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Cite as: [2014] EWCA Civ 735

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		Neutral Citation Number: [2014] EWCA Civ 735
		Case No: C5/2013/3696

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
(DEPUTY UPPER TRIBUNAL JUDGE SHAERF)

Royal Courts of Justice
Strand, London, WC2A 2LL

7th May 2014

B e f o r e :

LORD JUSTICE SULLIVAN
____________________

	ZN (AFGHANISTAN)	Appellant/Claimant
	-v-
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent/Defendant

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(DAR Transcript of
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MS B ASANOVIC (instructed by Pickup & Scott) appeared on behalf of the Appellant
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HTML VERSION OF JUDGMENT
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LORD JUSTICE SULLIVAN: This is a renewed application for permission to appeal against a determination dated 21st October 2013 of the Upper Tribunal (Deputy Upper Tribunal Judge Shaerf), dismissing the appellant's appeal on asylum, humanitarian protection and human rights grounds against the respondent's decision to refuse his application for further leave to remain and for asylum and/or humanitarian protection.

The appellant's claim was made nearly five years ago on 15th June 2010. It has had an unfortunate procedural history. The appellant's appeal against the respondent's refusal of his claim was initially dismissed by the First Tier Tribunal in a determination which was promulgated on 11th December 2010. An appeal to the Upper Tribunal was dismissed in 2011, but the Upper Tribunal's determination was set aside in 2013 and the matter was remitted for determination to the Upper Tribunal. It is in these circumstances that the Deputy Upper Tribunal Judge considered the appeal afresh.

This is a second appeal. When refusing permission to appeal on the papers, Sir Stanley Burnton said that the appellant's grounds had not raised any point of principle or practice and had not identified any compelling reason for the Court of Appeal to hear the appeal.

Miss Asanovic's Advocate's Statement does not directly engage with that observation, but in her oral submissions to me she accepted that the grounds of appeal did not raise any point of principle or practice and were very much fact-specific. She contends that there is a compelling reason for the court to hear this second appeal. The compelling reason is the serious nature of the Tribunal's errors, she submits, in respect of its consideration of both Article 8 and the appellant's credibility.

The submission in respect of Article 8 is that there was an absence of findings as to a fundamental matter, namely whether or not there was family life between the appellant and his foster carers. Reference was made to my grant of permission to appeal in respect of the previous Upper Tribunal's determination, but it is important to remember that that determination had simply considered the issue of private life, it had not considered the issue of family life. The contrary is the case in respect of the Deputy Upper Tribunal Judge's determination. In paragraph 66 he set out the basis for the claim as being private life and family life with the appellant's foster carers and their family. The determination deals with private life at paragraph 67. Paragraph 68 describes the extent of family life between the appellant and his foster carers, and in paragraph 69 expressly accepts that the appellant has established a private and family life in the United Kingdom and that his removal would be an interference of such gravity as to engage the operation of Article 8. The Tribunal, however, observed when considering the quality of that family life that the fostering relationship is almost, by definition, a temporary and limited one. There is no conceivable error of law in the proposition that a fostering arrangement is inherently impermanent.

In paragraph 70 the Deputy Upper Tribunal Judge noted Ms Asanovic's acceptance in her submissions before him that the Tribunal would have to assess the nature of the relationship between the appellant and his foster carers by reference to the criteria derived from Kugathas. Ms Asanovic submitted that there had been no Kugathas analysis.

The plain fact of the matter is that the Deputy Upper Tribunal Judge correctly directed himself by reference to Kugathas, and then in the following paragraph observed that the appellant was now in a "leaving care" programme, he was 20 years old, starting to make his way in the world, he had made it clear in his evidence to the Tribunal that he did not need his blood relatives in the United Kingdom because he had friends, and the Tribunal went on to say that inevitably the ties with his foster family, which may have rapidly developed after his reception into their family, will already have attenuated, which process will continue as the appellant continues to establish his own adult life. Although that is criticised as a generalisation, it cannot possibly be said to be erroneous in any way. There really was nothing about this relationship between an adult and his foster carers which raised any particular factor, applying Kugathas principles.

I then turn to the other criticism, that is to say the manner in which the Tribunal assessed the applicant appellant's credibility.

It is said that insufficient account was given of the fact that he was a minor when he left Afghanistan and when he was setting out his claim to the respondent, and the principle of giving a liberal application and the benefit of the doubt to minors was not applied. But again, that submission is contrary to the Deputy Upper Tribunal's Judge approach. In paragraph 63 he made clear that he had taken into account in his credibility findings that the appellant was very young when he left Afghanistan and was aged about 14 at the time of the alleged incidents in Pakistan. The principal reason why the Deputy Upper Tribunal Judge concluded that he could not place much weight on the appellant's account was not simply that he was vague, but that the account had been challenged by the Secretary of State in the refusal letter, and there had been ample opportunity for the appellant to try to trace his relatives to see if his very vague account, which was simply based on what he had been told by his mother, could be firmed up in some way. Although Ms Asanovic submitted that there was evidence about the difficulties of tracing through the Red Cross, the Tribunal did not accept that those difficulties applied with such force in the present case because, as it said in paragraph 60, the appellant had two brothers for whom tracing enquiries could be made, and his evidence was that his brothers, that is to say the ones who were left in Pakistan, would not have left his mother and unmarried sisters to fend for themselves, and, moreover, he had an uncle and a cousin in the United Kingdom. The Tribunal simply was not satisfied that a proper explanation had been given why they were not contacted.

The only remaining point is the submission that the Deputy Upper Tribunal Judge failed to have regard to the expert country report when considering the credibility of the appellant's account.

It is plain that the country report was considered. It is the very first matter that is addressed by the Tribunal in its findings and consideration beginning at paragraph 43 of the determination. Ms Asanovic submits that it was simply considered in relation to the matter of risk, but the determination has to be read as a whole and it is fanciful to suggest that the Tribunal, having set out the expert's findings, then failed to have regard to those when assessing the credibility of the appellant's account.

So far as credibility is concerned, as I have said, the appellant's account was vague in the extreme, effectively accepting that he himself had no personal recollection and he was simply going on what his mother had told him. If the Deputy Upper Tribunal Judge was entitled to be unconvinced as to the reasons for failing to try to see if that very vague account should be substantiated by further information from the appellant's relatives, either the relatives in this country or the relatives left behind in Pakistan, then the Tribunal's approach to the credibility of the appellant's account is readily understandable.

In my judgment, for these reasons, which I have very shortly expressed, even applying a first appeal test, these grounds would have no real prospect of success, but they fall very far short of passing the second appeals test. So for those reasons, and notwithstanding Ms Asanovic's careful submissions, this renewed application for permission to appeal must be refused.