Tribunal decisions

The decision

IAC-AH-DN-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06986/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 April 2017
On 27 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

hedayatullah jan ali
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Blundell of Counsel instructed by Malik & Malik Solicitors
For the Respondent: Mr P Nath of Specialist Appeals Team

DECISION AND REASONS
The Appellant
1. On 5 January 2016 the Appellant born in 1989 arrived with entry clearance as a Tier 4 (General) Student Migrant when he claimed international surrogate protection. He feared persecution and ill-treatment on return to Afghanistan because of his previous employment with two NGOs which had resulted in his receipt of threats from the Taliban or other anti-government elements (AGEs).
The Secretary of State’s Decision
2. On 21 June 2016 the Respondent refused his application. She did not find any aspect of the Appellant’s claim to have worked for NGOs and being threatened by the Taliban or AGEs to be credible. She noted the Appellant had gone to Russia and returned to Afghanistan and so could not be considered to have been in genuine fear. She asserted the Appellant had delayed in claiming asylum and relied on Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 but nevertheless did accept that the Appellant had claimed asylum on arrival. Further, since the Appellant on return would no longer be working for an NGO he would not be at risk and in any event the Afghani authorities were able to offer a sufficiency of protection and in the alternative he could relocate within Afghanistan without undue hardship. The Respondent relied on AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) and rejected any claim for humanitarian protection under the old Qualification Directive (2004/83/EC).
3. The Appellant had no family in the United Kingdom, was single and had no dependants so the Respondent refused his claim under Article 8 of the European Convention.
4. On 4 July 2016 the Appellant lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended. The grounds are generic and assert the Appellant would be at risk on return to Afghanistan and had established a private life in the United Kingdom.
First-tier Tribunal Proceedings
5. By a decision promulgated on 17 January 2017 Judge of the First-tier Tribunal Telford dismissed the Appellant’s appeal on all grounds. On 2 February 2017 the Appellant sought permission to appeal on the grounds that the Judge had failed to consider the evidence of employment by one of the NGOs for which the Appellant had claimed to have worked in Afghanistan and had arguably not given due consideration to other documents which the Appellant had submitted because he had relied on his finding that the Respondent had considered all the documents in the round. The second ground was that the Judge had arguably erred by finding the Appellant’s account to be inconsistent both internally and with the background evidence but had not particularised any incidences to support that conclusion. The Judge had also found that the Appellant was “able to talk the hind legs off a donkey ... (and) avoided the key questions ...”: see paragraph 19. Further, it was arguable the Judge had not been justified in drawing an adverse inference about the “night letters” said to have been sent by the Taliban to the Appellant because of an ambiguity, the finding for which appeared to be based entirely on the translation of the document. Finally, it was arguable the Judge’s criticism of the expert report of Dr Giustozzi was unsustainable because it did not adequately distinguish between the expert’s function to assess the plausibility of the Appellant’s account and the assessment of his credibility which was not the expert’s function.
6. On 6 March 2017 Judge of the First-tier Tribunal Parkes granted permission to appeal on the basis that all the grounds were arguable.
7. In a letter of 14 March 2017 served by the Respondent pursuant to Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the Respondent stated she did not oppose the application for permission to appeal and invited the Upper Tribunal to determine the appeal with a fresh oral (continuance hearing) to consider whether the Appellant qualified as a refugee.
The Error of Law Hearing in the Upper Tribunal
8. I found at the hearing that on the basis of the grounds or permission to appeal as well as the absence in the decision of any statement of the relevant standard and burden of proof that the First-tier Tribunal’s decision contained material errors of law such that it should be set aside in its entirety.
9. For the Respondent Mr Nath wanted the matter remitted to the First-tier Tribunal for hearing afresh. Having considered the documents in the file and in particular the Appellant’s two statements, the country expert report of Dr Guistozzi, the evidence of the Appellant’s employment from each of the two NGOs and the Respondent’s Country Policy and Information Note of 1 December 2016 on Afghanistan: Fear of AGEs and the UNHCR Eligibility Guidelines of 18 April 2016 for assessing the International Protection Needs of Asylum-Seekers from Afghanistan and having regard to the over-riding objective set out in Procedure Rule 2 I decided I could proceed to deal with the substantive re-hearing. I gave Mr Nath time to consider the file to prepare for a substantive re-hearing.
The Standard and Burden of Proof
10. The standard and burden of proof in relation to claims under the Refugee Convention, for humanitarian protection under the Qualification Directive and under the European Convention are for all material purposes one and the same; that is the Appellant must show that there are substantial grounds for believing that if returned to his country of origin he will be persecuted for a Refugee Convention reason or if removed from the United Kingdom will be subjected to treatment which for the purposes of humanitarian protection as defined by paragraph 339C of the Immigration Rules will amount to serious harm or will be subjected to treatment which will violate his rights under the European Convention. This is known as the lower standard of proof. The effective date for assessment of the evidence in support of each claim is the date of the hearing. In the case of a free-standing claim that Article 8 of the European Convention is engaged based on circumstances arising in the United Kingdom, the standard of proof is the civil standard; that is on the balance of probabilities. The burden of proof remains on the Appellant.
Documentary Evidence
11. No further evidence subsequent to the First-tier Tribunal hearing was submitted and reference has already been made to the most relevant documents in the Appellant’s bundle. In addition, there was medical evidence that the Appellant’s older brother had been treated at a provincial hospital on 5 January 2016 after being attacked by the Taliban and documentary evidence of the arrangement made between the village elders and the Taliban for the Appellant’s father to prevail upon the Appellant to cease certain activities and for the release of the Appellant’s brother upon payment of a ransom. There is also the interview of the Appellant by an Immigration Officer on 25 April 2016. The Appellant in his statement asserts that this was conducted via Skype and refers to various matters at the end of the interview (page D16 of the Respondent’s bundle). The Appellant’s bundle includes documents of the nature described by the Appellant at the close of the interview.
The Appellant’s Account
12. The Appellant states his family comprises his parents, his older brother and himself. They are farmers working their own land. He received his primary education in Afghanistan. At some point when the Taliban were in power the family moved to Pakistan but about four years later returned after the election of President Karzai. He completed his education in Afghanistan and attended university in Mazar-e-Sharif. He completed his degree in 2010 see Appellant’s bundle (AB) pp.40-43 and joined the German Company for Technical Co-operation (GIZ) in Afghanistan. The documentary evidence confirming this employment is to be found at AB pp.24-32 and 44. He worked teaching English and as a radio operator.
13. In early March 2013 the Appellant received threatening telephone calls stated to be on behalf of the Taliban who viewed his employment as helping foreigners and tantamount to apostasy. They threatened death if he did not cease such work. The Appellant who had experience of risk management because he had worked in his employer’s Risk Management Office decided to leave the GIZ and in April went to spend some time with his uncle who lived in Moscow where he worked in his uncle’s shop. The Appellant found the work very unsatisfying and returned to Afghanistan in June 2013 when he found employment working for another NGO, the Agency for Assistance and Development of Afghanistan (AADA) in his home area of Ghazni. This lasted from the end of June until mid-November 2013: see AB p.33.
14. The Appellant received further threats in November of the same nature as before: see para.10 of his statement at AB p.52. He returned to his uncle in Russia with a student visa to learn Russian. This did not work out and at his request his uncle arranged for him to travel to England: see para.12 of his statement AB p.52.
15. After discussions with his former colleagues at AADA, the Appellant returned to Afghanistan for a short visit in late December 2015 to see his family. While visiting a relative in his home area, the Appellant says that his brother’s home was visited by three people on motorcycles who had previously threatened his father and who told his brother that he, the Appellant, was assisting foreign infidels and was an apostate: see para.16 AB p.53. The Appellant promptly left for Kabul and then came to the United Kingdom when he sought asylum on arrival: see para.19 of the Respondent’s Reasons for Refusal Letter of 21 June 2016. The motorcyclists had kidnapped the Appellant’s brother. The Appellant’s father had reported the matter to the police against which he had been advised by the village elders. Eventually his brother was released upon payment of a ransom and a deal between the village elders and the Taliban: see paras.16 and 18 AB pp.53 and 54 and pp.20-23.
16. The examination-in-chief comprised the Appellant’s adoption of his two statements of 21 April and 15 December 2016. In cross-examination he explained that his employment with AADA was intended to be long term. He had left only because of the threats he had received from the Taliban or other AGE. These had included a “night letter”. He had received only telephone threats while working for GIZ. His home village was effectively under Taliban control and the government and police had little influence. This was reflected in the arrangement the village elders had reached with the Taliban for the release of the Appellant’s brother and their advising the Appellant’s father not to involve the police when his older brother had been kidnapped: see hearing replies 12-14.
17. It was put to the Appellant he could relocate to Kabul. The Appellant explained he had no contacts or family in Kabul to help him establish himself. The threats made against him had been specific. Additionally, on return he would be perceived as being westernised and having worked for foreigners. There was no re-examination.
Submissions for the Respondent
18. Mr Nath relied on the reasons for refusal. He had cross-examined the Appellant about his work with AADA to establish whether it had been genuine and the level of threat to the Appellant.
19. The Respondent at paras.33ff of the reasons for refusal had dealt with the risk on return and at para.43 had discounted his claim to have worked for AADA. The Appellant on return would not be considered to have a high-level profile and so there would be no motive for him to be targeted by the Taliban or other AGEs: see para.56ff of the reasons for refusal. Para.63 set out the evidence for there being a sufficiency of protection available to the Appellant, particularly in Kabul to which he could relocate without undue hardship and he referred to the cases cited at paras.71 and 76 of the reasons for refusal. The appeal should be dismissed.
Submissions for the Appellant
20. Mr Blundell referred to the two full statements from the Appellant together with the statement from the Appellant addressing and answering the issues raised by the Respondent in the reasons for refusal. The Appellant’s oral evidence was cogent: his account was credible. He had given a plausible explanation for his departure from Afghanistan to his uncle in Russia and return and had produced documentary evidence to support his claimed employment with GIZ and with AADA.
21. He referred to AB pp.150 and 151 being part of the UNHCR Eligibility Guidelines. The UNHCR noted that AGEs target civilian employees of international humanitarian organisations and development agencies and NGOs, truck drivers and those involved in development projects. The Guidelines refer to other civilians who are perceived as supporting the government or the international community as also being at risk. The Appellant would also be perceived as westernised and those who have adopted values and/or appearances associated with western countries are imputed to support the government and the international community and so are said to be targeted by AGEs.
22. He referred to the Respondent’s Country Policy and Information Note. At AB p.86 para.2.3.1 the Note states that civilians associated with, or perceived to be supporting the government, civil society and the international community in Afghanistan, have been subjected to intimidation, threats, abductions and targeted attacks by AGEs. The Note also refers to the need to make that not every person with links to the international community and forces would automatically be at risk and the assessment of risk will depend on the individual circumstances of any particular case. Para.2.4 at p.87 noted that in areas controlled by AGEs the state will be unable to provide effective protection and that in Kabul the state may be willing but will usually be unable to offer effective protection. Paras.4.2 and 8.1 at pp.88 and 89 explore the ability of the Taliban to pursue any particular individual. Para.8.6 of the Note at AB pp.94-95 cited the 2012 report by the European Asylum Support Office that “Afghan employees of international organisations are at risk of being targeted by insurgents ... the individual circumstances ... determine whether the Taliban would further target or threaten a person after he quits his job or stopped activities”. It also noted that if such a person ceased his activity and re-located he could normally escape intimidation or targeting by AGEs unless there were specific individual circumstances which would preclude this possibility.
23. Mr Blundell then referred extensively to Dr Guistozzi’s expert report. In short, on return the Appellant would be treated by the Taliban as a westerner and an unrepentant collaborator.
24. Para.22 at AB p.77 notes the police often collaborate with the Taliban or passively tolerate their activities. Para.26 at AB p.79 notes individuals can relatively easily be tracked down around Afghanistan unless able to hide indefinitely without seeking employment. Prospective landlords and employers asked for references and information about a person’s origin and family background and the process of checking itself is likely to give away the individual’s presence.
25. Para.28 at AB p.83 notes there might be a greater degree of safety if the Appellant were to settle in a Hazara neighbourhood in western Kabul but that if settled there he Appellant would be unlikely to find local employment and would have to travel outside the area for work.
26. Para.29 AB p.84 notes that an individual who fails to comply with two Taliban warnings will be “sentenced”, probably for the crime of collaborating with the enemy.
27. At para.30 AB p.84 the position was the Appellant had not heeded the initial warnings and should be presumed to have been “sentenced” as an unrepentant collaborator. The Taliban have a record of targeting low profile collaborators.
28. An additional risk factor is the Appellant’s religious and ethnic identity. Hazaras face continuing societal discrimination and physical abuse and that more recently there has reportedly been a significant increase in harassment, intimidation, kidnappings and killings at the hands of the Taliban and other AGEs: see para.13 of the UNHCR Eligibility Guidelines at AB p.157.
29. For all these reasons the appeal should be allowed.
Findings and Consideration
30. Although briefly, I heard the Appellant give oral testimony. I found his replies to questions put to be measured and detailed and consistent with information given in his statements or at interview. He is an articulate young man who appeared reasonably at ease in the western environment of a Tribunal hearing room. His account of employment by two NGOs, GIZ and AADA, is adequately documented and in particular, his longer employment with GIZ. His account is consistent with the background evidence and would appear to be internally consistent to a considerable degree with each telling of it. I have concluded the Appellant’s account is plausible and he is a credible witness. I accept the account of the Taliban’s kidnapping for ransom of the Appellant’s older brother which is supported by documentary evidence from the village elders and from the local police in the AB. I have no doubt that if the Appellant were to return to his home area he would soon be identified and that there is a real risk of substantial harm to him, and indeed possibly to family members, from the Taliban or other AGEs on his account of his past connection with GIZ and AADA. Further, there is the matter of the agreement brokered between the village elders and the Telly band to secure the release of his older brother. I find it likely that he will be seen as Westernised and a Westerniser on account of his experiences in the United Kingdom and indeed in Russia. He will be at risk because of perceived political opinion and for these reasons I find that the appeal succeeds on asylum grounds and for the same reasons on human rights grounds.
Anonymity
31. Although the First-tier Tribunal made an anonymity direction, there was no request for the direction to be continued or an anonymity order to be made and given my decision and the need for transparency and proceedings, I find no reason justifying the continuance of any anonymity direction or order.

NOTICE OF DECISION
The appeal is allowed on asylum grounds.
The appeal cannot be allowed on humanitarian protection grounds.
The appeal is allowed on human rights grounds (Article 3).
No anonymity direction is made.

Signed/Official Crest Date 25. iv. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal

TO THE RESPONDENT: FEE AWARD
No fee has been paid and consequently there can be no fee award

Signed/Official Crest Date 25. iv. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal