Upper Tribunal (Immigration and asylum chamber), 2021-11-17, LP/00287/2020
| Jurisdiction | UK Non-devolved |
| Date | 17 November 2021 |
| Published date | 07 December 2021 |
| Hearing Date | 28 October 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | LP/00287/2020 |
Appeal Number: PA/50199/2019
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: LP/00287/2020
[PA/50199/2019]
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 28 October 2021 |
On 17 November 2021 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
IO
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr K Khashy, Hoole & Co Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Afghanistan who was born on 1 January 1994.
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The appellant arrived in the United Kingdom clandestinely on 24 November 2018. On 3 December 2018 he claimed asylum. The basis of his claim is that, as a result of an accident in which he blew out candles at the local mosque where he was praying during Ramadan, the mosque burnt down. He was accused by the local mullah and villagers of deliberately doing so. He claimed that the local villagers, led by the mullah, attacked his mother and set fire to their home when a sister was injured, although he initially thought she had been killed. He claimed that he had been called an “enemy of Islam” and un-Islamic. He feared that he would be seriously harmed or killed and so he left Afghanistan. He claimed that after he left Afghanistan, his family (mother, sister, brother and his uncle’s family) left their village and moved to Kabul. The appellant claimed that he was wanted by the Afghan authorities as a complaint had been made to the local police and a summons issued against him. He claimed to fear that on return he was at risk from the Taliban and other religious extremists and was wanted by the Afghan authorities.
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On 21 November 2019, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
The Appeal to the First-tier Tribunal
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The appellant appealed to the First-tier Tribunal. In a determination dated 17 February 2021, Judge Rhys-Davies dismissed the appellant’s appeal on all grounds.
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First, the judge accepted the appellant’s account concerning the burning down of the mosque in his village and that he had been accused by the mullah and village chiefs of having deliberately done so. The judge also accepted that the summons, relied upon by the appellant, was genuine as a result of an expert report by Dr Giustozzi. The judge accepted that the appellant was at real risk of persecution for his perceived anti-Islamic conduct if he returned to his home village.
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Secondly, however, the judge found that the appellant could safely and reasonably relocate to Kabul. The judge accepted that the appellant’s family had moved to Kabul as a result of the events. However, the judge did not accept that the appellant had lost contact with his family (as he claimed) or that the mullahs (and other villagers) had pursued the appellant’s family to Kabul causing them (as he claimed) to relocate within the city two or three times. Further, the judge did not accept that the authorities had, or would, pursue the appellant in Kabul because, when Dr Giustozzi’s researcher visited the local police station, no record of the summons had been found in the police files although the summons had been confirmed to be genuine. As a consequence, the judge found that the appellant would not be at real risk of persecution or serious harm in Kabul.
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Thirdly, applying the relevant country guidance decision in AS (Safety of Kabul) Afghanistan CG [2020] UKUT 00130 (IAC), the judge concluded that it would be reasonable for the appellant to relocate to Kabul given his circumstances, including that he had some mental health issues, but he would have a family network there to support him.
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As a consequence, the judge dismissed the appellant’s appeal on asylum grounds.
The Appeal to the Upper Tribunal
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The appellant sought permission to appeal to the Upper Tribunal on three grounds. First, the judge had applied too high a burden of proof in determining whether the appellant would be at real risk on return in Kabul given the existence of the police summons. Secondly, the judge had failed properly to take into account the accepted past persecution in determining whether there was a future risk to the appellant in Kabul. Thirdly, the judge applied too high a burden of proof in relation to internal relocation and in determining whether it would be reasonable to expect the appellant to relocate to Kabul.
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On 5 March 2021, the First-tier Tribunal (Judge Adio) granted the appellant permission to appeal.
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The appeal was listed for hearing at the Cardiff Civil Justice Centre on 28 October 2021. The appellant was represented by Mr Khashy and the respondent by Mr Bates.
The Issues
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At the hearing, Mr Khashy relied upon the grounds and also adopted a skeleton argument drafted by Counsel (Mr Paul Draycott) filed with the UT on the day of the hearing. Mr Khashy developed the grounds and submissions made in the skeleton argument in his oral submissions.
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Mr Bates also made oral submissions in response seeking to uphold the judge’s decision.
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Although the situation in Afghanistan, with the take-over of the country by the Taliban, has changed since the judge’s decision, those post-hearing/decision country changes are not relevant to whether the judge erred in law in assessing the appellant’s claim at the date of the hearing. They will only become relevant if an error of law is found and the decision is being re-made on the basis of the (then) current circumstances in Afghanistan or if a fresh claim is made to the Secretary of State by the appellant.
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The following points were identified in the submissions:
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The judge’s finding that the appellant is at real risk of persecution in his home area is accepted.
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The issue is whether the judge erred in law in finding that the appellant could safely and reasonably internally relocate to Kabul.
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In that regard, no challenge is made to the judge’s reasons and findings at paras 84–88 that the appellant has not lost contact with his family in Kabul and that the authorities and local villagers have not, in fact, pursued his family to Kabul causing them to relocate two or three times.
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In finding that the appellant could safely relocate to Kabul the judge, it is argued by the appellant, fell into error for two reasons:
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the judge failed properly to apply Art 4(4) of the Qualification Directive (Council Directive 2004/83/EC) (the “QD”) by failing to find that there was a real risk of serious harm or persecution in the future as a result of the acceptance by the judge that the appellant had been subject to past persecution in his home area (“Article 4(4) QD”);
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in concluding that the evidence did not establish that the appellant would become known to those he feared in Kabul, the judge failed to take into account evidence from Dr Giustozzi set out in the earlier country guidance decision of NM (Christian converts) Afghanistan CG [2009] UKAIT 0045 that in order for the appellant to obtain work or accommodation it was likely that checks would be made upon his background which would lead to the risk that he could be pursued to Kabul (“NM/Dr Giustozzi’s evidence”);
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relying upon HJ (Iran) v SSHD [2010] UKSC 31, the appellant would be at real risk of persecution or serious harm in Kabul because he could not be expected to lie as to his background and, as a result, he would be at risk in Kabul when that was revealed (“HJ(Iran)”).
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Finally, the judge failed properly to have full regard to the appellant’s circumstances in applying AS and concluding that he could reasonably relocate to Kabul, in particular failing to have regard to evidence concerning the appellant’s mental health (the “IR and Reasonableness”).
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Discussion
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I will take each of points 4(a)-(c) and 5 set out above in turn.
Article 4(4) QD
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Art 4(4) of the Qualification Directive provides as follows:
“The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated”.
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That provision has been transposed into UK law in para 339K...
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