to pursue low level collaborators in Kabul or other areas outside their control; there was little evidence that the Taliban were targeting those who have, as requested by them, already stopped working for an international community or have moved to other areas; that individuals who are supportive of the international community may be able to demonstrate a real and personal risk to them from the Taliban in Kabul depending on the circumstances of their case, the nature of their connections to the international community and their profile. At most this Appellant has been away from his country and in the United Kingdom. He has not satisfied me on the lower level of proof that he would be at risk from the Taliban or the authorities and the Country Guidance caselaw does not indicate that he would be at risk over and above the general population.

59. Ms Sanders submitted that Article 15 (c) of the Qualification Directive was engaged due to risk of indiscriminate violence in Afghanistan and the Appellant’s own particular circumstances. The Appellant’s home province of Nangarghar was currently significantly affected by the escalating conflict. His home district of Sherzad was particularly affected by anti-government elements. She submitted that the Appellant fears harm from the Taliban due to his activities against them in Afghanistan and that those suspected of being spies were very harshly treated by the Taliban. The Appellant had already been targeted by the Taliban, who raided his home, and a past threat would have found a real risk of future harm absent of any good reason to dispute this. It was submitted that the Appellant would be at real risk in his home area on account of the Taliban’s proven hostility towards him. For reasons given above I have not found the Appellant to be a credible witness. He has not demonstrated on the lower standard of proof that he was informing on the Taliban or providing intelligence and I have made findings that the Taliban did not go to the Appellant’s home. The Appellant has not satisfied me, even on the lower standard of proof that because of his personal circumstances he believes that he would be persecuted for either Convention reason of imputed political opinion or religion if returned to Afghanistan. There is no evidence of ill-treatment by the authorities or police in Afghanistan. In Ravichandran (1996) Imm. AR: Staughton LJ stated that persecution must be at least persistent and serious ill-treatment without just cause by the State or from which the State can provide protection but chooses not to do so. I find that there was no ill-treatment by the state. I find that this Appellant came to this country for reasons unconnected with ill-treatment in Afghanistan. I find that he has fabricated events to bolster his asylum claim. Having taken into account all the objective material, the Appellant has not satisfied me even on the lower standard of proof that because of his personal circumstances he believes that he would be persecuted for a Convention reason, if returned to Afghanistan. He may not wish to return but I do not find that he has a well-founded fear of persecution within the Convention should this happen.

60. No Convention reason for seeking asylum has been established therefore the issue of internal flight does not arise. The Appellant has not satisfied me that he would be at risk of persecution in his own area. The law concludes that those returned to Kabul would not be at real risk. In PM and others (Kabul-Hizbi-i-Islami – risk) Afghanistan CG [2008] UKAIT 0013, where the Tribunal found that it was not unduly harsh or unreasonable in the circumstances to expect such a person to relocate to Kabul. In AK it was held that when assessing a claim in the context of Article 15 (c) where the Respondent asserted that Kabul City would be a viable internal relocation alternative it was necessary to take into account when assessing “safety and reasonableness” not only the level of violence in that city but also the difficulties experienced by the city’s poor and the many internally displaced persons living there. These will not make return to Kabul unsafe or unreasonable although it will always be necessary to examine an applicant’s individual circumstances. This Appellant has travelled to the UK, a country where he has no links and does not speak the language. He has not mentioned being involved in a general situation of violence in Afghanistan in the area where he was living. However in the event that he does not want to return to his home area, I do not find that it would be unduly harsh or unreasonable for him to go to Kabul. There will be no breach of Article 15 C. I do not find that there is evidence that would lead me to disregard the Country Guidance caselaw.

61. I find that his removal would not cause the United Kingdom to be in breach of its obligations under the 1951 Geneva Convention and I therefore dismiss the appeal.

Humanitarian protection

62. Having dismissed the Appellant’s asylum claim I must look at his claim for humanitarian protection as required under the Qualification Directive. For the same reasons that I have given above and bearing in mind the burden of proof laid down in Paragraph 339L of the Immigration Rules, I find that the Appellant does not qualify for humanitarian protection. He has not satisfied me to the required standard that there are substantial grounds for believing that there is a real risk that he would suffer serious harm (as defined in paragraph 339C of the Immigration Rules) if he is returned to his home country.

8. The first issue of note is that the Judge found that the appellant had not shown he was entitled to be recognised as a refugee or a person entitled to a grant of humanitarian protection. Therefore, the issue of internal flight would not arise as it was not made out that the appellant could not return to live in his home area. There is no challenge to the dismissal of the claim to be recognised as a refugee and therefore it is important to consider whether the Judge has made any error of law material to the decision to dismiss the appeal on humanitarian protection grounds first.
9. The Judge acknowledges that submissions were made to the effect that the applicant’s home province and home district were affected by anti-government elements. There is specific reference in the decision to relevant parts of the applicants skeleton argument before the First-tier Tribunal and the reliance placed upon the EASO Country of Origin Information Report-Afghanistan Security Situation (9 November 2016).
10. Miss Sanders was asked to clarify the evidence before the Judge supporting the claims made in relation to the applicant’s home area to which she referred to Section 2.5.2 of the said report. This section refers to the applicant’s home province of Nangarhar of which Jalalabad is the provincial capital, and which is divided into 22 districts. In relation to background on the conflict and actors in Nangarhar province the author of the report writes:

AGEs have infiltration and movement hotspots in Nangarhar Province along the border with Pakistan. In 2015, the majority of the security incidents occurred in Hisarak, Achin, Khogyani, Sherzad, Chaparhar, Bati-Kot, Dih-Bala, Pachir-Wa-Agam, Kot, Lal Pur and Nayzan Districts. Other security concerns are caused by a tribal–dominated society with ethnic differences, a conservative rural population, of which some have fundamentalist religious beliefs, as well as different groups of AGEs, but also organised crime, narcotics, cross-border shelling, cross-border influences and poor governance.

Khaama Press reported in March 2006 that Nangarhar was considered to be among the relatively volatile provinces, in which AGEs, including Taliban fighters, as well as IS loyalists, were actively operating in a number of its secluded districts.

In January 2015, IAS officially announced its presence in Afghanistan. It grew from Pakistani militants who had settled since 2010 in the south-eastern districts of the province of Nangarhar and their ranks include other Pakistani militants who arrived during 2014 and former Taliban members. The district of Achin in Nangarhar was chosen as the group’s headquarters for various reasons, including proximity to the Pakistani border, easy access to weapons and logistical supply routes. Its presence was limited to the districts of Achin, Deh Bala and Chaparhar of Nangarhar. IAS attempted to expand its territory beyond Nangarhar Province but failed. It clashed heavily with the Taliban in Nangarhar and, initially, it did not target ANSF. In July 2015, ANSF stepped in and on multiple occasions conducted offensive operations against IAS in the districts of Achin, Kot, Nazian and Bati until June 2016, sometimes with US air support. As a result the districts of Achin and Kot were recaptured. Nonetheless, in other instances the operations have made no gains, since some of the territory was retaken by the group. The Afghan government relies excessively on ‘so – called popular forces, militias raised by local power-brokers and run by the NDS’. These forces were able to stop IS from gaining further territory and in return became primary targets for IAS attacks.

11. The report states that from 1 September 2015 to 31 May 2016 the Province counted 1,901 security incidents. The overview provided shows this figure being composed of 127 incidents of violence targeting individuals, 1049 incidents of armed confrontations and airstrikes, 199 explosions, 460 security enforcement incidents, 55 non-conflict -related incidents, and 11 other incidents. A table representing the number of security incidents per district in Nangarhar Province shows:

Achin
250
Kot
91
Bihsud
158
Pachir Wa Agam
73
Hisarak
142
Lal Pur
50
Jalalabad
135
Rodyat
50
Mohamand Dara
127
Nazyan
44
Surkh Rod
125
Sherzad
35
Bati Kot
114
Kama
27
Khogyani
113
Goshta
25
Shinwar
102
Kuz Kunar
24
Chaparhar
98
Dur baba
18
Dih Bala
92
Dar-i-Nur

12. The Judge was aware of the information that had been provided and, whilst it is not purely a matter of statistical data, what the information shows is that in an area described as being the most volatile province in Afghanistan according to a local news source, the appellants district is 17th out of 22 in terms of the number of security incidents.
13. The Judge refers to the test set out within the Immigration Rules in relation to an entitlement to humanitarian protection. Paragraph 399 C of the Rules states:

“A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he does not qualify as a refugee as defined in regulation to of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country: and
(iv) he is not excluded from a grant of humanitarian protection.

14. Serious harm is defined in the rule as consisting of:

(i) the death penalty or execution;
(ii) unlawful killing:
(iii) torture or inhumane or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilians life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

15. The wording of paragraph 339 C reflects that of Article 15 (C) of the Qualification Directive.
16. The appellant relies upon assertion that there is a serious and individual threat to his life by reason of indiscriminate violence in a situation of international or internal armed conflict. This gives rise to one question which is whether there is in Afghanistan, or a material part of it, such a high level of indiscriminate violence that substantial grounds exist for believing that the appellant, solely by being present there, would face a real risk which threatens his life or person. It is accepted that the serious threat of real harm could be invoked whether the source of the violence was from a single entity or two or more warring factions. The wording of the Qualification Directive clearly refers to the possibility of any fear becoming a reality. It is also accepted that is there is no need for the appellant to be specifically targeted to invoke Article 15 (C) and that it will be enough if the general violence was at a sufficiently high level. As found by the Ground Chamber in Meki and Noor Elgafaji v Radd van State (Netherlands) ECtHR Case C-465/07, Article 15(c) of the Qualification Directive must be interpreted as meaning (i) the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant produce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; (ii) the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place - assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred - reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat. The Court also held that the harm defined in Article 15(C) consisting of a “serious and individual threat to the applicants life or person” covered a more general risk of harm. The reference was to a more general threat to a civilians life or person rather than to specific acts of violence. It was also found that the more the applicant was able to show that he was affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required him to be eligible for subsidiary protection. This latter finding was followed by the fourth chamber in the case of Diakite v Commissaire general aux refugies et aux apatrides (Case C-285/12) CJEU.
17. There are a number of cases specific to the assessment of an entitlement to humanitarian protection and the existence of an internal armed conflict in Afghanistan arising from both the European courts and within the U.K.’s domestic jurisprudence. European cases include:

AM v the Netherlands (application no 29094/09) ECtHR (Third Section) in which it was held that the Claimant had not demonstrated that he would be exposed to a risk of ill treatment contrary to Article 3 of the ECHR in the event of his removal to Afghanistan on account of the general situation in the country.

H and B v United Kingdom (Application no. 70073/10 and 44539/11) ECtHR (Fourth Section) in which it was held that currently in Afghanistan there was not a general situation of violence such that there would be a real risk of ill-treatment simply by virtue of an individual being returned there.

AWQ and DH v the Netherlands (Application No 25077/06) ECtHR, January 2016, in which the applicant claimed to be at risk in Afghanistan amongst other things because of the general security situation. It was held that the mere possibility of ill-treatment on account of an unsettled situation did not in itself give rise to a breach of Article 3.

18. Domestic caselaw includes:

AK (Article 15 (c)) Afghanistan CG [2012] UKUT 00163 (IAC) in which it was found that despite a rise in the number of civilian deaths and casualties and (particularly in the 2010 – 2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15 (c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person. Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not include Kabul), at such a level.

R (on the application of Nasire) v Secretary of State for the home Department [2010] EWHC 3359 (Admin) in which the claimant submitted that the level of indiscriminate violence was so high that any civilian would be at risk in Afghanistan. Laing QC held that the Secretary of State’s opposite view was supported materially by the fact that neither the United Nation’s High Commission for Refugees nor Amnesty International were recommending that failed asylum seekers should not be returned to Afghanistan on the basis of subsisting Article 15 (c) risk: R (on the application of TK) v Secretary of State for the home Department [2009] EWCA Civ 1550 applied.

HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC) in which the Tribunal said that children were not disproportionately affected by the problems and conflicts currently being experienced in Afghanistan. Roadside blasts, airstrikes, crossfire, suicide attacks and other war -related incidents do not impact more upon children than upon adult civilians.

19. It was submitted on the appellant’s behalf in that in addition to the deteriorating country conditions the appellants individual circumstances, based upon his medical needs, created an enhanced risk category based upon the material indicating there had been attacks upon medical centres/hospitals. A similar assertion was made in the case of R(on the application of HN and SA) Afghanistan [2016] EWCA Civ 123 in which it was asserted in a judicial review application that the applicants would be at risk as a result of the worsening security position in Afghanistan and also as vulnerable individuals, HN by reason of mental health problems and SA by reason of being a former unaccompanied child. Both applications were dismissed by the Court.
20. The decision in AK is a country guidance case. It is accepted in that judgment the Tribunal refer to the fact that their findings may have to be reviewed if the situation in Afghanistan changes, but it is also the case that without good reason to depart from a country guidance decision judges are bound to follow the conclusion set out therein and that failure to do so can itself amount to an error of law.
21. I set out above the specific references drawn to this tribunal’s attention by Ms Sanders during her submissions relating to the appellant’s home area. A lot more evidence was provided in relation to the situation in Afghanistan generally, the applicants bundle of country material being in excess of 400 pages. Notwithstanding the volume of material provided the difficulty for the appellant in this case is that it was not made out before the First-tier Tribunal that the level of indiscriminate violence, either in the appellants home region or Afghanistan as a whole, is such as to enable the Tribunal to find that substantial grounds had been shown for believing that the appellant, if returned to Afghanistan, would face a real risk of suffering serious harm solely as a result of his presence there and is unable, or, owing to such a risk, unwilling to avail himself of the protection of that country. The appellant had therefore not discharged the burden of proof upon him to the required standard to show that he was entitled to a grant of humanitarian protection. Therefore, even if the Judge is thought by some to have erred in law by not setting out a detailed analysis of the situation in the decision prior to arriving at her conclusion, such has not been shown to be material as it has not been made out that a decision other than one dismissing the appeal on this head of claim is likely to be made.
22. The fact the appellant’s representatives wanted this tribunal to consider referring this matter for consideration as a country guidance case does not, at this time and on the facts, warrant granting permission where no material error has been established in relation to country conditions.
23. As the Judge found the appellant was not entitled to be recognised as a refugee and not entitled to grant of humanitarian protection it was not necessary to consider the reasonableness of internal relocation as that would have been a matter to be considered in the alternative in the event that the appellant was unable to return to his home area. The Judge’s comments regarding the availability of internal relocation was premised by an observation that if the appellant did not wish to return to his home area he could internally relocate.
24. In relation to the human rights aspects, including issues of mental health, the Judge was entitled on the basis of the evidence before her and current jurisprudence to conclude that the appellant had failed to discharge the burden upon him to show he was entitled to a grant of leave to remain on human rights grounds. The Judge rejected the appellants claim in its entirety including that relating to loss of family support. This is a case in which although there is a diagnosis of PTSD the appellants claim in relation to causation was rejected for the reasons set out at [52] of the determination under challenge. The Judge did not find a breach of Article 3 or 8 based on the medical evidence which is a finding open to the Judge. It has not been established that if returned to Afghanistan the appellant will be abandoned as a vulnerable individual without the help required.
25. The challenge is, in effect, a disagreement with the findings made by the Judge and although permission was granted by Judge Kelly it has not been established that the Judge has made any error of law material to the decision to dismiss the appeal. The findings made are within the range of permissible findings reasonably open to the Judge on the evidence.

Decision

26. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

27. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 12th of April 2017