Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10766/2016

THE IMMIGRATION ACTS

Heard at Field House
Sent to parties on:
On 7 February 2017
On 17 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE L MURRAY

Between

f s
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Bonavero, instructed by South West London Law Centre
For the Respondent: Ms Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Afghanistan and is a minor. He sought asylum in the UK and his claim was refused by the Respondent in a letter dated 27 May 2016 as the Respondent did not believe his account and concluded that there would be no breach of his rights under the European Convention on Human Rights.
2. The Appellant appealed against that decision under section 82 of the Nationality Immigration and Asylum Act 2002 (NIAA) and his appeal was dismissed by First-tier Tribunal Judge CM Phillips in a decision promulgated on 14 December 2016 on asylum, humanitarian protection and human rights grounds. The Appellant sought permission to appeal against that decision and permission was granted by Designated First-tier Tribunal Judge MacDonald on 11 January 2017. The basis of the grant was that the First-tier Tribunal judge had made a number of adverse inferences from the Appellant’s lack of knowledge about his family circumstances and it was arguable that the Judge’s approach may have been unfair on the Appellant disclosing a possible error of law.
3. The grounds assert that the First-tier Tribunal adopted a flawed approach to documentary evidence and that there was a flawed application of the ‘liberal’ standard of proof.
4. At the hearing Mr Bonavero submitted that the Appellant was an unaccompanied asylum seeking child and special care needed to be taken. Key documents were letters sent by the Appellant’s uncle who had been an interpreter for the military and therefore granted a special immigrant visa. The documents were handed to Respondent at the time of his substantive interview. Unsurprisingly given his age, the Appellant was not able to answer as to the contents of those letters. The Judge found that there was an inconsistency between being able to provide documents and his lack of knowledge of them and criticised the Appellant for not familiarising himself with the documents. The Appellant was a Dari speaking child and he did not speak English. There was a shared burden in certain types of cases. The documents had full contact details for everyone involved by the Respondent relied on Tanveer Ahmed v SSHD [2002] UKIAT 00439. The Judge concluded that the evidence was unconvincing due to the fact that there was an absence of knowledge about finances and only paid lip service to the liberal application of burden of proof.
5. Ms Brocklesby-Weller submitted that the Appellant was unable to advance much detail in support of his claim. The Judge was in essence aware of his youth and ignorance but found that he was at the later end of spectrum of childhood and had a basic understanding and did attend school. The Judge conducted an appraisal of the documentation and at paragraph 78 the crux of the decision was that the Appellant had been in contact with his uncle and it was therefore not plausible that he would not know the details contained in the documents and he would know nothing of their content. The Appellant was unable to give simple answers. Both parents were unemployed and they were all wholly reliant on his uncle and the conclusion was that it was not credible that he was unable to recognise change in support. The Judge was alert to the standard of proof and alert to the fact that it was a child. The Judge had not just paid lip service and there was nothing in the Tribunal’s decision to show that the Judge had treated the Appellant as someone other than a child.
6. Mr Bonavero said that the Judge concluded that it was not plausible that someone would submit those documents and not know what was in them. The most plausible explanation was that this was a child. The finding was irrational because there was no reason why the Appellant should be criticised for not memorising the evidence on which he relied.
Discussion
7. The grounds argue that the First-tier Tribunal took a flawed approach to the documentary evidence. It was the Appellant’s account that he lived in a village in Afghanistan with his family until he left the country. According to his account, his parents did not work but the family lived with the Appellant’s paternal uncle JS who supported them by working as an interpreter for the ‘Americans’. Some time before the Appellant left Afghanistan, JS left with his immediate family for America under the Special Immigration Visa Scheme organised by the US Army. After that point the Appellant’s family started to receive threats from the Taliban who had become aware of JS’s work for the Americans. The Appellant’s father decided that they should leave as they too were in danger from the Americans. During the journey, the Appellant and his brother were separated from the rest of the family, the Appellant’s brother was badly injured and the Appellant continued alone to the UK.
8. The Appellant provided documents he said related to his uncle’s work as an interpreter which included a memorandum from G F, a Sergeant First Class in the UK Military confirming the uncle’s work. That memo included G F’s email address and telephone number. The Appellant had submitted copies of these documents to the interviewing officer at the beginning of his substantive interview. The First-tier Tribunal’s conclusions in relation to this evidence are at paragraphs 78 and 81 of the decision:
78. I find that the fact that the appellant was unable at interview to state where is [sic] uncle was based as an interpreter and unable to provide details concerning the different aspects of his uncle’s work is on the face of it inconsistent with the fact that he is in contact with his uncle and has provided a Memorandum, which provides precisely the information that the appellant was asked to provide at interview. The documents that the appellant has provided, also provide the answers to the questions of how often the appellant’s uncle would work, whom he worked for and yet at interview the appellant was unable to provide this information.
79. The Memorandum states now long the person referred in it was employed as interpreter but the appellant was unable to provide this information at interview. In the light of the appellant’s unfamiliarity with the contents of the documents that he sought to rely upon at interview, I do not accept the ground of appeal asserting that the respondent failed to give proper weight to the documents and was in error in applying Tanveer Ahmed [2002] UKIAT 00439 to these.
80. I note that none of the documents carry the full name given by the appellant for his uncle and this has not been explained. My attention was not drawn to any information to show if the name is unusual or a very common Afghan name.
81. I find that it is not unreasonable to expect the now sixteen year old appellant to be familiar with the contents of his documentary evidence and this appellant was plainly unaware of the contents when asked the questions at interview that gave him the opportunity to demonstrate the consistency and credibility of his core claims and the weight to be attached to his documentary evidence. The fact that the appellant was unable to answer simple questions about his uncle’s role when he claims to have been in touch with the uncle, and, provided documents that he had been given by his uncle to enable the appellant to substantiate his core claims undermines the appellant’s credibility and therefore the weight that can be attached to the documents, which fall to be considered in the round, in line with Tanveer Ahmed.
9. The grounds assert that the Judge’s approach is problematic because it is hard to follow the internal logic of the Judge’s position. It is argued that she states that it is inconsistent that the Appellant would provide the Memorandum at interview but not be able to answer questions relating to some of the evidence therein but that is undisputedly what happened and therefore how the sequence of events can be usefully characterised as ‘inconsistent’ is not clear. Further, the Judge referred to the Appellant not having ‘familiarised’ himself with the evidence in question but the Judge made no reference to the fact that the documents in question were in English, whereas the Appellant was a Dari speaking child from rural Afghanistan. It is said that it was impossible to understand why the Judge considered that the Appellant should have memorised it or why he should be criticised for not having done so.
10. Further, it is asserted that he Judge’s approach to the documentary evidence pays little regard to the Appellant’s age. It is said that the Judge was referred to the guidance set out by the Upper Tribunal in AA (unattended children) Afghanistan CG [2012] UKUT 00016 at paragraph 38 onwards which sets out the proper approach to evidence in children’s asylum appeals.
11. The Appellant’s accepted date of birth was 13 January 2000 and consequently he was 15 years old when he claimed asylum on 2 December 2015 and at the date of his screening interview and 16 at the date of his asylum interview on 17 May 2017. The First-tier Tribunal noted at paragraph 49 of the decision that the Respondent accepted the Appellant’s age and nationality. She refers to the case of AA at paragraph 50 and notes that the Respondent’s guidance for the assessment of an asylum claim made by a child reflects the UNHCR Guidelines on Child Asylum claims calling for a liberal application of the principle of the benefit of the doubt so that should there be some hesitation regarding the credibility of the child’s story, the burden is not on the child to provide proof, but the child should be given the benefit of the doubt.
12. The Judge did not refer to the Joint Presidential Guidance Note No 2 of 2010 “Child, vulnerable adult and sensitive appellant”, and the approach advocated therein in relation to the procedure to be adopted at the hearing and the approach to be adopted to the evidence. Paragraphs 38 to 40 of AA, to which the Judge referred, set out the approach required by Article 4 (3) of the Qualification Directive to credibility claims from minors; paragraphs 350 to 352X of the Immigration Rules which concern unaccompanied children and the Respondent’s Asylum Policy guidance in relation to the assessment of asylum claims by children and which states that:
“(1) more weight must be given to objective indications of risk than to the child’s state of mind;
(2) other factors to consider might include: documentary evidence, objective country evidence, evidence from people with knowledge of the child - including post arrival in the UK;
(3) a case owner must not draw an adverse credibility interference from omissions in the child’s knowledge if it is likely that their age or maturity is a factor or if there are logical or other reasons for those omissions;
13. The Judge clearly had regard to the guidance in relation to the assessment of claims by children as she properly looked at objective indications of risk at paragraphs 56 to 59 of the decision and noted that there was an absence of reference in the background evidence to the sort of individual, targeted persecution by the Taliban claimed by the Appellant, based on the activities of a relative in support of the international forces whose departure from Afghanistan was all but completed by the end of 2014. However, notwithstanding the fact that the Judge made a number of sound and well-reasoned adverse credibility findings, I conclude that there was an error in the First-tier Tribunal judge’s approach to the Appellant’s lack of knowledge of the contents of the Memorandum. The Memorandum is a two page document written in English purportedly emanating from the Department of the Army. It recommends J S for special immigrant status under the Special Visa Program for translators and interpreters and sets out how he assisted the army and his professional behaviour and the risks he faced. It also sets out how long he had worked for the American Army and where he worked. It recommends that he be allowed to leave the country of Afghanistan allowing him to live in peace, so that he is not in fear of being identified, captured or killed.
14. It was the Appellant’s account that he did not know how long his uncle had been working for the Americans and that he did not tell people the details of his work because he was afraid. The First-tier Tribunal Judge made an adverse credibility finding against the Appellant because he was unable to demonstrate that he was familiar with the contents of the Memorandum and accompanying documents. However, in so concluding the First-tier Tribunal did not give any weight to the fact that the documents were in English and the Appellant was a Dari speaking child. Whilst the Appellant may have been in contact with his uncle, there is no reference in the determination to any evidence that the Appellant had had the contents of the documents translated to him or how he should have familiarised himself with them. I therefore find that the First-tier Tribunal did not take into account relevant factors that regarding omissions in the Appellant’s knowledge and therefore adopted a flawed approach to the assessment of his evidence given that he was a child.
15. Both representatives agreed that were I to find an error of law the appeal should be remitted to the First-tier Tribunal for a de novo hearing. I preserve no findings of fact.

Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision.
I remit the matter to the First-tier Tribunal for re-hearing.

Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to 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

Deputy Upper Tribunal Judge L J Murray