Upper Tribunal (Immigration and asylum chamber), 2017-07-03, PA/06062/2016
| Jurisdiction | UK Non-devolved |
| Date | 03 July 2017 |
| Published date | 25 August 2017 |
| Hearing Date | 30 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/06062/2016 |
Appeal Number: PA060622016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA060622016
THE IMMIGRATION ACTS
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Heard at Bradford |
Decision & Reasons Promulgated |
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On 30 May 2017 |
On 03 July 2017 |
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Before
UPPER TRIBUNAL JUDGE CLIVE LANE
Between
H Y
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Cole
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant, H Y, was born in 1991 and is a male citizen of Afghanistan. He appealed against a decision of the respondent dated 27 May 2016 to refuse his protection claim. The First-tier Tribunal (Judge Kelly), in a decision promulgated on 8 December 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
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Judge Kelly summarised the appellant’s claim as follows:
“5. The appellant’s case, as he presented it at the hearing of his appeal, may conveniently be summarised as follows.
6. Prior to his departure for the United Kingdom in May 2014, the Chief of Staff of the TCC (Mukhtar Ullah) had promised the appellant that he would be given a key position within government upon his return to Afghanistan. Mukhtar Ullah reiterated this during the course of a telephone conversation whilst he was visiting London with Dr Ashraf Ghani, who was by now the President of Afghanistan. The appellant had been too busy to meet with them at the time due to his study commitments in Chester.
7. Upon returning to Afghanistan in September 2016, therefore, the appellant met with Mukhtar Ullah who was now the Chief of Staff to the President. They discussed the terms and conditions of a role within government (that was similar to that which he had formerly held with the TCC) and they agreed that he would commence his new employment upon return from his graduation ceremony in Chester (UK) which was due to take place on 5 November 2015.
8. On the 26 October 2015, the appellant attended his local mosque in Afghanistan with his uncle, Mr M N. Following noon prayers, his uncle informed him that a group of local insurgents were coming for him. Rather than returning to his father’s house, therefore, the appellant went with his wife and children to the home of his uncle in Shahak in order to hide. Shortly afterwards, a group of insurgents attended and surrounded his uncle’s house. His uncle and a group of local Elders acted as intermediaries. The insurgents said they had come for the appellant because they needed him to work for them. They were told they could not enter the house as there were women present. The appellant’s uncle sought to persuade the insurgents that the appellant was not going to work for the government and was thus of no value to them. The insurgents nevertheless insisted that the appellant work for them due to his links to high-ranking government politicians and knowledge of sensitive information. Ultimately, agreement was reached that the insurgents would lift their siege in return for a promise that the appellant would be delivered to them at a later date.
9. The appellant thereafter returned to the home of his father. He remained undetected because he was wearing a burka. Upon being told what had occurred, his father advised him that he had no option but to leave the country. That advice was reinforced when, having explained to Mukhtar Ullah what had occurred earlier that day, he was informed that the government would be unable to provide him with protection outside work. He therefore flew out from Afghanistan on the following day, landing in the UK on the 28th October 2015.
10. It did not occur to the appellant to claim asylum upon arrival at the airport. He did however make a number of enquiries of various solicitors. He eventually found a solicitor in Manchester who put him in touch with the Home Office. This led to the making of an appointment in order to claim asylum on the 3rd December 2015.
11. The appellant has since learnt from his uncle (who remains in Afghanistan) that the insurgents attended at the home of his father a few days after his departure and fired shots. As a result, his parents, his sister, and his brother, have moved to Iran.
12. On return, he fears “persecution from insurgents … because [he] couldn’t survive their torture or I couldn’t work them so I couldn’t survive their torture” [reply to question 110 of AIR].”
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At [37], Judge Kelly found that the appellant had been truthful in relation to the entirety of his account. At [38], he concluded,
“38. At first blush, the respondent’s argument concerning sufficiency of protection is an attractive one. If the President of Afghanistan is unable to provide the appellant with adequate protection then nobody can. However, the appellant does not seek to argue that he would be unsafe during office hours. His argument is that that there would be insufficient protection for him at other times, such as when he was at home or whilst travelling to and from work. I find that argument persuasive given that it was confirmed to the appellant that the security arrangements for government staff would not extend beyond the office door. So far as other law enforcement agencies (such as the police) are concerned, the Mujahideen have already demonstrated their ability to act with impunity within the appellant’s home area. I am therefore satisfied that the appellant would to that extent at risk on return.”
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Judge Kelly rejected the appellant’s claim that he would be at risk elsewhere in Afghanistan:
“39. I am not however satisfied that this risk extends to other areas of Afghanistan. The appellant’s argument to the contrary can be found in paragraph 9 of his witness statement:
“It is not possible for me to return to Afghanistan because I have travelled 114 times to the different provinces. There are 32 different provinces so I have visited them a lot. I would meet with the people, meet with the chief of police, local leaders, ministers etc and so they all know who I am. The insurgents could have been there. They are often just local people. I was also in touch with the local people to help to solve their problems when they contacted the President’s office so they know who I am. I cannot go back to Kabul as that was where I was living before and it other provinces are a lot less secure than Kabul so I have nowhere safe to go.”
40. I reject this argument for the following reasons. Firstly, I have noted the speculation that is inherent in the phrase “insurgents could have been there”. Secondly, whilst I accept that the appellant has travelled extensively throughout Afghanistan this would in turn necessarily have limited the time that he was able to spend in any one place and thus become a familiar face. Thirdly, and in any event, the prospect that local people would remember the appellant following brief visits that were made upwards of 2 ½ years ago seem to me to be so remote that it can safely be discounted. Moreover, my attention has not been directed to any evidence to suggest that there is a network of communication that would enable insurgents in Kabul to identify the fact that the appellant was residing in another area of Afghanistan.”
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Judge Kelly reached his own conclusion regarding the availability of internal flight at [41]:
“41. I therefore turn to consider whether the appellant could reasonably be expected to reside in another area of Afghanistan. I accept that the arrival of a highly educated and to some extent westernised man in a rural community would raise questions about who he was. I also accept that it would be difficult for a man of his background to gain employment in such an area. On the other hand, it appears to me that he would have little difficulty in finding suitable employment in an urban area such as Jalalabad. He would not attract the level of attention in a populous city that might occur in a rural village. He would not be required to be discreet about his political opinions. There would however be no reason for the casual observer to suspect that he had ever worked for central government with its associated risk of coming to the adverse attention of members of the local Mujahidin. I therefore find that the appellant has failed to show that he would be unsafe upon relocation to another city in Afghanistan, or that it would be unreasonable to expect him to do so.”
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Granting permission, Judge Kopieczek wrote:
“I consider it arguable that the First-tier Tribunal Judge erred in law in his consideration of the issue of internal relocation in the light of the appellant’s background and the findings of fact in his favour. Whilst not advanced as an argument in the grounds, there may be something to be said for the proposition that whilst the First-tier Tribunal Judge at [41] considered the appellant would not be required to be discreet about his...
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