England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Perkins
AA 06858 2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 May 2014

Lord Justice Moore-Bick :

1. This is an appeal against a decision of the Upper Tribunal dismissing the appellant's appeal against the Secretary of State's rejection of his claim for asylum and humanitarian protection.
2. The appellant entered this country in July 2009 and claimed asylum shortly afterwards. He was aged about 16 at the time and was granted discretionary leave to remain until 26^th November 2010 when it was thought that he would be about 17½. On 23^rd November 2010 he made an application for further leave to remain, but on 23^rd May 2011 his application was refused. The appellant appealed to the First-tier Tribunal which dismissed his appeal. He obtained permission to appeal to the Upper Tribunal, which, in a decision dated 28^th February 2013, dismissed his appeal.
3. The appellant's case before the Upper Tribunal was that his father had been a commander in Hizb-e-Islami, an insurgent organisation similar to the Taliban. Following the murder of the appellant's uncle (his father's brother) his father had killed the person responsible in revenge. Some months later while the appellant was at a wedding he had been told that his home had been attacked and his father killed. He returned home to find his father lying dead inside the house and the bodies of two other men lying outside. One of them was the murderer's son. The appellant was told that he was also being sought and was advised to leave at once. The appellant, his mother and his 11-year old brother went to his aunt's house in another province, but after a few days his aunt said that she could not protect him and gave him enough money to leave the country. He said he had not spoken to his mother or his brother since that time and had lost their telephone number. He believed that if he were to return to Afghanistan he would be tortured by those who had killed his father. He claimed to be at risk from the government because of his father's association with Hizb-e-Islami, although he himself had not been a member of the organisation.
4. The tribunal did not accept his account. It found it difficult to accept that the appellant was unable to contact his family, but accepted that there was no evidence to disprove his assertion. In paragraphs 93 – 101 of its decision it made the following findings:

"93. . . . I accept that the appellant did flee Afghanistan after his father had been killed in a revenge attack . . . and that the incident prompted the appellant's mother, with other family support, to send the appellant to the United Kingdom in the hope that he would be able to provide economically for the family.

94. I do not accept that the appellant went in fear of his life. There is little evidence of blood feuds operating in society in Afghanistan . . . I do not accept that there would be strong pressure on the appellant to avenge his father's death . . .

95. I see no reason at all for the appellant to be at risk in the event of his return. His father is dead. I do not believe that he would be at risk now for something that happened some years ago. . . .

96. I do not accept that there is a real risk of the appellant being recruited now to join Hizbe Islami or any other organisation or being under pressure to do the same. Again I have not found background material suggesting there is a pattern of people being recruited against their will to follow their father's footstep [sic]. . . .

97. . . . I am wholly unpersuaded that there is a general risk to people such as the appellant which this appellant needs to be returned. [sic]

98. . . . I found nothing to persuade me that the guidance given in PM & Others (Kabul - Hizbe Islami) Afghanistan CG [2007] UKAIT 00089 that "there is no satisfactory evidence that a person who has been associated in the past with Hizbe Islami will always be regarded as such" has changed.

99. . . . I do not think this is a case that there is a risk to the appellant being identified in Kabul as a supporter of Hizbe Islami and then made to do things he does not wish to. Neither do I accept that the appellant is at risk of being made to do things he does not wish to by the government or Hizbe Islami or anyone else.

100. . . . I see no evidence that elevates his father to be of sufficient importance for him to have a general reputation. . . .

101. He is not a refugee and does not need international protection."

5. The appellant applied for permission to appeal to this court on a number of grounds, on two of which he was eventually granted permission to appeal. They were:

(i) that the tribunal had made a finding that he was an economic migrant that was unsupported by the evidence; and

(ii) that in assessing the risk to the appellant on return to Afghanistan the tribunal had failed to have regard to some important aspects of the evidence and had failed to consider the country guidance case of AA (Unattended children) (Afghanistan) CG [2012] UKUT 00016 (IAC).

6. The first ground of appeal rests on what the tribunal said in the last part of the final sentence of paragraph 93 of its decision, namely, that:

"the incident prompted the appellant's mother, with other family support, to send the appellant to the United Kingdom in the hope that he would be able to provide economically for the family." (My emphasis.)

7. Mr. Hawkin submitted that there was no evidence to support a finding that the appellant was an economic migrant. The finding was nothing more than speculation, but it had coloured everything that followed and had led the tribunal to reject the rest of the appellant's account.
8. I am unable to accept that submission for a number of reasons. As Mr. Hawkin accepted, if the tribunal had expressed the view that the appellant was an economic migrant at the end of paragraph 101, there could not possibly have been any ground of complaint. It would have been an inference which the tribunal would have been fully entitled to draw from the facts it had found in the earlier paragraphs. In my view it makes no difference that the conclusion came before the reasons. Mr. Hawkin invited us to conclude that the tribunal had made an unsubstantiated finding on the basis of no evidence at all and had then made findings of fact to fit it by rejecting the appellant's account. That would involve irrationality of a high order and I can see no reason why the tribunal should have behaved in that way. The obvious conclusion is that it stated its conclusion as a matter of inference before going on to explain the basis on which it had been drawn, which is a perfectly satisfactory way in which to make a decision of this kind.
9. Quite apart from that, however, the finding, although one that the tribunal was entitled to make by inference, was unnecessary for its decision. It was for the appellant to satisfy the tribunal that he had a well-founded fear of persecution on return to Afghanistan or that he was at risk of serious ill-treatment. It is clear from the findings to which I have referred that the tribunal did not accept that he was in fear of persecution or that he was at risk of ill-treatment on return. As I have pointed out, the tribunal's findings amply support the inference that the appellant was an economic migrant, but even without that finding his appeal was bound to fail, because he failed to discharge the relatively modest burden of proof that the law imposed on him. Unless one were persuaded that the tribunal inexplicably acted in a wholly irrational manner in making its findings, with the result that they should all be set aside, it is impossible to see how this ground of appeal could succeed. In my view, for the reasons I have given, it cannot.
10. The second ground of appeal concerns the question whether the appellant, although now no longer a minor, would be at risk on return to Kabul because he would be at risk of exploitation in one way or another and has no family who can provide him with support and protection. Mr. Hawkin submitted that in reaching its decision the tribunal failed to take into account some important features of the case, in particular, that the death of the appellant's father had occurred relatively recently, that Hezb-e-Islami remains a potent force in Afghanistan and that the appellant would be at risk from the security forces because of his family background and perceived links to the insurgents. It was also said that the conflict had intensified in recent years and that people were therefore likely to be more inquisitive about the origins of someone they did not know. Some of these factors, including the risk of forced recruitment, had previously been identified in the case of HK & Others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), to which the tribunal did refer. It is in this context that the tribunal is said to have made an error of law in failing to take into account the decision in AA (Unattended children) (Afghanistan).
11. The relevance of AA to this case lies not so much in any legal principle for which it is authority, but in the guidance it affords on the risks facing children, and to a lesser extent young adults (see KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, [2013] 1 WLR 615), if they are returned to Afghanistan without being able to turn to a family for protection and support. In paragraph 92 of its decision in AA the Upper Tribunal said:

"92. But the background evidence demonstrates that unattached children returned to Afghanistan may, depending upon their individual circumstances and the location to which they are returned, be exposed to a risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. . . . "

12. In the present case the tribunal did not refer to AA as such, although it did refer to HK, in which similar findings had been made. However, it did give specific consideration to the risks that this appellant as a young adult might face on return to Kabul, including the risk of being drawn into a blood feud, the risk of being forcibly recruited into Hizb-e-Islami, the risk of being regarded by the authorities as a sympathiser of Hizb-e-Islami, and the risk of being forced into collaboration with government forces. It also took into consideration a report on the risks facing young asylum seekers on return to Afghanistan published by the United Nations High Commissioner for Refugees, to which our attention was drawn.
13. In those circumstances I do not think that the failure to refer to AA was an error of law, but even if it was, it was certainly not material. The tribunal considered the risks that the appellant said he would face on return to Afghanistan and concluded that there was no substance in any of them. It was not suggested that the general level of violence in Afghanistan was such as to engage article 3 of the European Convention on Human Rights. There is no basis for the suggestion that the tribunal failed to consider his case with the degree of care which it called for. The tribunal discussed the evidence at some length before reaching its conclusions. The fact that it expressed its conclusions succinctly is no indication that it had failed to examine the evidence carefully and conscientiously. As the findings above show, the tribunal was satisfied that the appellant was not at risk of ill-treatment in any respect and this ground of appeal must also fail.
14. For those reasons I would dismiss the appeal.

Lord Justice Lewison :

15. I agree.

Master of the Rolls :

16. I also agree.