Upper Tribunal (Immigration and asylum chamber), 2018-07-31, PA/05728/2017
| Jurisdiction | UK Non-devolved |
| Date | 31 July 2018 |
| Published date | 15 August 2018 |
| Hearing Date | 29 June 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/05728/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05728/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 29 June 2018 |
On 31 July 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
MR A S G
Appellant
v
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A. Jones, counsel instructed by Elder Rahimi
For the Respondent: Mr. N. Bramble, Senior Home Office Presenting Officer
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DECISION AND REASONS
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1. This appeal came before me for an error of law hearing on 19 March 2018, when I found an error of law and adjourned the appeal for a resumed hearing. A copy of the decision promulgated on 25 April 2018 is appended.
2. At the hearing before me, counsel for the Appellant served a skeleton argument which had been served the previous day by email (but was not on the Tribunal file). She sought permission to adduce new evidence, which was that the Appellant’s wife is now pregnant with twins and her estimate date of delivery is 17 November 2018. Mr Bramble had no objection. I also had receipt of a skeleton argument drafted by Ms Ahmad for the Respondent. The parties agreed that the issue is internal relocation to Kabul.
3. I heard submissions first from Ms Jones, who drew my attention to the fact that there are some facts which are entirely accepted in relation to this Appellant. She went through the country guidance decision in TG [2015] UKUT 595 (IAC) which states a Sikh or Hindu in Afghanistan does not face a real risk of persecution on the basis of ethnicity or religion and all circumstances need to be considered. She sought to rely on [71], [78]-[80]; [85]-[89], [90] [91]-[92], [94] and [95]; [109]-[111]. The issue of internal relocation is dealt with at [115]-[118] and material to this assessment are gender, family support, financial circumstances; access to accommodation, education and employment and the Upper Tribunal’s conclusions are at [119].
4. She submitted that as with this Appellant, the fourth Appellant in TG is from Jalalabad and the only matter before the Tribunal was relocation. The Upper Tribunal found that he was married with a daughter in secondary education; that there was no real risk of state sponsored persecution but he had no contacts there [133] and found at [136] that it was unreasonable to expect him to relocate.
5. Ms Jones accepted that the starting point following Devaseelan is the first determination, which can be found at Annex H1-12 and is dated 1 March 2007. The Respondent accepts that the Appellant and his wife are from Jalalabad and accepts their ages. She accepted that there are negative credibility findings at [15] onwards. However, the First tier Tribunal accepted that the Appellant was a Sikh living in Jalalabad before he left and that he attended school for 4 years and after that he began working for his father in a shop there. The Judge did not accept the account of leaving Jalalabad, nor that he had returned for a while on his own. At [24] he found the Appellant left for economically motivated reasons given the evidence that the business had deteriorated. Ms Jones submitted that his other findings were based on the country situation and guidance at that time and that things have now moved on.
6. She drew my attention to the psychological report of Rachel Thomas dated 5 July 2017, which was not relied on for credibility but because the conclusions are important in that the Appellant was significantly traumatized with severe symptoms of PTSD which was chronic with post traumatic traits. She submitted that he received some financial support from his brother: [34] of previous Judge’s decision.
7. She submitted that, in a nutshell, it would be unduly harsh to expect the Appellant to internally relocate because:
(i) he was not from Kabul nor was his family. He left Afghanistan from Jalalabad and Kabul is an unknown environment for him and he has no family connections there. The Appellant’s Bundle before the First tier Tribunal contains letters from various relatives and A3 of the Respondent’s bundle sets out details of the UK based relatives and British passports;
(ii) the Appellant had only a limited education as he was at school for 4 years only. His working life was spent entirely in his father’s textile shop or connected to it. The Judge noted that the business had suffered and become a much less reliable source of income;
(iii) the Appellant has been living in the UK since 20 August 2006 and has never had permission to work in that time. Thus the chances of him having any reasonable prospect of establishing a new business are very limited and due to a lack of connections there, to be able to rent premises and provide security and rent; he has no capital (as he has been unable to earn here) and his previous business had deteriorated significantly.
(iv) the Appellant’s mental health needs to be considered as these would impact on his ability to establish a new business and this is unrealistic.
(v) the Appellant is likely to be dependent on the diminishing ability of the gurdwara to provide charity.
(vi) whilst she accepted foetuses at 20 weeks gestation do not have human rights in their own right, the effect of a long awaited pregnancy on the parents is entirely relevant and in her submission it would be unduly harsh for the 38 year old Appellant’s wife pregnant with twins in a first successful pregnancy to relocate to Kabul.
8. Mr Bramble sought to rely on the Respondent’s submissions set out in his colleague’s skeleton argument and did not propose to add to that.
9. I allowed the appeal and announced my decision at the hearing. I now give my reasons.
Findings
10. The Appellant’s case, in essence, is that he is on all fours with the fourth Appellant in TG as he too is from Jalalabad and that, for the reasons outlined at [7] above, it would be unduly harsh or unreasonable to expect him to relocate to Kabul or elsewhere in Afghanistan.
11. The Respondent’s skeleton argument makes the following points:
(i) the Appellant’s account had been disbelieved by the First tier Tribunal who dismissed his appeal in 2007 and this was the starting point and any new evidence which could have been brought to the attention of the Tribunal previously should be treated with the greatest circumspection;
(ii) no weight should be attached to the psychological report given that it was prepared over 11 years after the claimed persecution occurred;
(iii) in respect of the country guidance decision in TG the Appellant could set up his own business on return to Afghanistan with the financial assistance of family members in the UK and there is a Sikh community in Kabul who would be able to assist.
12. Mr Bramble did not seek to make any additional submissions as to the credibility of the Appellant or risk on return to the Appellant and his wife.
13. The headnote to TG (Afghan Sikhs Persecuted) CG [2015] UKUT 595 (IAC) provides:
“Risk to followers of the Sikh and Hindu faiths in Afghanistan:
(i) Some members of the Sikh and Hindu communities in Afghanistan continue to suffer harassment at the hands of Muslim zealots.
(ii) Members of the Sikh and Hindu communities in Afghanistan do 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 ethnic or religious identity, per se. Neither can it be said that the cumulative impact of discrimination suffered by the Sikh and Hindu communities in general reaches the threshold of persecution.
(iii) A consideration of whether an individual member of the Sikh and Hindu communities is at risk real of persecution upon return to Afghanistan is fact-sensitive. All the relevant circumstances must be considered but careful attention should be paid to the following:
a. women are particularly vulnerable in the absence of appropriate protection from a male member of the family;
b. likely financial circumstances and ability to access basic accommodation bearing in mind
- Muslims are generally unlikely to employ a member of the Sikh and Hindu communities
- such individuals may face difficulties (including threats, extortion, seizure of land and acts of violence) in retaining property and / or pursuing their remaining traditional pursuit, that of a shopkeeper / trader
- the traditional source of support for such individuals, the Gurdwara is much less able to provide adequate support;
c. the level of religious devotion and the practical accessibility to a suitable place of religious worship in light of declining numbers and the evidence that some have been subjected to harm and threats to harm whilst accessing the Gurdwara;
d. access to appropriate education for children in light of discrimination against Sikh and Hindu children and the shortage of adequate education facilities for them.
(iv) Although it appears there is a willingness at governmental level to provide protection, it is not established on the evidence that at a local level the police are willing, even if able, to provide the necessary level of protection required in Refugee Convention/Qualification Directive terms, to those members of the Sikh and Hindu communities who experience serious...
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