Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/13283/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision and Reasons Promulgated
On: 25th April 2017
On: 27th April 2017

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

M R
(anonymity direction made)
Appellant
And

The Secretary of State for the Home Department
Respondent

For the Appellant: Ms A. Smith of Counsel instructed by Islington Law Centre
For the Respondent: Mr K.Norton , Senior Home Office Presenting Officer

DECISION ON ‘ERROR OF LAW’

1. The Appellant is a national of Afghanistan date of birth 30th May 2001. He appeals with permission1 the decision of the First-tier Tribunal (Judge RG Walters) dated 10th February 2017 to dismiss his protection appeal.

Anonymity
2. The Appellant is a minor seeking international protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:
“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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Background and Matters in Issue
3. The Appellant arrived in the United Kingdom on the 22nd April 2016. He was given leave to enter in order that he could join his elder brother, who had already been recognised as a refugee by the UK government. The Appellant had until that time been living in the ‘jungle’ in Calais.
4. The basis of the Appellant’s claim is that he is from Nangarhar province and left because of threatening behaviour towards his family from Daesh. Daesh took his father and elder brother sometime in 2015 and intimated that the Appellant’s elder brother in the UK (‘A’) had “left Islam”. They said that they knew that the family had met up with A in Pakistan. His mother had been frightened by these events and so had arranged for the Appellant to come here.
5. The Respondent had rejected the claim on credibility grounds but had granted a short period of discretionary leave because of the Appellant’s young age. His age has never been in dispute. It is therefore accepted that at the date of the material events in Afghanistan the Appellant was 13; he was 14 on arrival and at the date of the First-tier Tribunal determination he was 15.
6. When the Appellant’s appeal came before the First-tier Tribunal both he and his elder brother ‘A’ gave live evidence. He relied on an expert report prepared by Dr Antonio Giustozzi who confirmed that the Appellant’s home village is in “one of the main areas of Daesh activity and is mostly under its control”. Dr Giustozzi considered the claim to be plausible, given that Daesh have a policy of maintaining a strict control over the local population, rely on spies to provide key information about suspect families and consider the Appellant’s tribe, the Mohmands, to be hostile to them.
7. The First-tier Tribunal did not believe the claim. It found, in summary, that the Appellant had been sent here by his family for socio-economic, rather than protection, reasons.
8. The grounds of appeal are that the First-tier Tribunal erred in the following material respects:
(i) Rejecting without intelligible reason the expert evidence of Dr Giustozzi;
(ii) Making findings unsupported by reasons/failing to give sound reasons;
(iii) Failure to put matters to the witnesses;
(iv) Making the irrational finding that A was a “pathfinder” for the Appellant on a road to economic betterment;
9. At the hearing before me Mr Norton for the Respondent opposed the appeal. He submitted that it was clear from the determination that the Tribunal had had regard to the report of Dr Giustozzi; it had however not been obliged to accept his evidence. The credibility of the claimed events was a matter for the Tribunal. It had been entitled to reject the evidence about the perceived risk in Nangarhar for the reasons given, and to have made the finding that it did about Kabul. The fact that the Appellant’s brother A had been found to be at risk in 2011 was not directly material, since time had moved on.

My Findings
10. I did not find this determination easy to follow. At paragraph 8 the Tribunal directs itself to the appropriate standard of proof, that being the lower standard applicable in protection cases. At paragraphs 27 and 28 the determination makes reference to the Appellant’s age and to the applicable guidance on dealing with claims from children, noting that the benefit of the doubt should be “applied more liberally” in such cases. It is not apparent from what follows that the Tribunal followed its own direction.
11. I say this for the following reasons. First, the account given by the Appellant is a relatively straightforward one, with no obvious internal inconsistencies. No credit appears to have been given for that. The account of Daesh taking over the Appellant’s home area, subjecting the local population to their control and targeting perceived opponents is wholly supported by the country background evidence, in particular the expert evidence of Dr Giustozzi. No credit appears to have been given to that. The Appellant’s evidence was in large measure corroborated by that of his brother A, who had already been found to be a credible witness and who was a recognised refugee. No credit appears to have been given for that.
12. Instead the Tribunal embarks on a review of the plausibility of the claim without making clear findings on the evidence. Having heard the submissions of the parties I am satisfied that each of the findings, such as they are, are flawed for legal error.
13. At paragraphs 35-36 the Tribunal appears to doubt that the family travelled to Pakistan as claimed in 2014 and 2015 because there was no evidence that they had sought the permission of Daesh to do so: this was a reference to Dr Giustozzi’s evidence that the organisation seeks to maintain a tight control over the local population by, for instance, imposing travel restrictions. Whilst it is not at all clear what weight the Tribunal gave to that observation, it is a ‘finding’ that cannot stand, for the simple reason that it was not a point put to either the Appellant or his brother. Mr Norton submitted that it was an “obvious” point arising from Dr Giustozzi’s report. I struggle to see how these two young witnesses should have apprehended it to be obvious where neither the HOPO nor the Tribunal appeared to regard it as so at the hearing.
14. Paragraph 37-40 appears to reject (again it is unclear) without reason the evidence that Daesh became aware of the fact that A was living in the UK. Dr Giustozzi had commented on this evidence that it was plausible given that the family lived in a village, and that Daesh were likely to have informants in the local population. I hardly think one needs expert evidence on this point. There is nothing incredible or implausible in the suggestion that people in the neighbourhood would have known about A being here, and that this information would have filtered through to Daesh.
15. Paragraph 41 comments on the fact that Dr Giustozzi has not given any examples of Daesh targeting families because they have members abroad in non-Muslim countries. Although, again, no finding is given in conclusion, the suggestion left hanging is that the account is not supported by the background material. What that analysis omits to weigh in the balance is the fact that the same material – including Dr Giustozzi’s commentary – indicates that Daesh use arbitrary and oppressive means of controlling the local population, that they are in control of the Appellant’s home village and that they have a particular hostility towards his tribe. Those were all material factors capable of displacing the negative inference that the Tribunal appeared to draw from the absence of direct evidence on all fours with this account. It was an error of law to ignore them.
16. Paragraphs 43-44 are concerned with the safety or otherwise of Jalalabad. The Respondent had not, at least in the reasons for refusal letter, posited Jalalabad as a place of alternative relocation; given the terms of the Respondent’s policy (as set out in the Country Information and Guidance) it would seem doubtful that the HOPO took that line at the hearing. The Tribunal was however concerned with the objective evidence on the city because that is where the family initially fled in fear of the Taliban. Dr Giustozzi considered that Daesh had “some ability” to operate there, but it had not yet targeted individuals. Of this the Tribunal concluded, at paragraph 44:
“If that be the case, I did not find it believable that the Appellant’s family would risk sending him, aged 14, on the long and dangerous overland journey to the UK, as opposed to him relocating in Jalalabad with other family members”.
17. On first reading I did not understand this reasoning at all. The evidence of Dr Giustozzi is not rejected, but on the other hand it is not disputed that the Appellant did in fact make that journey described. Further reference is made to the perils of his journey [at paragraph 47], and [at 46] to the fact that Pakistan offered a “cheaper and safer” option than sending the Appellant all the way to Europe. It is only in paragraphs 47 and 48 that the point becomes clear: the fact that the family did not leave the Appellant in moderately safe Jalalabad, and instead chose to send here, indicates an ulterior motive:
“His family’s motives for sending him to the UK are, I find, because of a desire for him to be looked after and educated by the UK government.
The Appellant’s brother [A] has been a pathfinder. He arrived in the UK as a minor and went into foster care where he prospered. He did well academically and when he gave evidence said that he owns 60 per cent of a mobile phone shop”
18. Ms Smith strongly objected to this reasoning. I accept that it was legally flawed. The global conclusion that both brothers had come here simply to obtain an education and foster care was irrational. First, there was no evidential basis for it. Second, it was made without taking the actual evidence into account. No regard has been had, for instance, to the fact that they are from a place formerly under control of Taliban militias, and now under the sway of Daesh, where the civilian population has been subject to widespread human rights abuses for over a decade. More significantly no regard has been had to the fact that A had been found by another Tribunal, in a decision never challenged, to have come here because he had protection needs.
19. For the reasons set out above I am satisfied that the First-tier Tribunal did err in law in its approach to the claimed risk in Nangarhar. Ms Smith submitted that it followed that the findings on internal flight to Kabul could not stand, since they were necessarily infected by the assumption that this was a child whose family had taken an economic, rather than a protection-based decision, to send him abroad. I accept that this must be the case but for the avoidance of doubt set these findings aside for discrete errors. The Tribunal finds that the Appellant could live with his uncle in Kabul. Whilst it appears to be accepted that this man is an interpreter for USAID (as found by the Tribunal which determined A’s appeal) the Tribunal considers it reasonable that the Appellant live with him because there is no evidence that the Taliban have managed to attack him. This fails to weight in the balance a) the objective evidence that such interpreters are targets for terrorists, b) the evidence that only the immediate family of the interpreters are given protection and c) whether it would be reasonable to expect a child with clinically diagnosed mental health problems to live under those circumstances.

Decisions
20. The decision of the First-tier Tribunal contains an error of law such that the decision must be set aside.
21. I will re-make the decision in the appeal following a hearing to take place at Field House on the 13th June 2017.
22. There is a direction for anonymity.

Upper Tribunal Judge Bruce
25th April 2017