Upper Tribunal (Immigration and asylum chamber), 2016-06-07, AA/04919/2013 & Ors.
| Jurisdiction | UK Non-devolved |
| Date | 07 June 2016 |
| Published date | 06 June 2017 |
| Hearing Date | 01 June 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/04919/2013 & Ors. |
Appeal Number: AA/04919/2013; AA/04920/2013; AA/04921/2013; AA/04922/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/04919/2013
AA/04920/2013; AA/04921/2013; AA/04922/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 1st June 2016 |
On 7th June 2016 |
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Before
Upper Tribunal Judge Southern
Between
GS (1)
SK (2)
JK (3)
KS (4)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms T. Lay of counsel, instructed by Legal Justice, solicitors
For the Respondent: Mr S. Kotas, Senior Home Office Presenting Officer
DECISION
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The appellants have been granted permission to appeal against a decision of First-tier Tribunal Judge Reed who, by a decision dated 24 June 2013, dismissed their appeal against the immigration decisions that accompanied the decision of the Secretary of State, made on 17 May 2013, to refuse their asylum and human rights claim. Although permission to appeal was granted as long ago as 15 August 2013, the journey of this appeal through the Upper Tribunal has been regrettably delayed pending fresh country guidance relevant to the issues arising in this appeal, now published as TG and others (Afghan Sikhs persecuted) Afghanistan [2015] UKUT 595 (IAC).
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The appeal to the Upper Tribunal came eventually before Upper Tribunal Judge Plimmer on 24 August 2015, although the fresh country guidance had still not by then become available. Judge Plimmer, who made an anonymity order that remains in place, found that the First-tier Tribunal Judge had made an error of law material to the outcome of the appeal and so she set aside his decision and adjourned the appeal to be resumed once fresh country guidance, the publication of which was thought to be imminent, was available. It is helpful to set out first her summary of the issues before her:
“This is a matter that has previously been considered by First-tier Tribunal Judge Reed. He dismissed the appellant’s appeal in a decision dated 24 June 2013. Judge Reed did not accept the appellant’s claim to have been specifically targeted whilst in Afghanistan. The Judge went on to consider the general risk for Sikhs in Afghanistan but concluded that he was not minded to depart from SL and others (returning Sikhs and Hindus) Afghanistan CG [2005] UKIAT 00137. The appeal was therefore dismissed.
In a decision dated 15 August 2013 Upper Tribunal Judge Rintoul considered it arguable that Judge Reed failed to give sufficient weight to the material contained in DSG (Afghan Sikhs: departure from CG) Afghanistan [2013] UKUT 148 (IAC).
The matter was then stayed in order to await the promulgation of a CG case on Sikhs in Afghanistan, which was heard in March 2014. That decision is now understood to be imminently due for promulgation after a further hearing held in August 2015. Both representatives however agree that it is appropriate for me to consider whether or not the decision contains an error of law in advance of the promulgation of the CG decision.”
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As can be seen from Judge Plimmer’s decision, which is annexed below, before the First-tier Tribunal (which, incidentally, is focussed upon the claim of the first appellant but plainly addresses the claims brought by each of the appellants) the appellants pursued two grounds of appeal. First, they asserted that the judge erred in law in rejecting as untrue their claim to have been specifically and individually targeted by men working for a powerful war lord identified as “Mohammed Khwaja Nabi” because his reasoning for reaching that adverse credibility finding was said to be legally insufficient. The second ground was summarised by Judge Plimmer as a complaint that the Judge erred in law in requiring further fresh evidence to support the submission that SL should not be followed when that very material is contained within the decision of DSG.
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Judge Plimmer accepted that the second ground was made out and on that basis set aside the decision to be re-made once the fresh country guidance was available. Should it be necessary for me to do so, I record that this error of law applies also to the decisions to dismiss the appeals of the second, third and fourth appellants so that those decisions are to be remade also. However, Judge Plimmer did not accept that the adverse credibility findings disclosed legal error and so she directed that the appeal was to be re-determined on the basis of the facts in relation to the circumstances of the appellants as they were found to be by the First-tier Tribunal Judge. That meant that the account offered by the first and second appellants relating to claimed adverse attention from men associated with a local war lord is to be regarded as untrue.
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Today, Mr Lay seeks to reopen those credibility issues. That is because, he submits, it can now be seen that the judge was simply wrong to doubt the existence of a powerful war lord named “Khuja Nabi”, submitting that the fact of the differences between how that name is spelt in the written and oral evidence before the First-tier Tribunal and how it is spelt in Dr Giustozzi’s two reports is immaterial.
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Dr Giustozzi gave evidence before the Tribunal in TG & others. He provided a report to the Tribunal, an extract of which was reproduced at paragraph 36 of the country guidance judgment, with emphasis added:
“There are plenty of criminal gangs in Afghanistan and the most active and famous among them operate in and around Kabul and have often been targeting Sikhs. The network of former militia commanders in control of Parwan is known as the 'Parwan Mafia' which rotates around characters such as the former Minister of Interior, Zarar Moqbel Ahmad, Abdul Basir Salangi (Chief of Police of Kabul in 2003), Ayub Salangi (former Chief of Police of Kabul and currently Deputy Minister of Interior), Amanullah Guzar (former Chief of Police of Kabul), Haji Almas (Member of Parliament) and Maulana Sayyidkhel (former Chief of Police of Parwan and Kunduz, now dead). Through a cousin of Zarar, Khuja Nabi, the network maintains contact with two of the most important criminal gangs in Kabul, those led by Rais Khodaidad and Habib Estalifi, a fact which allows the network to carry out targeted assassination and other operations against rivals and enemies. In Nangarhar province one of the main sources of criminal violence have been the militias of Hazarat Ali. Attacks took place wherever Sikh or Hindu communities existed in Afghanistan, including Kabul, where a commander of Jamiat-i-Islami, Rahim, was even sentenced to death for his crimes against Sikhs and others, but managed to evade execution due to his connections. Rahim is the only known case of somebody having been prosecuted for an attack on Sikhs.”
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The judge, who heard oral evidence from the first and second appellants, gave a number of reasons for rejecting the account of harassment by men associated with a war lord named Nabi. It was not just that there was no documentary evidence offered of the existence of this person, which the judge found not credible if he were in fact a powerful and dangerous war lord. Quite apart from this, the judge did not accept to be credible that ruthless men associated with such a powerful man, able to act with impunity in taking money from whomever they chose and, literally, getting away with murder, would be deterred from entering the appellants’ home just because they shouted at them, as the appellants had described in their evidence. Also, for similar reasons, the judge did not accept to be true the appellants’ evidence of Nabi having gone to the police to file a complaint against the first appellant in order to have him arrested. That was because a powerful war lord who could have his enemies killed with impunity, would not need to have resort to the police in order to have an enemy or opponent removed.
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The judge was reinforced in rejecting as untrue the claimed persecutory harassment at the hands of Nabi’s men by the implausible chronology of events asserted in the appellants’ evidence. The event that led to the decision to leave Afghanistan was said to be the murder by Nabi’s men of the first appellant’s brother in a botched kidnap attempt. This took place, according to the appellants, in late February or early March 2013, approximately 18 months before they finally departed from Afghanistan. It was claimed that Nabi filed a police complaint against the first appellant in response to him having reported to police the shooting of his brother. However, this was said not to have been done until 30 May 2013. Quite apart from the fact that it was not found to be credible that a powerful war lord would seek to protect himself against a vulnerable individual by filing against him a false police complaint, the judge found lacking in...
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