Upper Tribunal (Immigration and asylum chamber), 2018-04-24, PA/01928/2017
| Jurisdiction | UK Non-devolved |
| Date | 24 April 2018 |
| Published date | 11 May 2018 |
| Hearing Date | 22 March 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/01928/2017 |
Appeal Number: PA/10928/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01928/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 22 March 2018 |
On 24 April 2018 |
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Before
UPPER TRIBUNAL JUDGE blum
Between
BL
(anonymity direction MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Harvey, Counsel, instructed by Legal Justice Solicitors
For the Respondent: Mr N Bramble, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is an appeal against the decision of Judge of the First-tier Tribunal McAll (the judge), promulgated on 3 May 2017, in which he dismissed the appellant’s appeal against the respondent’s decision dated 9 February 2017 refusing his protection claim.
Factual Background
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The appellant is a national of Afghanistan, date of birth [ ] 1979. He and his family, consisting of his wife and 3 sons, are Hindu. They entered the United Kingdom clandestinely on 8 September 2016. The appellant claimed asylum on that date.
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The appellant maintained that he and his dependents would be subjected to serious ill treatment if returned to Afghanistan on account of their religion. They lived in a district of Kabul since 2003 and had encountered harassment and discrimination based on their religion including the throwing of stones at their house, the posting of stickers on their door, and verbal abuse. The appellant’s wife could not go to the Hindu temples as she was unable to go out alone. Their oldest son was hit on the head with a stone because he was Hindu. On one occasion, two years before arriving in the UK, the appellant was hit by a soldier using a rifle butt because he was sleeping on a coach when the other Muslim passengers were praying. The appellant stopped working 2 months before leaving Afghanistan. He does not have a job to go back to and the family would have nowhere to live.
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Although she accepted that the appellant and his family where Afghan Hindus, the respondent rejected his account of their ill-treatment. This was because of internal inconsistencies in the appellant’s account relating to the reasons that caused the family to leave Afghanistan and the time that their problems started. The respondent relied on background evidence and the Country Guidance case of TG and others (Afghan Sikhs persecuted) Afghanistan CG [2015] UKUT 00595 (IAC) in concluding that members of the Hindu community did not face a real risk of persecution or ill-treatment such as to entitle them to a grant of international protection on the basis of their religious identity per se, and that the appellant and his family would be returning to Kabul as a family unit where there were functioning Hindu temples from which they could seek support and assistance.
The decision of the First-tier Tribunal
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The judge heard oral evidence from the appellant and his wife and considered a bundle of documents that included statements from them, several media articles, a ‘generic’ report by Dr Jasjit Singh, dated 9 June 2016 in respect of the status of Sikh women in Afghanistan, and a copy of TG.
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In the section containing his findings of credibility and fact the judge quoted extensively from TG and indicated that he had considered the background evidence published after TG. The judge said it was clear that the Afghan Hindu and Sikh communities continue to reduce in number as members of those communities seek better lives elsewhere. The communities remain concentrated in areas such as Kabul and are seen as easy targets for kidnaps and extortion. The judge found that the situation for Sikhs and Hindus had not improved since TG, but that the situation had not altered to such an extent that would entitle him to depart from the Country Guidance decision.
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At [30], with reference to the report by Dr Singh, the judge stated that this particular topic (the status of Sikh and Hindu women in Afghanistan) “… was considered and dealt with in the decision of TG and others.” The judge noted that Dr Singh arrived at “a different conclusion than the Tribunal in its consideration of the HJ Iran test”, and the expert’s opinion that “… the forced veiling of women contradicts the beliefs of seek women.” The judge noted that Dr Singh had not been called to give oral evidence whereas the expert in TG had been cross-examined. The judge was not satisfied that the Tribunal in TG would have reached a different conclusion if Dr Singh’s opinion had been communicated to them, and was not satisfied that the report amounted to fresh evidence or information entitling him to depart from the guidance in TG.
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In respect of the appellant’s submission that his wife did not have the freedom to walk the streets of Kabul unless she was covered as she would otherwise be automatically identified as a Hindu and targeted, the judge quoted from paragraphs 92 and 93 of TG and noted that the appellant’s wife did not fall within the “single women” group referred to in the Country Guidance decision. Having acknowledged that the appellant’s wife was unable to find employment as a Hindu woman in Afghanistan, and accepting that women in general are discriminated against, the judge did not find that the discrimination identified by the appellant and his wife amounted to persecution for the purposes of the Refugee Convention.
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The judge then considered the appellant’s evidence in respect of the assault by the soldier on the coach, noting that there was no mention of this incident in the appellant’s Screening Interview, and concluded that the appellant had fabricated this incident as he would otherwise have mentioned it in his Screening Interview.
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The judge considered whether the appellant’s children would be able to receive an education in Afghanistan and quoted from paragraph 94 of TG. At [36] the judge noted that the funds used by the appellant to bring his family to the UK would have comfortably secured a private education for his children and observed that the appellant had been in employment with sufficient funds to pay for accommodation, provide for his family and to save a substantial sum of money. Given that the appellant had been employed for 12 years without experiencing any discrimination the judge found that he would be able to find and obtain employment in Kabul which would allow him to finance his children’s education. The judge was not therefore satisfied that the appellant’s children would face such serious discrimination in their education so as to amount to persecution.
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The judge accepted that the appellant’s son had been struck by a stone on the way home from school, and that the appellant had worked exceedingly hard and in difficult for circumstances to provide for his family and to save his income in order to find a better life outside Afghanistan. The judge did not accept the appellant’s claim that he and his family would be without accommodation given his evidence that the Sikh and Hindu populations are continuing to dwindle.
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While the judge accepted that the appellant and his family had faced some discrimination in the past, he was not satisfied that they had been specifically targeted, other than one isolated incident involving his son. Applying the guidance in TG, the judge concluded that neither the appellant nor his family held a well-founded fear of persecution.
The challenge to the First-tier Tribunal’s decision
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The grounds of appeal, as amplified by Ms Harvey in her skeleton argument and in her oral submissions, challenge the judge’s decision on 3 bases. It is first submitted that the judge misdirected himself in his application of TG to the appellant’s wife. In TG the Tribunal indicated that the HJ (Iran) issue in respect of Sikh or Hindu women had not been adequately developed by the parties. The judge merely noted that the appellant’s wife was not a single Hindu woman and therefore had the protection of her husband. There was however no finding of fact as to why the appellant’s wife did not leave her home unaccompanied and unveiled, and no assessment as to whether she modified her behaviour in order to avoid ill-treatment on account of her religion or sex. The 2nd ground contends that, in rejecting the appellant’s account of the attack on the coach as a fabrication, the judge failed to appreciate the limited purpose of the Screening Interview and that he was not consequently entitled to draw an adverse inference based on the appellant’s failure to mention this attack at his Screening Interview. The 3rd ground contends that the judge failed to undertake a lawful assessment of the cumulative effect of the discrimination faced by...
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