Upper Tribunal (Immigration and asylum chamber), 2019-02-25, PA/00150/2018
| Jurisdiction | UK Non-devolved |
| Date | 25 February 2019 |
| Published date | 03 April 2019 |
| Hearing Date | 11 February 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/00150/2018 |
Appeal No: PA/00150/2018
UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00150/2018
THE IMMIGRATION ACTS
|
Heard at: Field House |
Decision and Reasons Promulgated |
|
On: 11 February 2019 |
On: 25 February 2019 |
Before
Deputy Upper Tribunal Judge Mailer
Between
Mr Jawad [H]
anonymity direction NOT made
Appellant
and
secretary of state for the home department
Respondent
Representation
For the Appellant: Ms E Mitchell, counsel, instructed by Sutovic & Hartigan
For the Respondent: Ms K Pal, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant is a national of Afghanistan, born on 1 July 1999. He appeals with permission against the decision of the First-tier Tribunal Judge promulgated on 14 November 2018, dismissing his appeal against the respondent's decision to refuse his application for international protection.
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He found that the appellant's account of having been abducted, driven to the mountains and then after five days required to dig a hole in a mountain with other boys, was false and manufactured solely for the purpose of seeking to procure his desired outcome, that is his continued residence in the UK. He set out his reasons for that finding at [42(iii)]. He dismissed his asylum, humanitarian protection and human rights claims.
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In granting permission to appeal on 10 December 2018, First-tier Tribunal Judge Lambert found that the First-tier Tribunal Judge has arguably fundamentally misunderstood the nature of the appellant's case, thereby attributing inconsistency to his account where there was none, so that the claimed error, if made out, is clearly material to the overall outcome.
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At the commencement of the hearing, Ms Mitchell, who did not represent the appellant before the First-tier Tribunal, produced a statement from Ms Zoe McCallum, who was the counsel who represented the appellant before the First-tier Tribunal. Ms Pal did not object to the production of this statement.
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In her statement, McCallum asserts that the appellant's case has consistently been that he was abducted by Daesh and not the Taliban. The only point on which his understanding of events has altered since arrival in the UK relates to the letter left with the Mullah of his local mosque shortly before he was abducted by Daesh.
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She stated that in the appellant's first witness statement dated 16 November 2015, his evidence was that his father showed him the letter, when he was still a child, and that he understood that it was from Daesh, his subsequent abductors.
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In his substantive interview conducted on 12 July 2017, some 20 months later, the appellant affirmed his understanding that the letter was from Daesh – Q 54. He was asked why he feared that he was at risk from Daesh and the Taliban. He responded that both are the same: “I do not know deep into the politics what is the difference between the two” (Q 122).
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She stated that a copy of the letter was provided to the country expert, Dr Giustozzi for verification through his researcher, Mr Saleem Safi. In his verification report dated 22 January 2018, also before the Tribunal, the letter was identified as emanating from the Taliban and not Daesh. The report of Dr Giustozzi was read to the appellant, who produced a further witness statement dated 21 February 2018. The witness statement recorded that the appellant accepted that he may have confused the Taliban stamp with the black flag of Daesh. It is also reiterated that it was only since the appellant arrived in the UK that he had learned more about the differences between Daesh and the Taliban.
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In adopting the appellant's grounds of appeal Ms Mitchell submitted that there was a fundamental error made by the Tribunal regarding the nature of the appellant's case. His judgment was predicated on a fundamental misunderstanding of his case as put by the appellant in his evidence and by counsel in her written and oral submissions.
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The Tribunal approached the appeal on the basis that the appellant, having previously recounted how he was forcibly recruited by Daesh, was now claiming that he had in fact been abducted by the Taliban [42(iii)(a)]. However, Ms Mitchell submitted that the appellant in fact had made no such claim. His consistent evidence was that he was abducted by Daesh whose members he identified largely on the way they dressed.
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That was the way the case was argued by counsel. Her skeleton argument presented relied expressly on the appellant’s having been taken by Daesh and used for forced labour. Ms Mitchell also referred to the current witness statement of Ms McCallum, where she has confirmed that this was the basis upon which the appellant's case was argued at the time.
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Ms Mitchell referred to Ms Mitchell’s skeleton argument produced before the First-tier Tribunal and which was before the Judge. The skeleton argument set out his case, namely, that he was abducted by Daesh but that he accepted that the threat letter was from the Taliban - paragraphs 5-7 and 24-27.
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Ms Mitchell submitted that the only point on which the appellant's understanding of events has altered since his arrival in the UK related to the letter left with the Mullah of his local mosque shortly before his abduction. He had initially understood the letter to come from Daesh, consistent with the identity of his subsequent abductors, and with what he thought he had recognised as Daesh emblems on the letter itself. This was also referred to in the skeleton at paragraph 23 and the witness statement, at paragraph 1-2.
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However, when a copy of the letter was provided to the country expert it was identified as emanating from the Taliban, as referred to in the skeleton of Ms McCallum at paragraphs 19-21. The appellant explained that his knowledge of the differences between the groups was limited, that he had seen the letter only briefly and that he had likely confused the Taliban stamp with the Daesh flag as stated in the skeleton at paragraph 23.
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Ms Mitchell submitted that despite all of this, the Tribunal proceeded on the basis that the appellant's entire account of his forcible recruitment had shifted. It described his case in respect of Daesh as having “substantially evaporated” [42(iii)(a-b)].
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She submitted that the adverse credibility findings were therefore based in a significant respect on the idea that the appellant had altered his case so as to “dovetail” it with the documentary evidence of the Taliban judgment [42(iii)(a)]. The assessment of the appellant's evidence in respect of the letter itself was thus made against this background.
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Ms Mitchell also contended that Tribunal erred in his approach to the appellant's credibility. In that respect, she submitted that the Tribunal acknowledged that the appellant was a minor at the relevant time which was relevant in the assessment of his credibility. Accordingly, the Judge should have had regard to the relevant paragraphs of the joint Presidential Guidance Note No. 2, and the decision in AM (Afghanistan) [2017] EWCA Civ 1132.
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Furthermore, cases involving children may call for a liberal application of the benefit of the doubt – UNHCR Guidelines on Child Asylum Cases.
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She submitted that the First-tier Judge did not in fact evaluate the appellant’s credibility in accordance with those principles. He adopted a stringent approach which in several respects failed to take into account the totality of the appellant's own evidence. The Tribunal drew an adverse credibility inference from his evidence that, when he was abducted, he was driven for 30 minutes into the mountains and that when he escaped he arrived home after running for 20 minutes and walking for an hour. The Tribunal found this account to be “beyond credence” [12] and [42(d)].
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Ms Mitchell submitted that a child's estimates of time are unlikely to be especially accurate, particularly in cultures that do not attach particular significance to time keeping and in the context of a stressful or traumatic unfolding event. However, no allowance was made for that. Nor did the Tribunal take account of the totality of his evidence, in which he explained that the poor roads contributed to the initial pace of travel and that the vehicle had been stuck in mud for part of the journey time.
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In addition, she submitted that the Tribunal drew adverse inferences from his inability to explain the decisions and actions of adults around him, such as why his father told the police that he was at his aunt's house and why his father directed him to return to the family home to say goodbye to his mother despite the danger involved before fleeing the country.
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The appellant cannot be expected to have known or understood how the police received information relating to groups such as Daesh or why his father made the decisions that he did. To infer that there was no adequate explanation and that his account was unlikely to be true, was inconsistent with the principles relating to the giving of evidence by a child.
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She contended that the Tribunal entirely failed to have regard to his age and hence to the likelihood that he would do as an agent had directed, even when the agent was not physically present. Nor did...
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