A.b.c. (ap) For Judicial Review Of A Decision By The Secretary Of State For The Home Department On 6/11/2012 To Remove The Petitioner From The Uk To A

Pursuer: Forrest; Drummond Miller LLP

Defender: Gill; Office of the Advocate General

22 February 2013

Introduction

[1] The petitioner is a citizen of Afghanistan, born on 1 January 1990. He sought asylum in the United Kingdom on 16 April 2011. The respondent decided by letter and notice of 12 May 2011, to refuse the claim and remove the appellant to Afghanistan. The petitioner appealed to the First-tier tribunal on the grounds that he had a genuine fear of persecution if he were returned to Afghanistan, that he was a refugee and that his rights in terms of articles 2 and 3 of the Human Rights Convention would be breached if he were returned to Afghanistan.

[2] In summary the petitioner's account before the First-tier tribunal was this: the petitioner's father was living and working as a Mullah in Jalalabad. His father and friends were taking taxi drivers from the city and killing them. The petitioner's father's friends, one man and two women, were arrested and confessed and were then seen on television. The petitioner's father was not arrested. His father advised him and the rest of the family to leave the area as they would be arrested by the police. The petitioner's father also warned him that the family of the people he had killed would seek to take revenge on the petitioner. The petitioner and his family left their home village and went to their maternal uncle's house in Bagram. The petitioner then travelled on to Kandahar with an agent who took him out of Afghanistan.

[3] On the basis of the foregoing the petitioner's position was that he was afraid that if he was returned to Afghanistan, he would be killed by the families of the people whom his father had killed. He also feared ill-treatment from the authorities. He considered that there was nowhere in the country where he would be safe and the police and government would not protect him.

[4] On 11 July 2011 the First-tier tribunal refused his appeal on both asylum and human rights grounds. In making these findings the immigration judge held that she did not believe the petitioner's account and did not find him to be credible and reliable. The basis for her said findings are as set out in paragraphs 22 and 23 of her determination and are as follows:

"I found him to be particularly vague and evasive in giving his oral evidence. The Appellant seemed unable or unwilling to answer direct questions and I was particularly careful to check that this was not due to any difficulties understanding the interpreter. I have taken account of the fact that the Appellant is not well educated but he has given so many different accounts of what he claims to have happened in connection with his father in Afghanistan that I cannot accept his evidence. There are numerous inconsistencies, as highlighted in the reasons for refusal letter, in the evidence given by the Appellant at his asylum interview. In oral evidence further inconsistencies were apparent between the Appellant's oral evidence and his written statement given to his solicitors only two days before the hearing. The Appellant states in his statement that he heard on the radio that his father's accomplices had been deprived of sleep for three nights to make them confess but in his oral evidence he stated that he came by this information from the agent who read about it in a newspaper article and told him about it. The Appellant stated in his oral evidence that his father was not arrested however when the Home Office Presenting Officer asked him how his father could then have escaped if he had not been arrested, the Appellant stated that he did not know if his father had been arrested. I found this very unconvincing. The Appellant then went on in his oral evidence to state that his name was not (ABC) but was ZM. This is despite the fact that two days earlier he had given a statement to his solicitors stating that his name was (ABC). The Appellant's evidence with regard to how he came to have £413 on him when arriving in the UK, I also found very unconvincing. He stated in oral evidence that his uncle gave it to him when he came here but then went on to say that the agent gave it to him in France. However he had previously stated that he had had the funds since leaving Afghanistan. I find that all these inconsistencies seriously undermine the credibility of the Appellant's account. I am also required by Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to take as damaging to the Appellant's credibility the fact that he gave a false name to Border Control in France on 15 November 2008, that he travelled through a number of European countries before coming to the UK and did not take advantage of a reasonable opportunity to make an asylum claim and also that the Appellant did not claim asylum until after he was arrested for working illegally in the UK. The Appellant also initially gave an address and then stated that he had no address. These behaviours fall within Section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and are extremely damaging to the Appellant's credibility.

The Appellant has provided a document which he claims to be a newspaper report about his father stating that his father had been charged with the killing of passengers of hijacked cars but escaped. The Appellant's oral evidence however was that his father had not been arrested. The Appellant has produced, what he claims to be, an identity card for his father. I however note that according to the background information these documents are the most widely forged documents in Afghanistan and I accordingly give this little weight. I also found the Appellant's evidence with regard to how he came to be in possession of these documents unconvincing. He stated that his uncle had sent them and that his uncle lives in Bagram. The DHL label shows that the documents were sent from Lahore in Pakistan. The Appellant has not given any satisfactory explanation for this."

[5] The petitioner did not appeal the decision of the immigration judge and accordingly his appeal rights became extinguished on 27 July 2011. Thereafter the petitioner absconded from immigration control until 19 September 2012 when he was encountered by Strathclyde Police and was detained. On 6 November 2012 the respondent issued a decision to remove the petitioner from the United Kingdom on 19 November 2012.

[6] On 12 November 2012 the petitioner's solicitors wrote to the respondent intimating a fresh claim for asylum, humanitarian protection and breach of articles 2 and 3 of the Convention (6/2 of process). In this letter the petitioner relied on what he contended was new material, namely: first, a letter from the Ministry of Interior, Afghanistan which contained a warrant for the petitioner's arrest. Secondly, a letter from the head of the crime branch which appeared to be addressed to all police stations advising them that the petitioner was to be arrested on account of criminal activities by his father.

[7] The respondent in her decision letter dated 18 November 2012 (6/4 of process) decided on the basis of the further submissions made to her first not to reverse the decision on the earlier claim and secondly that the submissions did not amount to a fresh claim in terms of paragraph 353 of the Immigration Rules.

[8] In holding as above the respondent stated:

"7. Your client's appeal was dismissed on asylum and human rights grounds and it was concluded that he did not qualify for humanitarian protection.

8. Your submissions have been considered against this background. We note that they do not seek to challenge the assertions, analysis and conclusions in the refusal letter of 12 May 2011, which were accepted by the immigration judge, but seek to rely on two pieces of evidence of unknown provinence. Both letters are undated and no explanation has been provided as to when they were issued and how they have come into your client's possession. Your client has also failed to explain why, if they were previously available, these documents have been produced now: or, in the alternative, if they have only recently been issued, why they should have been issued now when your client left Afghanistan several years ago. The fact that your client failed to challenge the findings made at appeal, absconded from immigration control, made no further representations and has produced further evidence only after being served with removal directions, is considered to be significant and suggest that your client is merely trying to frustrate his lawful removal from the UK.

.....

10. As stated above, in your client's case, there is no evidence indicating how the relevant documents came into existence, nor any evidence supporting their genuineness."

[9] The petitioner in light of the said decision letter raised the present petition seeking reduction of that decision together with that contained in the letter of 6 November 2012. It was accepted by both parties that if the decision of 18 November 2012 were reduced then it followed from that that the decision of 6 November 2012 should be reduced. All of the arguments before me related to the decision contained in the letter of 18 November 2012 (hereinafter referred to as "the decision letter").

[10] Having obtained interim suspension of the decision of 6 November 2012 this matter came before me for a first hearing.

The law

[11] Before turning to the parties' detailed submissions it is perhaps convenient to set out that parties were agreed on certain aspects of the law: first as regards the approach the court must adopt in...