ON APPEAL FROM THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER
AA/04811/2013,  UKAITUR AA048112013
Strand, London, WC2A 2LL
B e f o r e :
SENIOR PRESIDENT OF TRIBUNALS
LORD JUSTICE UNDERHILL
| AM (Afghanistan)
|- and -
|Secretary of State for the Home Department
- and –
Mr David Blundell (instructed by Government Legal Department) for the Respondent and the Intervenor
Hearing date: 17 May 2017
Crown Copyright ©
Sir Ernest Ryder, Senior President:
a. As a refugee under the 1951 Geneva Convention Relating to the Status of Refugees as applied by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which are incorporated into the Immigration Rules by rule 334:
"334. An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;
(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and
(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group. " (emphasis added)"
b. As a person in respect of whom there is a limited right to protection on humanitarian grounds as described in paragraph 339C of the Immigration Rules:
"339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:
(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;
(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; (emphasis added) and
(iv) they are not excluded from a grant of humanitarian protection.
339CA. For the purposes of paragraph 339C, serious harm consists of:
(i) the death penalty or execution;
(ii) unlawful killing;
(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or
(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
Rule 351 adds the following (so far as is relevant to children and young people):
"…account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of their situation. … Close attention should be given to the welfare of the child at all times."
c. As a person whose article 3 ECHR rights are under threat.
a. The parties were represented;
b. The proceedings were translated for the appellant by an interpreter; and
c. The documents which the judge records in his determination to have been "fully taken into account" by him "included":
i. The appellant's witness statement;
ii. An expert's country report by Mr Peter Marsden ['the Marsden report']; and
iii. An expert's psychological report by Mr RA Sellwood ['the Sellwood report'].
"I have also seen that there is a psychological report repeated for the appellant…This was not drawn to my attention until after the hearing. I note that the appellant has some learning difficulties but I found him to be a willing witness and able to answer the questions put to him without any apparent difficulty"
"77. Because [AM] has moderate learning difficulties I would expect him to experience significant difficulties accurately recalling questions and answers during interviews and court hearings. These difficulties were evident when he tried to recall details for me and when trying to complete some of the tests. These tasks were largely visual and aided by demonstration. Interviews and hearings present more difficulties for [AM] because the content is more abstract and verbal.
78. For these reasons, I do not consider [AM] is able to give evidence by answering questions in court although I think he can do so in the form of a witness statement where he has more time for information to be recalled and clarified.
79. Without prejudice to my firm view that [AM] should not give oral evidence I consider that additional arrangements should be made should the court decide that he be required to give oral evidence. [AM] has moderate learning difficulties with some intellectual skills significantly weaker than those of others of his age. In view of this, I recommend the following arrangements to be made:
a. Informal court dress for advocates and judge
b. Informal venue for the hearing
c. Informal seating arrangements i.e. round tables or other seating that appears less confrontational and less adversarial
d. Exclusion of members of the public when [AM] gives evidence
e. Restriction of people present in the courtroom when [AM] gives evidence, to legal representatives, judge, court clerk, and, where he requests one, a nominated person to personally support him
f. Questions asked by both parties to be open ended where possible and broken down so that each question is simple and self-contained
g. Points to be raised during cross-examination to be identified by the judge."
a. There were "several inconsistencies" in the appellant's account;
b. The appellant provided "very little detail" in his witness statements as to why he believed he would be at risk;
c. In reference to the expert report by Mr Marsden: "There is no reason given why the appellant should not return as an adult to the area where his relatives are.";
d. The appellant was unable to recall simple questions about his previous life, such as how often he charged his mobile phone. "…I am surprised that he could not answer a simple question concerning a common occurrence – unless he was not being truthful.";
e. The appellant suggested that he had walked home from the hospital, but having hardly ever left his house, he would not have known the route;
f. The appellant had managed to ring his uncle after escaping from the Taliban, yet he had not charged his phone in several days;
g. The appellant had passed through Austria yet not claimed refugee status – this demonstrated that his aim was not to claim refugee status but to enter the UK;
h. The appellant's trip to the UK was arranged at surprisingly short notice; and
i. The appellant failed to demonstrate that the risks he faced in Afghanistan were particular to his own circumstances.
The merits of the appeal and remittal to the FtT:
a. the FtT failed properly to take into account the appellant's age, vulnerability and learning disability in making adverse credibility findings, in rejecting his account of past events because of alleged inconsistency and implausibility and in dismissing the asylum claim on that basis;
b. no consideration was given to whether or not oral evidence was necessary and on what issues so as to enable a fair hearing and any prejudicial consequences of oral evidence in accordance with Rule 14 of the FtT Rules, the PD at  to  and the Guidance Note at  (see below and in the Annex to this judgment).
a. ?the FtT rejected the asylum claim on adverse credibility grounds before considering the objective country evidence (contrary to the well established principle that credibility should be made on the basis of a holistic assessment): it is an error of approach to come to a negative assessment of credibility and then ask whether that assessment is displaced by other material Mibanga v Secretary of State for the Home Department  EWCA Civ 367,  INLR 377 at  to ;
b. the FtT failed to direct itself and/or to take into account the Marsden report which provided evidence that supported and/or was capable of supporting the appellant's account of past events and identified objective indicators of risk on return to Afghanistan based inter alia on the appellant's age and vulnerability and his link to the Taliban through his father which may have been sufficient to establish his claims;
c. the FtT failed to have regard to the obligation to give precedence and greater weight to objective evidence and indicators of risk rather than personal credibility in light of the appellant's age, vulnerability and learning disability.
a. ?given the gravity of the consequences of a decision on asylum and the accepted inherent difficulties in establishing the facts of the claim as well as future risks, there is a lower standard of proof, expressed as 'a reasonable chance', 'substantial grounds for thinking' or 'a serious possibility';
b. ?while an assessment of personal credibility may be a critical aspect of some claims, particularly in the absence of independent supporting evidence, it is not an end in itself or a substitute for the application of the criteria for refugee status which must be holistically assessed;
c. the findings of medical experts must be treated as part of the holistic assessment: they are not to be treated as an 'add-on' and rejected as a result of an adverse credibility assessment or finding made prior to and without regard to the medical evidence;
d. ?expert medical evidence can be critical in providing explanation for difficulties in giving a coherent and consistent account of past events and for identifying any relevant safeguards required to meet vulnerabilities that can lead to disadvantage in the determination process, for example, in the ability to give oral testimony and under what conditions (see the Guidance Note below and JL (medical reports – credibility) (China)  UKUT 00145 (IAC), at  to );
e. ?an appellant's account of his or her fears and the assessment of an appellant's credibility must also be judged in the context of the known objective circumstances and practices of the state in question and a failure to do so can constitute an error of law; and
f. ?in making asylum decisions, the highest standards of procedural fairness are required.
24. The FtT has a broad power to admit evidence which by rule 14(2)(a) of the FtT Rules includes evidence that would not "be admissible in a civil trial in the United Kingdom". Accordingly, strict rules of evidence do not apply (see, by analogy with the FtT Tax Chamber: Revenue and Customs Commissioners v Atlantic Electronics Ltd  EWCA Civ 651,  CP Rep 14 per Ryder LJ at  to  as applied by the UT in Belgravia Trading Co Ltd v Commissioners of Her Majesty's Revenue and Customs  UKFTT 031 (TC) at ).
"(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes –
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as is practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as is compatible with proper consideration of the issues.
(3) The Tribunal must seek to give effect to the overriding objective when it –
(a) exercises any power under these Rules; or
(b) interprets any rule or practice direction.
(4) Parties must –
(a) help the Tribunal to further the overriding objective; and
(b) co-operate with the Tribunal generally."
(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
(2) The Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may –
(d) permit or require a party or other person to provide documents, information, evidence or submissions to the Tribunal or a party;
(f) hold a hearing to consider any matter, including a case management issue;
(g) decide the form of any hearing;
A party may be represented by any person not prohibited from representing by section 84 of the 1999 Act.
(1) Without restriction on the general powers in rule 4 (case management powers), the Tribunal may give directions as to –
(a) Issues on which it requires evidence or submissions;
(b) the nature of the evidence or submissions it requires;
(c) whether the parties are permitted or required to provide expert evidence;
(d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular tissue or generally;
(e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given-
(i) orally at a hearing; or
(ii) by witness statement or written submissions; and
(f) the time at which any evidence or submissions are to be provided.
(2) The Tribunal may admit evidence whether or not –
(a) the evidence would be admissible in a civil trial in the United Kingdom; or
(b) subject to section 85A(4) of the 2002 Act, the evidence was available to the decision maker.
(3) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath or affirmation, and may administer an oath or affirmation for that purpose."
a. the early identification of issues of vulnerability is encouraged, if at all possible, before any substantive hearing through the use of a CMRH or pre-hearing review (Guidance  and );
b. a person who is incapacitated or vulnerable will only need to attend as a witness to give oral evidence where the tribunal determines that "the evidence is necessary to enable the fair hearing of the case and their welfare would not be prejudiced by doing so" (PD  and Guidance  and );
c. where an incapacitated or vulnerable person does give oral evidence, detailed provision is to be made to ensure their welfare is protected before and during the hearing (PD  and  and Guidance );
d. it is necessary to give special consideration to all of the personal circumstances of an incapacitated or vulnerable person in assessing their evidence (Guidance [10.2] to ); and
e. relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A  to ).
"13. The weight to be placed upon factors of vulnerability may differ depending on the matter under appeal, the burden and standard of proof and whether the individual is a witness or an appellant.
14. Consider the evidence, allowing for possible different degrees of understanding by witnesses and appellant compared to those [who] are not vulnerable, in the context of evidence from others associated with the appellant and the background evidence before you. Where there were clear discrepancies in the oral evidence, consider the extent to which the age, vulnerability or sensitivity of the witness was an element of that discrepancy or lack of clarity.
15. The decision should record whether the Tribunal has concluded the appellant (or a witness) is a child, vulnerable or sensitive, the effect the Tribunal considered the identified vulnerability had in assessing the evidence before it and this whether the Tribunal was satisfied whether the appellant had established his or her case to the relevant standard of proof. In asylum appeals, weight should be given to objective indications of risk rather than necessarily to a state of mind."
"26. A second error we discern consists in the judge's treatment of the appellant's vulnerability (the appellant's ground 3). It is clear from her determination that despite disbelieving much of the appellant's evidence including the account she gave of her psychological problems (the judge placed particular emphasis on the appellant's ability to perform well in her studies) the judge was prepared to accept she was a vulnerable person. To be specific, she appeared to accept that the appellant had been the victim of physical abuse at the hands of her former boyfriend in the UK ; and, although rejecting the reasons given, accepted that "[i]t may well be the appellant has certain mental health issues". Given that the judge described the respondent's reasons (as set out in the preceding paragraph) as "cogent" and that they included reliance on inconsistencies, it was of particular importance to see what findings, if any, the judge made about the possible relevance to these of the appellant being a vulnerable person. In the case of a vulnerable person, it is incumbent on a Tribunal judge to apply the guidance given in the Joint Presidential Guidance Note No 2 2010, Child, Vulnerable adult and sensitive appellant guidance…[the UT then set our paras 14 and 15 referred to above].
27. Applying this guidance would have entailed the judge asking herself whether any of the inconsistencies in the appellant's account (as given in her asylum interview) identified by the respondent in the reasons for refusal – and described by the judge as being "cogent" – could be explained by her being a vulnerable person. This the judge did not do."
a. 'The UNHCR Guidelines' on International Protection: Child Asylum Claims under Articles 1A(2) and 1(F) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees;
b. Article 4(3) of Directive 2004/83/EC [the Qualification Directive];
c. Every Child Matters – Change for Children (Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, November 2009);
d. Paragraphs 350 to 395 of the Immigration Rules and the Secretary of State's Asylum Policy Guidance (Processing children's asylum claims, 12 July 2016); and
e. Equal Treatment Benchbook, Ch 5, Judicial College, 2015
Lord Justice Underhill:
Lord Justice Gross: