Upper Tribunal (Immigration and asylum chamber), 2016-06-06, AA/07441/2014
| Jurisdiction | UK Non-devolved |
| Date | 06 June 2016 |
| Published date | 06 June 2017 |
| Hearing Date | 15 December 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/07441/2014 |
Appeal Number: AA/07441/2014
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07441/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 15th December 2015 |
On 6th June 2016 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN
Between
AN
(ANONYMITY ORDER MADE)
Appellant
And
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Blair of Counsel instructed by Coventry Law Centre.
For the Respondent: Mr Walker, Senior Home Office Presenting Officer
DECISION AND REASONS
1 This is an appeal against the decision of Judge of the First‑tier Tribunal Robertson dated 1 May 2015, in which the Judge dismissed the Appellant’s appeal against the Respondent’s decision of 10 September 2014 to refuse to vary his leave to remain, and to make a decision to remove the Appellant under section 47 Immigration, Asylum and Nationality Act 2006. The nature of the Appellant’s challenge to that decision is such that it is necessary to consider the Appellant’s earlier immigration history in some detail.
2 The Appellant was born on 6 September 1995 in Afghanistan. He left Afghanistan in around March 2009, and arrived in the UK on the 29 September 2009, and claimed asylum on 4 November 2009, on which date a screening interview took place. He was then 14 years old. A witness statement and SEF form were completed for the Appellant on 1 December 2009, and he had a child SEF interview on 2 March 2010.
3 The Respondent refused asylum 18 March 2010, but granted the Appellant discretionary leave to remain to 6 March 2013, by which time the Appellant would have been 17 ½, in accordance with the Respondent’s relevant policy regarding unaccompanied asylum seeking children.
4 The Appellant claims to be from the Wardak province of Afghanistan, and that the Taliban stored weapons in the basement of the Appellant’s home. They would generally come at night to collect them, and return them in the morning. On one occasion when the Appellant was about 13, the Taliban were taking tea at the Appellant’s house. The Appellant had refused to fetch a spitting dish for them, and one Taliban had stabbed him in the right thigh, requiring medical treatment. On an occasion in the early part of 2009, Afghan authorities attended at the home, confiscated the weapons, and beat and arrested his father. The Taliban attended at the family home later that night, and upon finding that the weapons had been confiscated by the state authorities, said that it must have been either the Appellant’s father or the Appellant who had informed the authorities, and they threatened to come back. The Appellant, his mother and younger sister travelled to the Appellant’s maternal uncle’s house in Kabul (which the Appellant had visited several times before).
5 The Appellant therefore claimed to fear harm from the Taliban, on the grounds that they perceived the Appellant to have informed on them, and from the Afghan authorities, on the basis that the family had assisted the Taliban.
6 The Appellant appealed against the refusal of asylum to the FtT, that appeal being heard by Judge of the First‑tier Tribunal Andrew. In a determination dated 29th of April 2010, the Judge dismissed the appeal. The Judge did not find the Appellant’s account credible, for reasons including those discussed at paragraph 20(h), (i), (m), and (n) of her decisions, as discussed at para 30 of the present Judge’s decision. Those reasons were, in summary:
(h) if the Taliban were in the Appellant’s village ‘day and night’, there was no credible reason why they would return their weapons to the Appellant’s parents’ home during the day;
(i) it was more likely that the Taliban would need their weapons during the day than the night;
(m) the Appellant had given inconsistent evidence as to the presence of Taliban and Afghan government authorities in the village;
(n) the Appellant’s evidence that the Afghan authorities went to his maternal uncle’s house in Kabul looking for the Appellant’s mother (or alternatively, looking for the Appellant’s mother, and the Appellant, and his sister), was not credible; the Afghan authorities would have no reason to contact them, having confiscated the weapons and detained his father; this part of his account had been invented.
7 Judge Andrew also found at paragraph 22 of her decision: “I found on the evidence before me that the Appellant’s mother and sister and uncle are currently residing in Afghanistan, in Kabul. I find that there is no evidence that the Appellant would be targeted by the Taliban or the authorities in Afghanistan.”
8 No further appeal was brought against that decision.
9 On 4 March 2013, the Appellant made an application for further leave to remain in the UK. The evidence relied upon in support of that application is set out at paragraph 67 of the subsequent decision of the Respondent refusing further leave, dated 10 September 2014. It included a number of letters from the British Red Cross relating to the Appellant’s attempts to trace his family, and evidence of the Appellant’s private life in the UK.
10 The Respondent refused to vary the Appellant’s leave in its decision of 10 September 2014.
11 The Appellant pursued his appeal to the first‑tier Tribunal, his hearing coming before Judge Robertson at Sheldon Court on 21 April 2014. I note here the case as advanced by the Appellant at First tier. A skeleton argument relied upon by Miss Hobbs of Council appearing for the Appellant set out at paragraphs 1‑8 the nature of the Appellant’s original claim for protection, and the history of the appeal. At paragraph 9 it was argued that internal relocation to Kabul would be unduly harsh on the basis of various security incidents occurring there; because the Appellant had never lived there, had no links there, and had no relatives to return to. At paragraph 10 it was argued that the Appellant was not able to seek the protection of the state in Afghanistan due to the history of tribal and political instability as well as the frail security situation that exists there. Articles 2 and 3 ECHR were relied upon for the above reasons and at paragraph 12 onwards, submissions were made in relation to the Appellant’s private life in the United Kingdom. At paragraph 18 an argument was advanced that under Article 15 (c) of the Qualification Directive the Appellant would face a real risk of serious harm if returned to Afghanistan as he would not be seen as an ordinary citizen, but one who is likely to have certain attributes and benefits of having lived in Europe, placing him at serious risk of harm.
12 In her decision of 1 May 2015 the Judge correctly directed herself that the earlier determination would represent the starting point in the assessment of the Appellant’s claim (Devaseelan [2002] UKIAT 00702). The Judge noted at [29] the existence of a scarring report from a Dr Chandler in relation to the Appellant which post-dated Judge Andrew’s decision, and which stated that a scar to the Appellant’s right thigh was highly consistent with a stab wound. The Judge directed herself that his task was to “reassess credibility on all the evidence in the round in light of this report and not simply to rely on the report as confirming that the Appellant’s account was true” (paragraph 29). She noted that the report related to a single injury only, not a number of injuries, and that ‘highly consist’ category was defined as “... the lesion could have been caused by the trauma described, and there are few other possible causes.”
13 At [30] the Judge gave her assessment of the credibility of the Appellant’s account. At [30I] the Judge noted differences in the Appellant’s account of the stabbing incident, as given in his first witness statement, second witness statement, and his account given the Dr Chandler; and held that in any event it was not plausible that the Appellant would openly defy a group of Taliban men when he was aware that they were dangerous.
14 At [30II] the Judge referred to the findings at paras 20(h) and (i) of Judge Andrew’s decision regarding the plausibility of why the Taliban would need to leave their weapons at the Appellant’s house during the day; acknowledged that there was some evidence to suggest that Taliban fought at night, but held that the evidence did not negate the finding of Judge Andrew that there was also likely to be fighting during the day.
15 At [30VI] the Judge referred to Judge Andrew’s finding at her para 20(n) regarding discrepancies and implausibilities in the Appellant’s account of the Afghan authorities visiting the material uncle’s house in Kabul; noted that in evidence before her, the Appellant shifted his evidence during the hearing about that this matter, and held that there was nothing before her that would lead her to differ from the conclusion reached by Judge...
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