Shizad (sufficiency of reasons: set aside)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon Mr Justice Blake,Eshun |
| Judgment Date | 29 January 2013 |
| Neutral Citation | [2013] UKUT 85 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 January 2013 |
[2013] UKUT 85 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The President, The Hon Mr Justice Blake
Puper Tribunal Judge Eshun
For the Appellant: Ms K Cronin, instructed by the Brighton Housing Trust
For the Respondent: Ms E O'Bryan, Senior Home Office Presenting Officer
Shizad (sufficiency of reasons: set aside)
(1) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an appeal is determined, those reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge.
(2) Although a decision may contain an error of law where the requirements to give adequate reasons are not met, the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance has been taken into account, unless the conclusions the judge draws from the primary data were not reasonably open to him or her.
Introduction
The appellant is a citizen of Afghanistan born on 1 March 1993. He arrived in the United Kingdom in 2009. An application for asylum was refused by the respondent on the 16 April, 2012 and the appellant appealed to the First-tier Tribunal. On the 23 July, 2012 Judge Adio allowed his appeal. The respondent in turn appealed against Judge Adio's decision and leave to appeal having been granted on 3 January, 2013 Upper Tribunal Judge Eshun issued a determination finding an error of law directing that the decision be set aside and be re-made.
We not that the judge of the First-tier Tribunal made no anonymity order. No application has been made to us for anonymity and we make no such order of our own motion.
The decision of the First-tier Tribunal
The appellant comes from the Sherzad District of Nangahar. This is a province of Afghanistan on the eastern side of the country bordering Pakistan. The provincial capital is Kandahar and the background country evidence indicates that it is an area of high insurgent activity. His case is that his father was killed by relatives as a result of a land dispute and his mother arranged for him to flee Afghanistan at the age of fifteen when he was coming of age and expected to revenge his father's death with dangerous consequences for him. He also explained that he had been subject to pressure from Taliban forces to join them in the insurgency and finally that he was at risk of ill-treatment from the Government Forces because of the perception that he was a Taliban supporter.
There was a dispute as to whether he appellant was fifteen or sixteen when he arrived in the United Kingdom in June 2009. The judge decided in the appellant's favour that he was fifteen. As a result of the age dispute, the appellant has given an account of his circumstances to Social Services in an Age Assessment Interview, the UKBA in the asylum interview with an appropriate adult accompanying him, and in three witness statements the earliest of which was dated September, 2009. The appellant supported his claim to asylum by a report compiled by a well known expert on Afghanistan affairs, Dr Guistozzi, as well as a quantity of documentary background evidence.
Having given careful consideration to the Home Office reasons for doubting the claimant's credibility the judge was satisfied that he was a credible and reliable informant for reasons that he dealt with at some length between paragraphs 23 and 30 of his determination.
By way of conclusions, although the judge accepted that the appellant faced the three sources of threats described above, he decided that relocation to Kabul (which was where the Secretary of State intended to return him) offered a satisfactory option of internal relocation away from his home village that precluded international protection so far as the threat from his relatives or the Taliban was concerned. In this respect, the judge applied the conclusions of the UT in the Country Guidance case of AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC). In that determination the Upper Tribunal did not accept Dr Guistozzi's observations about the safety of the person in the appellant's situation in Kabul.
However questions of internal relocation would be inapplicable if the appellant had a well-founded fear of persecution on the basis of perceived political opinion because the governmental authorities suspected that he was a supporter of the Taliban insurgency. The judge accepted this aspect of the claim having examined the evidence as a whole.
The Secretary of State's Appeal
The Secretary of State submitted a notice of appeal addressing his finding in the following term:
“It is submitted that the judge has not given any adequate reasons for this finding. The only reason why the judge appears to have given for his conclusion is that there is a serious possibility that his brother in law may have given the appellant's name to the authorities when he was detained… The judge concluded at paragraph 23 that the appellant was fifteen when he arrived in the United Kingdom. The appellant's evidence was that he had never been personally involved with the Taliban. It is submitted that the judge had not given any reasons as to why the appellant's brother in law had given a young boy's name (and in which context) who has not been involved with the Taliban to the Authorities. Furthermore the judge had not adequately assessed how a mere disclosure of a young boys name several years ago would now place him at risk.”
Judge Eshun found merit in this ground and concluded in her determination:–
“I find the judge did make an error of law. He failed to give adequate reasons for his conclusion that the respondent's brother in law would have given his name to the authorities as being involved with the Taliban, that he would be seen to be a insurgent the result of which he was at risk from the authorities throughout Afghanistan. The judge's decision in respect of the respondent's imputed political opinion cannot stand. His decision is set aside and is to be re-made.”
None of the Secretary of State's grounds of appeal suggests that the judge erred in law when making his primary findings of fact and his conclusion on the credibility of the appellant's claim. In those circumstances, the re-making will take place on the basis of those primary findings of fact supplemented by any fresh material that the parties seek to place before us.
We would emphasise that although there is a legal duty to give a brief explanation of the conclusions on the central issue on which the appeal is determined, such reasons need not be extensive if the decision as a whole makes sense, having regard to the material accepted by the judge. Although a decision may contain an error of law where the requirements to give adequate reasons are not met, this Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirection of law, the fact-finding process cannot be criticised and the relevant Country Guidance is taken into account, unless the conclusions that the judge draws from the primary data before him were not reasonably open to him.
We have, therefore, concluded that our task is to carefully review the evidence before the judge relating to this basis of the appellant's claim, to determine whether it is capable of supporting the conclusions to which he came. We have also received some recent updating material to examine whether there has been any significant change of circumstances since the decision of the First-tier Tribunal.
The issue is whether he has a well -founded fear of persecution from the Afghan authorities by reason of his imputed support for the Taliban, and this assessment is conducted on the basis of a reasonable likelihood or real risk of adverse treatment.
The primary evidence
In his first witness statement of September 2009 the appellant gave details of his family as follows:
“My sister is called Sharifa. …she is nineteen years old. She is married to Aziz Rahman. I used to visit my sister and her husband. I used to go with him to the Madrassa. He was an elder of the village, a representative. He disappeared about 2 months before I left Afghanistan, and for 2 months we did not know where he was. Then we received a letter from the Government Forces saying he was in prison for having worked for the Taliban. I did not know that he was working for the Taliban before he went missing. After he was taken however, the Taliban started to come to me and ask me to join them… On two occasions they came to the Madrassa to talk to me but usually it would be in the evenings at home I would tell them that I did not want to join them. This happened about 6 times. The last time they came they took me away into the woods tied up my hands and beat me. They said they would release me, but they will be coming back in 2 or 3 nights to make me join them. It was then that I decided that I needed to leave Afghanistan, before they came for me. During this time the Government Forces also requested that I talk to them when they captured my brother in law he had given my name and others who had worked for the Taliban and that is why they wanted me. They told us this in a letter that we received about 2 days after we received the letter that said that Aziz was in prison. I did not know why Aziz would have said that because I had not been working for the Taliban and they may have forced him to say that.”
In his asylum interview the appellant said this:–
“My brother in law was working with the Taliban I was not aware of that. When he was arrested by the authorities after 2...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2021-09-21, DC/00131/2019
...its decision in KV [2018] EWCA Civ 2483. At paragraph 6, the Court endorsed the principles of law set out in BA and also in Deliallisi [2013] UKUT 85 (IAC). It may be helpful to summarise the main 28. An appeal under section 40A involves a full reconsideration of the decision to deprive a p......
-
Upper Tribunal (Immigration and asylum chamber), 2016-06-09, PA/01962/2015
...in deportation of this appellant. Consequently the appeal is dismissed.” 53. Whilst in Shizad (sufficiency of reasons: set aside) [2013] UKUT 00085 (IAC) it was made clear that reasons for conclusions in the central issues of appeals need not be extensive if the decision as a whole made sen......
-
Upper Tribunal (Immigration and asylum chamber), 2017-05-03, HU/06869/2015
...that the Judge comes to. The correct test in law has manifestly been applied. 28. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that the Upper Tribunal would not normally set aside a decision of the First-tier Tribunal where there has been no misdirect......
-
Upper Tribunal (Immigration and asylum chamber), 2016-12-30, IA/27840/2015
...he reached is well within the range of conclusions reasonably open to the Judge. 29. In Shizad (sufficiency of reasons: set aside) [2013] UKUT 85 (IAC) the Tribunal held that (i) Although there is a legal duty to give a brief explanation of the conclusions on the central issue on which an a......