Tribunal decisions

The decision

IAC-AH-DN/sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09437/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017
On 03 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHAERF

Between

MUZ
(anonymity direction made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Kirk of Counsel instructed by Wilson Solicitors LLP
For the Respondent: Mr S Stanton of the Specialist Appeals Team

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.

ERROR OF LAW, DECISION AND REASONS
The Appellant
1. The Appellant is an Afghan national whose date of birth is given as 1 January 2000. On 17 November 2015 he arrived and on 25 March 2016 claimed international surrogate protection because he feared return to Afghanistan on account of having been discovered being engaged in sexual activity with a woman married to another man.
The Home Office Decision
2. On 16 August 2016 the Respondent refused the Appellant's claim for international surrogate protection and granted him limited leave under paragraph 352ZC of the Immigration Rules as an Unaccompanied Asylum Seeking Child because there were not adequate reception arrangements for him in Afghanistan.
The First-tier Tribunal Proceedings
3. On 2 September 2016 the Appellant lodged notice of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 as amended. The grounds are that the Appellant is a member of a Particular Social Group by reason of imputed political opinion because of his un-Islamic conduct and because on return he is at risk as a male child without contact with his family. The grounds also included claims under Articles 2, 3 and 8 of the European Convention.
4. By a decision promulgated on 14 November 2016 Judge of the First-tier Tribunal Lingam dismissed the appeal on all grounds. She found his account of the circumstances which gave rise to his departure from Afghanistan not to be credible.
5. On 12 December 2016 Judge of the First-tier Tribunal Parkes granted the Appellant permission to appeal limited to the first ground of appeal which asserted that the Judge had erred in law because she had:-
failed to consider and make findings on the Appellant's claims to be at risk ... because he would be perceived by fighting forces in Baghlan to be a young male of fighting age; he would be perceived as having been westernised; and he would be at risk from indiscriminate violence.
The Upper Tribunal hearing
6. The Appellant attended the hearing accompanied by his responsible adult Ms Maria Manuela. His solicitors also made available an interpreter for him. I explained the purpose and procedure to be followed in an error of law hearing and the Appellant confirmed his present address. Mr Kirk for the Appellant accepted the permission to appeal was limited in the manner already mentioned. There was some discussion whether there had been a renewed application to the Upper Tribunal by the Appellant for permission to appeal the other grounds. There was no evidence of that in the file and I noted that if the limited ground for appeal granted by Judge Parkes was successful then it would be open to consider other grounds for appeal. Mr Kirk reserved his position and both representatives agreed the error of law hearing should proceed on the basis of the permission to appeal granted by Judge Parkes.
Submissions for the Appellant
7. Mr Kirk submitted the Judge had failed to consider whether the Appellant on return would be at risk for any of the general reasons specified in the first ground for appeal and this amounted to a material error of law.
Submissions for the Respondent
8. Mr Stanton referred to paragraph 56 of the Judge's decision which made reference to a claim under Article 15(c) of the Qualification Directive 2004/83/EC and noted that the Judge had not referred to the still prevailing country guidance in AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC) but nevertheless after noting the general concerns over security in Kabul had rejected his claim.
9. The Appellant had been in the United Kingdom for only fourteen months and any claim to be westernised had to be considered within that timeframe which was unlikely to be sufficient to establish or support a claim of fear on return for that reason. The guidance in AK was that the violence was not sufficiently indiscriminate, absent any other specific risk to justify the grant of humanitarian protection. There was no merit in the grounds for appeal and the First-tier Tribunal's decision should be upheld.
Response for the Appellant
10. Mr Kirk responded, pointing out that the Respondent had accepted the Appellant came from Baghlan. The Judge had not considered the Appellant's claim to be at risk of forced recruitment although it had been addressed by Mr Foxley in his expert country report which was before the Judge. Similarly, Mr Foxley had addressed the issue of westernisation and had identified the risk to the Appellant in his home area and en route to his home area. Neither of these issues had been expressly addressed by the Judge. The Respondent had in the reasons letter of 16 August 2016 accepted that the reception arrangements in Kabul for the Appellant as a minor were inadequate.
Consideration and Conclusion
11. At paragraph 48 of her decision the Judge found that for the reasons she had previously given, all of which related to the Appellant's claim to have been found engaging in inappropriate sexual activity with a married woman which was not of his wish, he would not be in need of international surrogate protection. However, at that point she had not considered the claimed fear based on general and objective conditions identified in the first ground for appeal and addressed by in the expert country report. The Judge may have found the Appellant's account why he left Afghanistan not to be credible but nevertheless she still had to consider his position on return. The assessment of the risk to the Appellant on return failed to take account of or even refer to the expert report of Mr Foxley or the country guidance in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC).
12. These amount to material errors of law such that the decision of the First-tier Tribunal must be set aside in its entirety. The appeal will need to be heard afresh and since none of its findings can stand it is remitted to the First-tier Tribunal for a hearing afresh in accordance with Section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2009 and paragraph 7.2 of the Senior President's Practice Statement of 10 February 2010 as amended.

NOTICE OF DECISION

The decision of the First-tier Tribunal contained a material error of law such that it cannot stand. It is set aside and the appeal is remitted for hearing afresh in the First-tier Tribunal.

Anonymity direction continued.

Signed/Official Crest Date 03. ii. 2017

Designated Judge Shaerf
A Deputy Judge of the Upper Tribunal