Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09800/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 17th January 2017
On 18th January 2017

Before

UPPER TRIBUNAL JUDGE LINDSLEY

Between

NIAZ MOHAMMED
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent
Representation:

For the Appellant: Mr A Reza, instructed by Sultan Lloyd Solicitors
For the Respondent: Mr P Nath, Senior Home Office Presenting Officer

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Afghanistan who says he was born on 1st January 1999. He is therefore, according to his dates, just 18 years old. He arrived in the UK on 9th June 2015, and claimed asylum the following day. His claim was refused on 31st August 2016. His appeal against the decision was dismissed by First-tier Tribunal Judge Bart-Stewart in a determination promulgated on the 22nd November 2016.
2. Permission to appeal was granted by Judge of the First-tier Tribunal Osborne on 16th December 2016 on the basis that it was arguable that the First-tier judge had erred in law in failing to deal with the claim that the appellant was entitled to refugee status as he was afraid of being recruited into the Taliban or other militias; and for failing to deal with the claim that he could not be returned to Afghanistan due to the situation makes his return in contravention of Article 15 (c) of the Refugee Qualification Directive. The First-tier Tribunal was clearly requested to consider these arguments by the appellant's representatives.
3. The matter came before me to determine whether the First-tier Tribunal had erred in law
Submissions
4. The appellant contends that at the hearing he argued that he feared forcible recruitment by the Taliban and other militias if returned to Afghanistan, and that arguments were put to the First-tier Tribunal that Afghan men of fighting age were a particular social group, and reference was made to UNHCR materials on this point, and to country of origin evidence supporting this risk. No reference, it is argued, was made in the decision of the First-tier Tribunal to this basis of appeal.
5. The appellant also contends that he argued before the First-tier Tribunal that he could not be returned because Article 15(c) of the Qualification Directive was engaged as the level of indiscriminate violence had risen so that it was so high that he faced a real risk to his life and person simply by being present in that country. Country of origin evidence was provided showing a deterioration in the security situation since AK (Article 15(c) Afghanistan CG [2012] UKUT 00163 was decided. There is, it is argued, no reference in the decision of the First-tier Tribunal to this basis of appeal.
6. The appellant also contends that there was no consideration of evidence from UNHCR about reintegration problems for returnees that he put before the First-tier Tribunal, and thus, he argues, the First-tier Tribunal did not properly consider whether the appellant would have very significant obstacles to integration on return and in turn unlawfully failed to consider whether the appeal under the private life Immigration Rules at paragraph 276ADE (1) (vi) should have been allowed.
7. Mr Nath observed that the First-tier Tribunal had found the appellant not to be credible in relation to the individual claim he had made to be at risk and the findings with respect to this are set out from paragraph 39 - 47 onwards of the decision. Findings had also been made that the appellant could live with his uncle or mother/siblings and grandfather for whom he had contact details.
8. Both parties agreed that if I found the First-tier Tribunal had erred in law that the appropriate course would be for me to remit the matter back for hearing de novo by the First-tier Tribunal.

Conclusions - Error of law
9. The appellant is comprehensively disbelieved with respect to his individual claim.
10. The First-tier Tribunal has erred in law in failing to make a clear finding as to the appellant's age.
11. There is no reference in the decision to whether the return of the appellant would be contrary to Article 15 (c) of the Qualification Directive or discussion of the situation in Afghanistan with regards to indiscriminate violence; or whether the appellant is at real risk of serious harm as a result of a general risk of recruitment to a militia/ Taliban; or any consideration of paragraph 276ADE of the Immigration Rules. I do not find that a finding that the appellant could live with relatives addresses the test of whether he would have very significant obstacles to integration, and thus any ground of appeal under paragraph 276ADE of the Immigration Rules.
12. The grounds of appeal mention a fear of general lawlessness in Afghanistan and base the appeal on humanitarian protection and Article 8 ECHR. The skeleton argument makes reference to a fear of recruitment by the Taliban on the basis of the appellant being of fighting age and made arguments about the appellant's entitlement to subsidiary protection given the security situation in Afghanistan setting out extracts from country of origin reports. I therefore find that the decision of the First-tier Tribunal errs in law for failure to deal with these grounds of appeal which the appellant had clearly raised.
13. I find that this failure is a material error notwithstanding the decision in R (On the application of HN and SA) Afghanistan v SSHD [2016] EWCA Civ 123 with respect to Article 15(c) of the Qualification Directive, particularly as this appellant submitted country of origin materials going to risks from indiscriminate violence which came into existence after the date of the decision the Court of Appeal was reviewing in HN and SA.

Decision:
1. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
2. I set aside the decision in its entirety.
3. I remit the remaking of this appeal to the First-tier Tribunal.

Signed: Fiona Lindsley Date: 17th January 2017
Upper Tribunal Judge Lindsley