Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09587/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13 February 2017
On 16 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between

N O
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr I Palmer, Counsel, instructed by Caveat Solicitors
For the Respondent: Mr P Armstrong, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Andonian (the judge), promulgated on 7 November 2016, in which he dismissed the Appellant's appeal on asylum and humanitarian protection grounds, but allowed it under Article 8.
2. The Appellant is an Afghani national born on 1 January 2000. He comes originally from a rural area to the North East of Kabul. He arrived in this country in March 2016. His claim was based upon a fear of the Taliban who, he said, had attempted to recruit him.
3. The Respondent refused the claim but did accept that the core element of his account was true. Nonetheless it was said that the Appellant would not be targeted upon return and could potentially also relocate and live in Kabul.

The judge's decision
4. The judge heard the appeal on 13 October 2016. The Appellant was at that time sixteen years old. The judge found the Appellant to be a credible witness (see paragraphs 9 and 11). With all due respect, it is somewhat difficult to follow the judge's decision-making processes from paragraphs 11 onwards. However, in essence the judge concluded that the Appellant should succeed on Article 8 grounds because there were significant obstacles to his reintegration into Afghani society and therefore paragraph 276ADE(1)(vi) of the Immigration Rules was satisfied.
5. The judge went on to conclude that the Appellant was an unaccompanied minor without family support in Afghanistan in respect of whom it appeared that there was no internal flight option. Notwithstanding this, he stated at paragraph 14: "I cannot allow this appeal on asylum grounds because the risks to him are not sufficient to ground a claim under the 1951 Refugee Convention."
6. The judge goes on to consider the protection claim in light of Article 15(c) of the Qualification Directive but concludes that there is nothing in the Appellant's case to stand him out in respect of a heightened risk of indiscriminate violence in Afghanistan.

The Appellant's grounds of appeal
7. The Appellant's grounds in essence assert that the judge has failed to adequately assess the protection claim in light of the positive credibility findings, and in particular the Appellant's age at all material times.

The Respondent's grounds of appeal
8. The Respondent also sought to challenge the judge's decision. This was on the basis that he had misdirected himself in law as to the applicable test for assessing the Article 8 claim. It is said that the judge misstated the wording of paragraph 276ADE(1)(vi) of the Rules, and in addition failed to have any regard to the mandatory factors under Part 5A of the Nationality, Immigration and Asylum Act 2002.
The grant of permission
9. By a decision dated 19 December 2016 First-tier Tribunal Judge Saffer granted permission to both parties.

The hearing before me
10. At the outset of the hearing both representative informed me that they were agreed that the judge's decision contained material errors of law. I have to say that that was indeed my preliminary view of this case.
11. Having considered the decision and the grounds with care I conclude that there are numerous and fundamental errors of law in the judge's decision and I set it aside. My reasons for this are as follows.
12. First, in respect of the Appellant's challenge, the judge has failed to deal with the protection claim adequately. He has failed to provide reasons as to why the appeal could not be allowed on asylum grounds (see paragraph 14). There is in the very least an apparent inconsistency between what the judge says in paragraphs 11, 12, 13 and 14 in respect of the case law and the Appellant's particular circumstances on the one hand, and the conclusion that the appeal could not succeed on asylum grounds (or indeed in respect of Article 3) on the other. It is, with respect, unclear as to what the judge was concluding and why this was the case. It is also unclear as to whether or not the judge took into account the Appellant's particular circumstances, including most importantly his age and the lack of family support, when concluding that he could not succeed under Article 15(c) of the Qualification Directive.
13. Second, in respect of the Respondent's challenge, the judge has purported to allow the appeal on Article 8 grounds on the basis of paragraph 276ADE(1)(vi) of the Rules. This is flawed first and foremost on the basis that this particular sub-paragraph could not apply to the Appellant because he was and remains a minor. Subparagraph (vi) of paragraph 276 applies only to those aged eighteen and above. The judge misdirected himself in law. Further, the judge has clearly paid no regard to the mandatory factors set out in Section 117B of the 2002 Act.
14. In light of the above I set aside the judge's decision.

Remaking the decision
15. Mr Armstrong initially submitted that this appeal should be remitted to the First-tier Tribunal with no findings of fact preserved. Mr Palmer suggested that the positive credibility findings could and should be preserved. On this issue I agree with Mr Palmer. The Respondent herself had initially accepted the core aspect of the Appellant's protection claim, namely the attempted recruitment by the Taliban. This concession was maintained on appeal. The judge himself, having heard additional evidence, concluded quite clearly that he regarded the Appellant as being a credible witness (see paragraphs 9 and 11). He has made these findings without qualification. The specific credibility findings have not been challenged by the Respondent and there is, in my view, no sound reason to deprive the Appellant of these positive findings at this stage. Therefore, I preserve the credibility findings reached by the judge. The errors of law committed by the judge relate to the application of the facts to the law and not to the findings of fact themselves.
16. Both representatives were agreed that I should remake the decision in this case myself, based upon the evidence before me. Mr Palmer suggested that I could rely on the skeleton argument provided by previous counsel at the First-tier Tribunal hearing, a copy of which is now on file. For his part Mr Armstrong had no objection to this and did not seek the opportunity to submit any further written submissions at a later stage. He made no additional oral submissions.
17. Therefore, I am remaking the decision based upon the following documentation: the Respondent's bundle; the Appellant's bundle, indexed and paginated 1 to 217; and the Appellant's skeleton argument.

Findings of Fact
18. In light of what I have said about the preservation of positive credibility findings made by the judge, I reaffirm the following findings of fact:
(i) the Appellant was born on 1 January 2000;
(ii) he originates from a small village in the district of Tagab in the province of Kapisa, to the North East of Kabul;
(iii) in the middle of 2015 the Appellant and his younger brother were forcibly taken by the Taliban to undergo training as potential suicide bombers;
(iv) in May 2015 they discovered that their family home had been destroyed by a bombardment. A maternal uncle assisted them in fleeing the Taliban and leaving Afghanistan, which they did, travelling through Iran and overland all the way to Calais. There they resided for several months before arriving clandestinely in the United Kingdom in March 2016;
(v) the Appellant does not know the whereabouts of his family, including his uncle;
(vi) he would return to Afghanistan as an unattached minor without family support.
19. The decision of the Upper Tribunal in AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) remains good law, and is clearly applicable to the circumstances of this case. In that decision the Upper Tribunal concluded that on the basis of the evidence then before the Tribunal children could not on the whole qualify for humanitarian protection on the basis of Article 15(c) of the Qualification Directive. It was said that the security situation in Afghanistan, whilst poor, was not at such a level as to place all children at risk. However, the Tribunal also concluded that:
"The background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child's best interests, a primary consideration when determining a claim to humanitarian protection."
20. In the light of the country information before me it is apparent that the situation in Afghanistan has certainly not improved since AA, if anything, it has deteriorated.
21. I turn first to the issue of risk in the Appellant's home area, that being the Tagab district of Kapisa Province. It is quite clear to me that the Appellant would be at risk of persecution for the Convention reason of being in a particular social group (namely, an unattached child) or by virtue of his imputed political opinion (perceived as being against the Taliban and in favour of the government). The risk would emanate from non-state actors, namely the Taliban, against whom it is quite clear (and indeed the Respondent has not sought to argue to the contrary) that the Afghan authorities could not provide sufficient protection. The home area is of course the very place where the Appellant and his younger brother had in the past been targeted. It is a place from which they escaped the clutches of the Taliban. Returning there would, I conclude, expose him to a very real risk of being detected once again by the Taliban, with the consequences of either being forcibly recruited once again or severely ill-treated for having "deserted" that organisation in the past.
22. I turn to the issue of relocation to Kabul. This is the place to which the Respondent would intend to remove the Appellant. The Appellant would return there as an unattached child with all the consequent risks applicable to that status and as highlighted by the Tribunal in AA. He would have no familial support in a location in which he has never resided previously. There is no evidence as to the whereabouts of the maternal uncle who assisted the Appellant in the past and I am satisfied that he cannot be relied upon as any sort of a reliable source of contact or practical assistance.
23. I conclude that there is a risk of persecution and/or serious harm in Kabul. This is primarily on the basis that the Appellant would be a minor without family support. The risks would relate to one or more of the following: recruitment by non-state actors such as the Taliban; criminal gangs; and/or traffickers. The country information and AA do not indicate that there is a sufficiency of protection for children in the Appellant's situation and facing similar threats. I conclude that no such protection would exist in this case.
24. In the alternative, there would, in my view, be a danger of the Appellant becoming destitute or otherwise having to live in circumstances of such hardship as to at the very least make the relocation unduly harsh in all the circumstances. I reiterate the fact that the Appellant is a child without family support. On any rational view, removal in those circumstances would be wholly against the Appellant's best interests.
25. In light of the above the protection claim succeeds insofar as the Refugee Convention and Article 3 are concerned, and I allow the appeal on this basis.
26. As the protection claim succeeds on the above grounds, he cannot succeed on Humanitarian Protection grounds.
27. I propose also to deal with the Article 8 claim. The Appellant does have a private life in the United Kingdom, albeit one that has only been established on a precarious basis and for a short period of time. He is in a stable environment and has the assistance of a social worker and, as I understand it, foster carers. It is quite clear that his best interests lie in remaining in a stable and safe environment, in other words, in the United Kingdom. A removal to Afghanistan, even if that did not amount to persecution and/or serious harm, would run wholly contrary to those best interests. The Appellant would be returned to a very unstable situation with no family support whatsoever.
28. Of course on the Respondent's side of the scales there is the ever-important factor of the public interest. The Appellant has been here on a very precarious basis throughout (I note that he has discretionary leave until 1 August 2017). I also bear in mind the fact that the Appellant cannot satisfy the requirements of the Rules insofar as they relate to Article 8. He is clearly not financially independent and his ability to speak English is limited (although I appreciate that he is doing his best to learn English). The private life on the face of it should be accorded little weight only but I must also take into account of course the fact that he is a minor. There are compelling factors in this case, namely the Appellant's age and circumstances upon return to Afghanistan, which permit me to attach greater weight to the private life than would otherwise be the case.
29. Weighing up the competing interests in this particular case, I conclude that the balance tips in favour of the Appellant, albeit by a narrow margin. Whilst his best interests are predicated upon a short and precarious stay in the United Kingdom, they are nonetheless a significant factor. That is because they sit in very sharp contradistinction to the situation he would find himself in upon return to Afghanistan. There he would be exposed at the very least to extremely difficult living conditions, no family support, no obvious means of providing for himself to any reasonable extent, and living under a constant risk of falling victim to the harmful intentions of others. Thus, in my view, there are indeed compelling circumstances in this case such as to permit me to allow his appeal on Article 8 grounds as well.

Notice of Decision
The decision of the First-tier Tribunal contained material errors of law.
I therefore set that decision aside.
I remake the decision by determining that the Appellant's removal would breach the United Kingdom's obligations under the Refugee Convention, and would be unlawful under section 6 of the Human Rights Act 1998 (in respect of Article 3 ECHR)
I also determine that the Appellant's removal would be unlawful under section 6 of the Human Rights Act 1998 (in respect of Article 8 ECHR)
Accordingly, the Appellant's appeal is allowed

Anonymity
I make an anonymity direction in this case.
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 his 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 February 2017
Deputy Upper Tribunal Judge Norton-Taylor

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date: 15 February 2017
Deputy Upper Tribunal Judge Norton-Taylor