United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/03168 /2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On the 29 th April 2019	On the 16 th May 2019

 

 

Before

 

UPPER TRIBUNAL JUDGE REEDS

 

Between

 

N O

(Anonymity direction made)

 

 

AND

Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

 

Respondent

 

 

Representation :

 

For the Appellant: Ms E. Fitzsimmons, Counsel instructed on behalf of the Appellant

For the Respondent: Mr E. Tufan, Senior Presenting Officer

 

 

DECISION AND REASONS

 

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

1.              The appellant is a national of Afghanistan. He appeals with permission against the decision of First-tier Tribunal ("FtTJ"), promulgated on the 9 ^th October 2018 dismissing his appeal against the decision to refuse his protection and human rights claim.

 

2.              The appellant's history is set out in the decision letter of 19 February 2018 and summarised in the decision of the FtTJ at paragraphs 6 - 9. The appellant arrived in the United Kingdom on 5 September 2015 and made a claim for asylum on that date. It is said that he left Afghanistan in approximately April/May 2015, having spent time in Turkey before travelling on foot to Bulgaria where he stayed for about five days. He travelled via Serbia and Hungary before arriving in Italy where he was caught on the border and fingerprinted. He then left the country by travelling to France and lived in Calais before travelling to the United Kingdom.

 

3.              Upon arrival he provided a screening interview and later provided a statement of evidence (SEF statement). He further underwent an age assessment in August 2016, which concluded that his date of birth should be set as 1 January 2000. He was therefore a minor on arrival.

 

4.              The basis of his claim related to his fear of the Taliban and that members of his family were in the national army and that this resulted in adverse attention from the Taliban. He made reference to an incident in the village where the house was hit by bullets. His father was asked by the Taliban to send the appellant for "Jihad" and it was decided to send the appellant out of the reach of the Taliban and therefore he left Afghanistan with the assistance of an agent.

 

5.              In a decision letter dated the 19 February 2018, the respondent refused his claim for asylum and humanitarian protection. Whilst his nationality was accepted as was his age, the respondent made as a decision not to grant him leave as an unaccompanied child because he was 17 ½ years of age at the date of the decision. In respect of his claim, the respondent accepted that the recruitment of children did occur and that they had a presence in the province where the appellant originated from. However, it was concluded that the appellant had given inconsistent evidence concerning the interest in him by the Taliban. The respondent considered that he could return safely to Kabul and could reasonably be expected to return there. Furthermore, there was no breach of Article 15 (c) (applying the decision in AK (Article 15 (c) Afghanistan CG [2012] UKUT 163.

 

6.              The appellant sought to appeal that decision and his appeal was heard in September 2018. In a decision promulgated on 9 October 2018, the FtTJ dismissed the appeal having concluded that the appellant had not given a credible or consistent account as to his fear of the Taliban in his home area and would not be at risk from them. The judge also found that there were no grounds for a grant of humanitarian protection based on the argument that there was indiscriminate violence to the level to reach the appropriate threshold in the province from which the appellant originated. As the appellant could return to his home area, where the judge found he had remaining relatives, no assessment was made as to relocation to Kabul.

 

7.              Following the dismissal of his appeal, grounds of appeal were issued for permission to appeal but on 31 May 2017 the First-tier Tribunal refused permission. On renewal, the application for permission was granted by Upper Tribunal Judge McWilliam on the 28 ^th December 2018 for the following reasons:

 

"It is arguable that Professor Katona at para 8.4 of the report assessed what is capable of amounting to a "clinically sufficient explanation" as distinct from expressing his opinion about causation. It is arguable the judge therefore erred when concluding at [42] that he "has exceeded the bounds of his clinical expertise." There was merit in the grounds insofar as they relate to the judge's assessment of the medical evidence (grounds one and two). I am persuaded that it is arguable that the judge did not have proper regard to the evidence of the social worker and housing adviser (ground four). There is less merit in the remaining grounds as stand-alone grounds, however, permission is granted on all grounds."

 

 

8.              It is as a result of that grant of permission that the appeal comes before the Upper Tribunal. The grounds advanced by the appellant are those originally provided, and Ms Fitzsimmons, Counsel on behalf of the appellant, and who appeared before the FtTJ relies upon the grounds which she had drafted. She supplemented them with oral submissions which essentially comprised of the written grounds.

 

9.              Mr Tufan and behalf of the respondent relied upon the Rule 24 response dated 14 ^th January 2019 in which it was stated that the judge directed himself appropriately and that the challenge to the decision was no more than a disagreement with a reasoned decision. In his oral submissions, Mr Tufan submitted that contrary to the grounds, the weight to be attached to the medical evidence was a matter for the judge and that it was open to the judge to criticise the report at paragraphs 42 - 44 and the judge properly gave reasons as to why little weight was given to the experts view as to causation of the appellant's PTSD. He further submitted that the judge did consider his vulnerability as evidenced by paragraph 29. As to the risk of suicide, the judge's conclusions were made out; it was not mentioned in the social worker's report and therefore he could not satisfy the threshold for breach of Article 3. In his submission he conceded that internal relocation to Kabul was not considered although he recognised that the respondent had proceeded on the basis that he would be returned to Kabul. However, he submitted, he would not be at risk in Kabul and thus it was not material to the outcome.

 

10.          At the conclusion of the hearing I reserved my decision which I now give.

 

 

Decision on the error of law:

 

11.          Having had the submissions of the advocates and in the light of the issues raised in the papers before the Tribunal, I am satisfied that the decision of the FtTJ demonstrates the making of an error on a point of law. I shall set out my reasons for reaching that conclusion.

 

12.          I find no material error of law that relates to ground 2 in respect of the issue of risk of suicide. It was open to the judge to reach the conclusion at [58] that there was no evidence of previous threats other than what the appellant had told the psychiatrist. Contrary to the grounds, the judge did accept what the appellant had told the psychiatrist but went on to consider the risk of suicide as a stand-alone Article 3 risk in the context of the decision in J v SSHD and Y (Sri Lanka). The conclusion reached at [62] was that the psychiatrist had accepted at face value what the appellant told him, without referring to the other health professionals or social workers and without carrying out any tests to objectively quantify any risk of this occurring. In addition, the judge observed that no account of protective factors (such as religion) had been considered and that he did not been established that there was a current risk on the basis of the opinion which did not consider risks and protective factors. In particular the effective means on the part of the removing state and the protective factor of family members.

 

13.          The grounds at paragraph 12 misconstrue the judge's findings at [62]. Where the judge made reference to the psychiatrists report not referring to "other health professionals who assessed the appellant" the judge was referring to this solely in the context of the issue of risk of suicide and not in relation to the report as a whole. The report clearly sets out the psychiatrist had considered the letter from the paediatrician and evidence in the social worker and housing officer. That was not in dispute. However, as a judge stated the other professionals involved did not make mention of concerns in this area (see [44]).

 

14.          Notwithstanding my assessment of that issue, I am satisfied that the judge fell into error when considering the medical evidence overall. The judge considered the psychiatric report at [42-44]. Ms Fitzsimmons submitted that the report not been challenged by the respondent but that the judge considered that the expert had "exceeded the basis of his clinical expertise" when stating his opinion at paragraph 8.4 that the appellants PTSD been caused by his traumatic experiences in Afghanistan and on the journey to the UK. The judge went on to state "while he might well have diagnosed PTSD, no expert can deduce from that what might have caused the PTSD". The judge considered that this was not a matter for the medical expert and that he had strayed into conclusions as to credibility. At [43] the judge had recorded that they had been a large number of traumatic events during the appellant's journey to the United Kingdom and that this had not been referred to in the conclusions reached at paragraph 8.4. Ms Fitzsimmons submits that at paragraph 8.4 the psychiatrist did consider the traumatic events and the psychiatrist was aware of the adverse credibility assessment reached by the respondent but based his conclusions on an objective clinical observation. Whilst Mr Tufan submits the weight given to an expert report is a matter for the judge concerned and that it was open to the judge to give little weight to the report, I accept the submission made by Ms Fitzsimmons. Reading paragraph 8.4, the psychiatrist considered the causation and diagnosis made of PTSD. I observed that the community paediatrician who also had seen the appellant earlier had formed an opinion that the appellant did have symptoms associated with PTSD and a further witnesses called on behalf of the appellant provided evidence as to his presentation and his vulnerabilities as viewed by them in the United Kingdom. I am satisfied that the psychiatrist did consider whether PTSD had been caused by his experiences in Afghanistan and also other traumatic events which included family separation and stress of his immigration circumstances and the journey to United Kingdom. However, having considered those issues, the psychiatrist went on to state that those stresses did not provide a clinically sufficient explanation for what he described as the "core PTSD symptoms" (see 8.4). The psychiatrist and set out why the appellant met the appropriate diagnostic criteria. That diagnosis was not made on the appellant's evidence alone but on the clinical observations and also based on the evidence of those who had known the appellant in United Kingdom based on his presentation to them. Consequently whilst the judge considered the psychiatrist had not made reference to other traumatic experiences (that is his journey) that is not made out and I therefore accept the submission made by Ms Fitzsimmons that the conclusion finally reached that the little weight should be placed on the psychiatric opinion and evidence overall was flawed.

15.          As to credibility, the judge properly referred to the appellant as a vulnerable witness and considered whether his age, vulnerability and or sensitivity was an element in any inconsistencies in the evidence (see paragraph 29). However, there is no reference in the assessment of credibility of the evidence of the two witnesses who gave evidence on his behalf, both of whom had experience of the appellant when living in United Kingdom in a professional capacity as a social worker and housing officer. They gave evidence concerning his cognitive difficulties and his vulnerability. This evidence had relevance when seen alongside the evidence of the psychiatrist and the issue of return. I do not accept the submission made by Mr Tufan that the reference at paragraph 16 was sufficient- the judge was not analysing the evidence in the assessment of credibility or in the assessment of the medical evidence. I do not ignore that the judge did make what could be seen as adverse credibility points taken from inconsistent evidence given in his screening interview relating to family members and their profile but I accept the submission made that this did not take into account the evidence of the psychiatrist and the social worker as to his presentation, his cognitive difficulties and whether he could provide a consistent account as a result of those issues.

 

 

16.          I have also considered the argument set out in the grounds at 6-8, that the judge was wrong to follow the current country guidance without giving sufficient regard to the further evidence about the claimed deterioration of the situation in Afghanistan and in particular, the home area of the appellant in Laghman Province.

 

17.          It had been argued before the FtTJ that there would be an Article 15 (c) risk in Laghman Province (see skeleton argument at paragraphs [49-57]). This was based on a deterioration in the conditions in Afghanistan as set out in the European Asylum Support Office report "Country Guidance; Afghanistan -Guidance Note and Common Analysis (June 2018) ("EASO"). The Tribunal was therefore invited to depart from the CG decision in AK in view of the increasing levels of violence and insurgency in the province and find that the threshold was met. In the alternative it was submitted that on the facts of the appellant's case, in the light of his vulnerability ( his cognitive impairment and diagnosis of PTSD) he would succeed by reason of special factors particular to his personal circumstances ( see the "sliding scale" approach in Diakite v Comissaire general aux refugies et aux apatrides (CJEU -C-285/12) at [32] and Elgafaji v Staatssecretaris van Justite [2009] ECR 1-921 at [39]40]).

 

18.          Mr Tufan submitted that whilst the respondent accepted there was a Taliban presence in the area, it had been open to the judge to reach the conclusion that there was no Article 15 (c) risk in the area.

 

19.          The FtTJ considered this issue at paragraphs 53-54 of the decision. The judge cited the relevant case law and cited AK observing in that case that the level of indiscriminate violence was not at the level to reach the threshold of risk and that recent country material in the form of the Home office Country of origin report dated June 2016 at 2.3.17 examined trends in violence between 2010-2016 and found an increase over the years but that the decision in AK whilst considering the situation in 2011, nevertheless concluded on the evidence that there was not such a high level of violence as to amount to a real risk justifying humanitarian protection. The judge went on to state "AK has been recently re-affirmed by AS (Safety in Kabul) Afghanistan CG [2018] UKUT 118(IAC). There is nothing in the country evidence which causes me to differ from its conclusions. While I note the view of the EASO report I find that AS (Afghanistan) is so recent an authority, and that it considered evidence over the same timescale as the EASO report, and therefore I should not differ from its conclusions."

 

20.          At the date of the decision of the First-tier Tribunal there were two country guidance decisions of potential relevance to this appeal. The first was AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC) in which it was held that the level of indiscriminate violence in the country, even in the worst affected provinces, was not such that Article 15 (c) of the Qualification Directive was generally engaged. The second was AS (Safety of Kabul) Afghanistan CG [2018] UKUT 118 (IAC) in which the Tribunal re-evaluated the security situation in Kabul, and considered the city's reasonableness as a place of potential internal relocation. The Tribunal held that although the level of violence had increased it had not yet reached Article 15(c) levels; nor could it be said that in general, it would be unduly harsh for a healthy adult male to relocate to Kabul, although each case required consideration of the individual's personal circumstances.

 

21.          As set out in the Senior President's Practice Statement, a country guidance case is authoritative in any subsequent appeal so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. In SG (Iraq) [2012] EWCA Civ 940 , the Court of Appeal, having considered the purpose of country guidance determinations, said that decision makers and Tribunal judges were required to take them into account and to follow them unless there were strong grounds supported by cogent evidence to justify their not doing so [47].

 

22.          Judges should therefore only depart from country guidance cases when there are cogent reasons for doing so. However, the more time that passes after the issue of a country guidance decision, the more likely it is that there may need to be a consideration of how subsequent events have affected the conclusions reached and the guidance given in that decision. AK was issued in 2012 and the situation in Afghanistan has been volatile. The Tribunal in AK commented on the possibility of the situation there deteriorating once the Allied forces had left and at [248] said that while the guidance given would continue to have validity for the immediate future there would be a need to keep the situation in the country under careful review over the next few years.

 

23.          In this appeal there was further evidence which arguably shows a significant deterioration in the security situation and should have been taken into account by the judge when considering its impact on the guidance in AK. The assessment of the security situation in Laghman province in May/June 2018 in the EASO Country Guidance Report is as follows:

 

 

" Looking at the indicators, it can be concluded that the indiscriminate violence taking place in the province of Laghman reaches such a high level that minimum individual elements are required to show substantial grounds for believing that a civilian, returned to the province, would face a real risk of serious harm in the meaning of article 15(c) QD."

 

24.           In the EASO COI of May 2018, it is recorded that there was a strong presence of insurgent groups, especially the Taliban, in some parts of Laghman. Clashes between the Taliban and ISKP were reported. Military operations are being conducted in the province including airstrikes resulted in the deaths of insurgents, there are also clashes between insurgents and security forces and attacks by insurgent groups have been on the rise in recent years. It recorded that leading causes for civilian casualties were ground engagements, IED's and targeted /deliberate killings. Further impact on civilian life included temporarily closed healthcare facilities, impeded humanitarian access reportedly due to fighting and illegal checkpoints, large numbers of IDP's and returnees to the province and lack of adequate shelter.

 

25.          Whilst the judge made reference to the report at [35] and that EASO considered that there was indiscriminate violence across most of Afghanistan, the judge also considered it was in the context of AS (Afghanistan) as being so recent that there should be no departure from AK. T In my view, the judge needed to give reasons why this further evidence did not affect that guidance. At [58] of AS, the panel recognised the weight and reliability of the EASO reports, and the judge did not give weight to the evidence about events since the guidance in AK or give sufficient reasons by reference to the material as to why there should be no departure from AK.

 

26.          In the alternative, I accept the submission made that the judge also did not have regard to the appellant's medical conditions and cognitive impairment when considering whether he would be at risk of indiscriminate violence. The medical report had not been challenged by the respondent and notwithstanding the assessment of the FtTJ, the appellant has a number of individual characteristics, and in particular his mental health and general vulnerability, which puts him at greater risk than other members of the population. This has not formed part of the assessment.

 

27.          Whilst the FtTJ made reference to the decision in AK, the judge did not look beyond the general guidance given. In particular the Tribunal made no reference to the acknowledgement in AK that travel between Kabul and smaller towns and villages may be dangerous, with indiscriminate dangers such as pressure mines, Taliban presence and/or other insurgents. In AK the Tribunal held that such dangers would have to be evaluated on a case-by-case basis. As it had been accepted that the Taliban were active in the appellant's home area, it was necessary for some analysis of whether it would be safe for the appellant to try and make the journey from Kabul ( where he would be returned to) to his home area, taking into account his vulnerabilities.

 

28.          Mr Tufan conceded that the appellant would be returned to Kabul and that the judge had not gone on to consider his ability to relocate and whether it would be unduly harsh for him to do so. I am therefore satisfied that in the light of the above matters that the judge made an error on a point of law that would be material to the outcome.

 

29.          For those reasons, I am satisfied that the errors identified in the grounds are made out. As those errors go to findings of fact and analysis of evidence, I set aside the decision and do not preserve any of the findings.

 

30.          As to remaking the decision, given the nature of the errors I accept the submission made by Ms Fitzsimmons and Mr Tufan that further evidence will be required and further clear findings made, including updating evidence relevant to the appellant's circumstances. Both advocates submit that the appeal should be remitted to the First-tier Tribunal.

 

31.          I have given careful consideration to the Joint Practice Statement of the First-tier Tribunal and Upper Tribunal concerning the disposal of appeals in this Tribunal. That reads as follows:
"[7.2] The Upper Tribunal is likely on each such occasion to proceed to re-make the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:-
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the First-tier Tribunal; or
(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal."

32.          Thus, I have reached the conclusion that it is appropriate to remit it to the First-tier Tribunal for a fresh decision on all matters. In the light of the diagnosis set out in the report, consideration will be be given to the guidance given in AM (Afghanistan) v SSHD [2017] EWCA Civ 1123 at the hearing.

 

 

 

Notice of Decision

 

 

33.          The decision of the First-tier Tribunal involved the making of an error on a point of law and is therefore set aside. It is remitted to the First-tier Tribunal for a fresh hearing.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

 

Signed Upper Tribunal Judge Reeds

 

 

Date 14/5/2019

 

Upper Tribunal Judge Reeds