Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/07920/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 28th November 2017
(Resumed hearing of 21st August 2017)
On 19th January 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

KG
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Holmes of Counsel, instructed by Morgan Dias Immigration Consultants Ltd
For the Respondent: Mrs R Pettersen, Home Office Presenting Officer

DETERMINATION AND REASONS
1. This is the appellant's appeal against the decision of Judge Kelly made following a hearing at Bradford on 20th April 2017.
2. The appellant is a citizen of Afghanistan. His date of birth is disputed. He claims that he was born on 2nd February 2001. The Immigration Judge concluded that he was 19 years old having been born on 2nd May 1998 in reliance upon what he said was a Merton compliant age assessment undertaken by Sheffield City Council.
3. The underlying facts of this case are not in dispute. The respondent accepted that the appellant's father was a Taliban commander, well-known in his local area. A few months before the appellant left Afghanistan his brother took part in a suicide mission upon the instruction of his father. When his father tried to persuade the appellant to follow his brother's example his mother arranged for him to go to the home of his maternal uncle in the city of Jalalabad. His uncle organised an agent who took him to the UK.
4. The judge found that, contrary to the appellant's assertions, that he had been in touch with his uncle both shortly after his arrival in the UK and again some seven or eight months later.
5. He concluded that the appellant had not established that he would be in danger from the Afghan government as the eldest surviving son of a prominent Taliban leader and that he could safely and reasonably be expected to live with his maternal uncle in Jalalabad or live an independent life in Kabul.
6. The appellant sought permission to appeal on the grounds that the judge had failed to engage with the issues in sufficient detail.
7. He had failed to explain why, if the appellant was at risk from the State in his home area, that risk would not equally apply elsewhere. By stating that he was unaware of any policy of the Afghan government to kill the sons of Taliban activists the judge had not adequately engaged with the issue as to whether there was any actual risk to him. The appellant could not be expected to disguise his identity and inevitably would come into contact with the authorities on return.
8. Second, the judge had failed to engage with the question as to whether it would be reasonable to expect the appellant to live in Kabul or in Jalalabad. There was no assessment of relevant factors such as the appellant's employment prospects and what support he could be expected to receive from relatives, and in particular no evidence as to whether the uncle would be willing or able to offer assistance.
9. Mrs Pettersen, on behalf of the respondent, said that she was not seeking to defend the determination.
10. The decision is set aside for the reasons set out in the grounds and conceded by the respondent.
11. Mr Holmes submitted that, whilst the issue of the appellant's age was not raised in the grounds, it was a Robinson obvious point that the age assessment before the judge was not in fact Merton compliant. The question of whether the appellant was in fact still a child was plainly relevant to the issue of relocation. He asked for an opportunity to provide further evidence.
12. This matter was adjourned to be relisted before me on 28th November 2017. The appellant was directed to adduce whatever evidence he seeks to rely on, including evidence in relation to his age, and serve it on the Tribunal and the respondent seven days before the hearing. A further witness statement should deal with the position of his uncle in Jalalabad.

The resumed hearing
13. At the resumed hearing the appellant produced a further bundle of documents including witness statements from himself and his foster mother together with further background evidence. Mr Holmes told me that he had not been able to obtain another age assessment because it had not been possible to obtain funding.
14. The first issue in this appeal to be decided is whether the appellant was born on 2nd February 2001 as he claims or whether he was in fact born on 2nd February 1998 as alleged by the respondent. The second issue is whether he could reasonably relocate to Kabul or to Jalalabad, it having been accepted that he would be at risk in his home area.

The Evidence
15. The appellant said in his witness statement that he had no way of contacting his uncle who lived in Nangrahar which was two to three hours away from his village. The Taliban were after him and he did not want his number to be tracked by them. In his oral evidence he said that he had spoken to his uncle only once when he came to the UK about a year and a half ago when he needed documents in relation to his age. The documents were sent to a friend. Once his uncle had provided him with the information that he needed he blocked his friend from contacting him. He did not know much about his uncle, other than that he had always been in the army, because he did not see him a great deal when he was growing up. He could not live with him in Afghanistan, and his uncle was frightened for his own safety.
16. The appellant was asked about his father. He said that he came home about once a month as he had a high position in the Taliban with about 50 to 60 people working for him. It would be very easy for his father to find out if he had returned to Jalalabad because of the strong networks.
17. The appellant was asked whether he was receiving any medical treatment. He said that he had a problem with hair loss for which he was taking medication. This was because of a vitamin D deficiency and stress.
18. His foster mother also gave evidence. KG has lived with her since 2015. She described him as a quiet, respectful, and anxious young man. In her witness statement she said that he had started to adapt to living in the UK well in general terms, but found it difficult to adapt to new circumstances. There was a period of time when she could not get him to go to college everyday. He continues to sleep with the lights on in his room. He has few friends. She did not think that he would adapt to living in Afghanistan on his own. He is unable to cook for himself very much and would be vulnerable.

Submissions
19. Mrs Pettersen relied on the age assessment undertaken by Sheffield Children's and Young People's Services which was headed "Merton Age Assessment" although she accepted that it was not a Merton Complaint document. She asked me to conclude that he was 19 years old.
20. There was no clear reason why he could not live in Jalalabad in his uncle. There was no suggestion that he had been personally involved with the Taliban and therefore would not be of any interest to the government. It was not credible that his father would be aware of his return to either Kabul or Jalalabad, and whilst she accepted that he might have a subjective fear of him finding out, it was not well-founded. He would be returning to Afghanistan with reintegration payments and there was no medical evidence, aside from a vitamin D deficiency, to suggest that it would be unduly harsh to expect him to do so.
21. Mr Holmes asked me to place little weight on the document relied upon by the respondent from Sheffield City Council which was in summary form and which was entirely unreasoned. It was incumbent on the respondent to adduce evidence which established, on balance, that he was the age which they said he was. On any rational view the document relied upon could not satisfy a tribunal that the appellant was two years older than the age which he had put forward. The appellant himself had always maintained that his date of birth was 2nd February 2001. The evidence from the foster carer was that he still slept with the light on which was indicative of his being a child.
22. The appellant fears both the Taliban and the government on return. His account of his brother having been coerced by his father to become a suicide bomber has been accepted. It was also accepted that he left Afghanistan because his father wanted him to follow in his brother's footsteps. He would therefore be at risk from the government because of his association with the Taliban and he would be perceived as a supporter of the government because of his refusal to become involved in his father's activities. It was reasonably likely that his father would come to know of his return.
23. The background evidence established that there was now the highest level of violence in Afghanistan since recording began, particularly in Kabul. Whilst he was not arguing that the appellant would be at risk under Article 15(c) throughout the country, the humanitarian situation was dire and represented real barriers to relocation for the appellant.
Findings and Conclusions
The appellant's age
24. In the reasons for refusal letter the respondent considered the appellant to be credible and his account to be in the main internally and externally consistent. It was accepted that he was an Afghan national who faced forced recruitment by the Taliban. No credibility issues were raised, aside from the question of the appellant's birth date, and the claim was refused on the sole basis that the appellant could reasonably relocate to another part of Afghanistan, namely Kabul.
25. In rejecting the appellant's claim to have been born in 2002 the respondent relies upon a document headed "Merton Age Assessment Information Sharing Pro-forma". The document names the social workers who undertook the assessment and the dates on which it took place. It was noted that the appellant's fingerprints matched up on the Eurodec database showing an asylum application in Belgium on 21st January 2015, with a different name and different date of birth and that further information stated that the Belgium authorities were not satisfied concerning the age given. However he absconded before an age assessment could be conducted.
26. The document then concludes:-
"Based on the information from this assessment and subsequent statutory visits to K it is the opinion of both Social Workers completing this assessment that he is more of an age of 17 years rather than 14. This is based on K's social presentation, his interaction and his demeanour throughout the interview."
27. I am not able, from this document, to assess what the reasoning was behind the social workers' conclusions that the appellant was three years older than he said he was, namely 17 years old rather than 14. There is only reference to his social presentation, interaction and demeanour. Given that he is a person whose story has been found to be both internally and externally consistent I conclude that this document is not a sufficient basis upon which to conclude that the appellant was lying about his age and therefore accept that he was born in 2001 and not 1998 as found by the respondent.

Risk on Return
28. It is the respondent's claim that the appellant could return to Jalalabad and live with his uncle. Although no credibility issues were raised initially, it is now argued that the appellant has not been truthful in relation to his lack of contact with his uncle.
29. In her witness statement the foster mother said that they did not even know whether the uncle was alive or not. No issues have ever been taken with her credibility. I accept that they are not in touch. However, even if it were possible for the appellant to regain contact with his uncle I would find that he could not safely return to live with him there, because it is most unlikely that his father would not come to hear of his return, given his position within the Taliban, which has been accepted by the respondent.
30. The question therefore remains whether he could reasonably return to live in Kabul or in another area of Jalalabad.
31. Mr Holmes submitted that the appellant would be at risk of retribution from the government because he would be seen, through his relationship with his father, as supporting anti-government elements. He also submitted that he would be at risk from the Taliban because he had refused to carry out the suicide bombing.
32. It seems to me to be very unlikely that the authorities would have any interest in the appellant since he had fled the country because of his refusal to act against them. The greater danger is certainly that his father would come to know of his return, if he went to Jalalabad, through his uncle.
33. The appellant relies on research conducted by Refugee Support Network in a document dated April 2016 entitled "After Return" which documents the experiences of young people forcibly removed to Afghanistan. In particular, the returnees prioritise personal security. The role of social networks in helping young returnees to adapt to life back in Afghanistan is critical and those who have been able to reintegrate with their families had been able to access secure and reliable source of accommodation. Those who had not depended on fragile social connections, such as other returnees they met on the plane. The young returnees monitored for the purposes of the report did not use the temporary accommodation centre available to them for the initial two weeks.
34. So far as Kabul is concerned, although the current Country Guidance makes it clear that Kabul in general terms is not unreasonable per se as a place of relocation, the appellant is a child and is therefore particularly vulnerable. Moreover he suffers from hair loss, caused in part by vitamin D deficiency but also stress.
35. Furthermore, there has been a significant deterioration in the humanitarian situation in Kabul since 2012 when the Country Guidance case was decided. The Amnesty International Report for 2016 to 2017 states that the number of people internally displaced is now more than double the number in 2013. The most recent statistics available from the International Labour Organisation show that only 45.7% of the total working age population are employed in Afghanistan and 73.8% of the urban population live in slum households. Out of a total population of approximately 27 million people, 8.1 million people were reported to be in need of humanitarian assistance. The appellant would be joining the 1.4 million internally displaced people who faced significant challenges in accepting healthcare without adequate access to housing and education or employment opportunities.
36. In these circumstances, Kabul would not be a reasonable place of relocation for this particular young individual. He could not live a relatively normal life judged by the standards of Afghanistan because he would be unable to access the support networks he needs due to his fear of his father discovering his return.
Notice of Decision

The original judge erred in law. His decision has been set aside. The appellant's appeal is allowed on asylum grounds.

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 15 January 2018

Deputy Upper Tribunal Judge Taylor