Upper Tribunal (Immigration and asylum chamber), 2016-01-25, AA/11632/2014
| Jurisdiction | UK Non-devolved |
| Date | 25 January 2016 |
| Published date | 26 September 2016 |
| Hearing Date | 12 January 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | AA/11632/2014 |
Appeal Number: AA/11632/2014
IAC-AH-DN/lem-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11632/2014
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 12 January 2016 |
On 25 January 2016 |
|
|
|
Before
DEPUTY UPPER TRIBUNAL JUDGE MONSON
Between
b ka (afghanistan)
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr K Smyth, Solicitor, Kesar & Co Solicitors
For the Respondent: Miss E Savage, Specialist Appeals Team
DECISION AND REASONS
-
Both parties appeal from the decision of the First-tier Tribunal (Judge Oliver sitting at Hatton Cross on 28 April 2015) whereby he dismissed the appellant’s appeal on asylum and humanitarian protection grounds, but allowed his appeal under Article 3 ECHR on the ground that he was at risk of serious ill-treatment if returned to Kabul. The First-tier Tribunal made an anonymity direction in favour of the appellant, and I consider it is appropriate that the appellant continues to be accorded anonymity for these proceedings in the Upper Tribunal.
-
The background to this case is that the appellant is an Afghan national with an assessed date of birth of 1 August 1996. He claimed asylum in the UK on 12 September 2012. His claim was refused on 22 April 2013 but he was granted discretionary leave to remain as a minor until 1 February 2014. The appellant pursued an upgrade appeal, arguing that he should have been recognised as a refugee. This ground of appeal was dismissed, but his appeal was allowed to the limited extent that the decision was not in accordance with the law as the Home Office had not made any effort to trace the appellant’s family.
The Claim
-
The Appellant’s claim was that he originated from Baghlan Province. His mother remained in Afghanistan with his 3 year old sister and 2 year old brother. He had not been able to establish contact with them since leaving Afghanistan one year ago. His reason for fleeing Afghanistan was that his father was a policeman, who had been murdered by the Taliban. This had happened last year (2011). A few days after his father’s funeral, a group of men came to the family home looking for him. His mother told him to run to the bazaar, and she came to find him a few hours later. She said they were the Taliban and as she could not protect him from them, she had decided that he should go abroad. His mother took him to Kabul, leaving his younger brother and sister at home alone. In Kabul she arranged for an agent to take him to the UK, and he travelled via Pakistan, Iran and Turkey.
The Decision of the First-tier Tribunal in September 2013
-
In his decision dated 5 September 2013, Judge Vaudin d’Imécourt found that the appellant suffered from a congenital hearing defect which made him very vulnerable and as having probably caused him to have educational problems. The evidence showed that he was a young man with complex speech, language and communication difficulties. He was currently with a foster family and it was clear that although his social communication skills were very well developed and he was able to interact appropriately with his peers and teachers, he was nonetheless to a great extent dependent on others for his wellbeing and general welfare. He would not be able to lead a totally independent life at the moment. For example, he was incapable of caring for himself by way of cooking and making decisions with regards to his wellbeing. His self help skills were very limited. Cooking was the most obvious area where the appellant needed extra support.
-
When the appeal first came before him on 5 June 2013, he had raised as a clear issue his serious concern with regards to the lack of effort made by his solicitors to substantiate his account of his father being in the police and being killed in consequence. When the case resumed before him on 4 September, no effort had been made at all to “trace” the appellant’s account of his father having been in the police force and being killed by the Taliban. The judge was satisfied to a very high degree of probability that there would have been a record kept of deaths of police officers serving in the Baghlan area, particularly if it had occurred in the circumstances alleged by the appellant. When Mr Smyth was quizzed about the matter, he accepted that, in accordance with his client’s instructions, no tracing effort had been made to verify the appellant’s account.
-
Although he suffered from a degree of vulnerability, the judge found him to be sufficiently mature enough to be able to adhere to an account that his father was in the police force and killed by the Taliban as the basis of his claim. He was also just as capable of having made that up, if prompted to do so. The appellant was certainly perceived by his family to be sufficiently mature to make his way from Afghanistan to Europe, a journey which they must have been aware would take a considerable period of time. Despite his vulnerabilities, he was able to do that successfully.
-
The judge was entirely satisfied that the appellant still had family living in the Baghlan area, which included his mother, his brother and sister and more likely his father, and if not, his stepfather. He was also satisfied that the appellant had at least one grandparent presently living in Kabul.
-
It was entirely possible that the appellant had not had communication with his family since his arrival in the United Kingdom. Nevertheless, this did not mean that the appellant had no family or relative abroad to whom he could turn to for support. His solicitors had made no effort to trace his family in Kabul or his family in the Baghlan area. They were perfectly able to do so but it would appear that they have been instructed not to do so. At paragraph [66] the judge held that the appellant was a minor and a vulnerable individual who would not be able to survive in Afghanistan on his own and that he would not be able to relocate on his own in Afghanistan:
“Nevertheless, on the evidence that I have heard in this case I was also entirely satisfied the appellant has family support both in Kabul and in his home area.”
-
The judge reiterated this finding at paragraph [69]. He added that these people could be contacted on his behalf by his solicitors and by the respondent at his request if he gave them the necessary information.
-
At paragraph [74] he found that the Secretary of State had failed in her tracing duty, but he also wished to underline the fact that the appellant and his solicitors had failed to assist the Secretary of State in carrying out that duty. He was satisfied the appellant was aware that his family remained in Afghanistan and that he had given the correct address for his family, but no effort had been made by them to trace the family. The solicitors acting on behalf of the appellant were quite capable of writing to the family and seeking out their assistance in this case but had failed to do so as well. It seemed to him that this was on the appellant’s instructions.
The Decision of the Upper Tribunal in December 2013
-
The appellant appealed to the Upper Tribunal (“UT”) against this decision, and his appeal came before a panel of three UT judges sitting at the Royal Courts of Justice on 12 November 2013. The panel was chaired by Lord Matthews.
-
In a determination running to fifteen pages, the UT gave extensive reasons for dismissing the appellant’s appeal against the decision of the First-tier Tribunal.
-
The ground of appeal which is of relevance to the current appeal was the appellant’s asserted status as “an unattended child”. Counsel’s contention on behalf of the appellant was that, since he was not in contact with his family at the date of the hearing, and since he would be at risk as a vulnerable minor on his own in Afghanistan, the only conclusion open to the judge was that the appellant had made out his entitlement to international protection.
-
Mr Deller, who appeared on behalf of the Secretary of State, rejected the proposition that the appellant was to be treated as an unattended child merely because he had not in fact maintained contact. The finding that there were family members in Kabul and Baghlan defeated any suggestion that he had a well-founded fear of persecution on return to Afghanistan as an unattended child.
-
The UT agreed with Mr Deller. They held that there was really no evidence that the family were uncontactable. While it was not for the respondent to shuffle off her responsibilities to endeavour to trace a family by referring the child to the Red Cross, nonetheless it was for the appellant to make out his case. He had not made out a case that his family were not contactable. On the contrary, he obviously felt able to instruct a friend to make contact with them....
To continue reading
Request your trial