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)
DEPUTY UPPER TRIBUNAL JUDGE PLIMMER
AA098552013

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/2017

Sir Terence Etherton MR:

1. This is an appeal from the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("the UT") dismissing the appeal of MK from the decision of the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT") dismissing MK's appeal from the decision of the Secretary of State for the Home Department ("the SoS") to refuse to grant him asylum.
2. The substance of the appeal is that the UT should have recognised that the FTT had failed to address critical elements of MK's appeal from the SoS's decision.

The background facts

3. MK is a male citizen of Afghanistan whose date of birth has been assessed as 1 January 2000.
4. In 2010 his father, a former police officer, was abducted in Afghanistan by members of the Taliban. MK suffered knife injuries during the abduction.
5. MK left Afghanistan in approximately August 2012. He travelled clandestinely through several countries before arriving in the United Kingdom in a lorry on 23 July 2013.
6. On 6 August 2013 MK claimed asylum and had a screening interview. On 17 August 2013 MK's legal representatives submitted a letter which included clarification points from the screening interview.
7. MK's claim for asylum was refused in a Reasons for Refusal letter dated 18 October 2013. He was granted leave to remain until 18 April 2016.
8. MK appealed to the FTT.

The FTT hearing

9. The hearing before the FTT (Judge Doran) took place on 23 June 2014. MK attended the hearing before the FTT but did not give oral evidence on the recommendation of Dr Fairweather of the Tavistock and Portman NHS Foundation Trust. She advised that MK should not give evidence in person for a number of reasons which could lead to a depressive episode or post traumatic stress disorder symptoms to recur as his psychological defence and emotional "numbing" were very fragile. The hearing proceeded, therefore, by way of submissions based on documentation.
10. That documentation included copies of the following documents which set out MK's claim: MK's screening interview, the 17 August 2013 letter from MK's legal representatives, a statement of evidence form (SEF) for self-completion dated 18 September 2013, the Asylum Interview Record conducted with MK dated 26 September 2013, and MK's witness statement dated 17 June 2014 prepared for the purposes of the hearing before the FTT.
11. Paragraph 7 of the Reasons for Refusal Letter summarised MK's statements and evidence in support of his application for asylum. It has not been suggested that the summary was inaccurate or materially incomplete. It stated as follows:

"…7. The following paragraphs are a summary of your statements and evidence in support of your application for asylum. This has been compiled using your asylum screening interview dated 6/8/2013 (SCR), your substantive asylum interview dated 26/9/13 (AIR), your statement of evidence form dated 18/9/13 (SEF), an age assessment from the London Borough of Barnet dated 29/8/2013 (AA) and a statement of amendments dated 17/8/13 (SA). You claim that:

a) You are [MK], an Afghan national born 1/1/2000. You did not attend any formal schooling but have attended your local Madrassa (AIR 8). You are not sure how long you attended the Madrassa as you were too young when you started, however you stated you would go everyday except Fridays and continued attending following an attack on your family about three years ago (approximately September 2010) (AIR 28 & 62). You have never worked (AIR 30).

b) Your immediate family consists of your mother, and your two younger brothers, who to your knowledge still live in Charde, Afghanistan (AIR 9 & SEF). You also have other family living in Afghanistan, such as your maternal uncle's sons and maternal aunt's sons, who live in Kabul and other relatives that live in different parts of Afghanistan (AIR 17-19). You spoke to your mother on arriving in the UK but have since lost her number. You have not attempted to contact her by post (AIR 20-5). Your father was a policeman and your mother was a housewife (SEF & AIR 92).

c) In 2010 two members of the Taliban came to your family home at night and kidnapped your father, you have not seen him since (SEF C1.1 & AIR 48). They had guns and opened fire on your mother (SEF C1.2 & AIR 46). Your mother was attacked and her mouth and cheek was cut with a knife.

d) During the attack you ran after them screaming and you were stabbed in the left arm and right thigh before becoming unconscious (SEF C1.1). You have scars in your shoulder as a result of the attack (AIR 94.)

Alternatively, you were stabbed in the neck, shoulder and thigh (SCR 3.1).

e) Following the attack, you did not visit a doctor or hospital. You used a cream which your neighbour gave you (AIR 51-4). You do not know whether your mother went to the police following the attack and you do not recall seeing any policeman visit your home (AIR 79). After you recovered from your injuries, you continued to attend Madrassa (AIR 61).

f) You believe that you were not taken by the Taliban because you were too young (SEF C1.3). You have received no further contact from the Taliban following this attack (AIR 61).

g) About two years later (approximately August 2012) your mother told you that now you are older it was too dangerous for you to stay and consequently you had to leave. You changed into traditional Afghan clothing and got in a taxi arranged by your mother (SEF C6). You then travelled through unknown countries on foot and in a lorry (SEF A.30 and AIR 68).

h) You fear that if returned the Taliban will kill you because you tried to save your father and because you would not want to go with them (SEF C1.21). You also fear for your younger brother Jahan (SEF C1.5) …"

12. There was before the FTT a witness statement by MK dated 17 June 2014, containing the usual statement of truth. Paragraph 3 included the following statement:

"All I can say is that the older you get the more likely the Taliban will want to recruit you. My mother was afraid that the Taliban would try to recruit me and that is why she sent me away."

13. Counsel for MK before the FTT, Ms Nicola Braganza, who also appeared for MK before us, relied on several documents before the FTT in support of the risks said to be facing MK if he were returned to Afghanistan. These included the UNHCR Eligibility Guidelines for Afghanistan (6.8.2013) ("the UNHCR Guidelines"), the UK Border Agency's Country of Origin Information Report on Afghanistan (15.12.2013, re-issued 8.5.2013), the International Crisis Group's report on "Afghanistan's Insurgency after the Transition" (12.5.2014) and a number of radio reports on violent incidents in Afghanistan involving the Taliban. There may also have been before the FTT a copy of the UK Border Agency's Operational Guidance Note on Afghanistan (June 2013).

The FTT's decision

14. Judge Doran's decision is dated 27 June 2014.
15. Having stated that the circumstances of MK's claim for asylum were set out in paragraph 7 of the Reasons for Refusal Letter, and having set out that paragraph, and the SoS's reasons for refusal, the Judge summarised the submissions of each side.
16. The Judge referred to the submissions of the Presenting Officer for the SoS challenging the credibility of MK's account as to the alleged attack on MK's father and its aftermath and the existence of the alleged risk to MK if returned to Afghanistan, and the SoS's case that, even if there was a well-founded fear that MK would be persecuted locally, he could still relocate to Kabul.
17. As to the submissions of Ms Braganza, having recited her arguments on credibility, the Judge summarised her submissions on risk and relocation as follows:

"17. On the basis that his account was credible Ms Braganza submitted that the appellant would be unable to return to his home village as he would be perceived by the Taliban to be a supporter of the government by virtue of his father's former employment as a policeman. She referred to the UNHCR Eligibility Guidelines for Afghanistan (6^th August 2013) at page 127 of the appellant's bundle which lists the potential 'Risk Profiles' which includes the individuals associated with or perceived as supporters of the government and the international community and also referred to a Radio Free Europe/Radio Liberty Press Report entitled 'Taliban Attacks in Afghanistan killed 10 police' dated the 21^st May 2014 and a similar Report of "Voice of American News" titled 'Taliban Militants Storm Police Station in Eastern Afghanistan' 20^th March 2014 as evidence of part of the Taliban Spring Offensive.

18. In so far as returning the appellant to Kabul was concerned Ms Braganza referred to the fact that there was no evidence that the respondent had complied with her tracing duties despite the appellant's representative's letter of request seeking such information of the 17^th June 2014. She pointed out that the appellant had now been absent from Afghanistan for two years and that if he now flew back to Kabul there will be no one there to look after the appellant as he had now lost contact with his mother and other family in Afghanistan and given his profile and learning difficulties and taking account of the Tribunal findings in relation to unattached children returned to Afghanistan in AA (Unattended Children) Afghanistan CG [2012] UKUT 0016 (IAC) the appeal should be allowed.

18. The Judge then addressed the burden and standard of proof and the credibility of MK's account of what had taken place regarding his father. He observed, on the material before the FTT, that MK is a young man who is naïve and unsophisticated in his understanding of the situation. The Judge found that MK's account was reasonably likely to be true, and accepted that MK's father was kidnapped by members of the Taliban, and MK suffered knife injuries during the course of that abduction in 2010.
19. The FTT considered the decision of HK and Others (Minors – Indiscriminate Violence- Forced Recruitment by Taliban – Contact with Family Members) Afghanistan CG [2010] UKUT 378 (IAC) and in particular the following statement in that case:

"1. Children are not disproportionately affected by the problems and conflict currently being experienced in Afghanistan. Roadside blasts, air-strikes, crossfire, suicide attacks and other war-related incidents do not impact more upon children than upon adult civilians."

2. While forcible recruitment by the Taliban cannot be discounted as a risk, particularly in areas of high militant activity or militant control, evidence is required to show that it is a real risk for the particular child concerned and not a mere possibility."

20. The Judge then expressed his decision on risk as follows:

"30. Ms Braganza suggested that this appellant was of particular concern because of his father's previous role as a policeman and abduction in 2010 and no doubt therefore could be distinguished from the situation outlined in HK and Others. However the United Nations High Commission for Refugees Report "Forced recruitment by the Taliban in Afghanistan: UNHCR's perspective", 10^th July 2012 (page 130-1 of the appellant's bundle) makes reference to two European Asylum Support Office Reports whose conclusion was that forced recruitment by the Taliban was the exception rather than the rule. Given that the evidence indicates that the Taliban had not sought to recruit the appellant to their ranks in the two years between 2010 and 2012 I am not satisfied that it is established that there is a reasonable likelihood that if returned he would be at risk that they would do so in the future."

21. The Judge then considered the argument for MK that, even so, MK could not be returned because he would be returned as an unaccompanied child as he had lost contact with his family and there was no satisfactory evidence to establish that his mother still resided in the village from which he came.
22. Having referred to the case of SHL (Tracing obligation/Trafficking) Afghanistan [2013] UKUT 00312 (IAC) for, among other things, the principle that the onus remained on the appellant to establish a proper foundation for the grant of relief, the Judge said (at para. [35]) that he was not satisfied that MK's mother had in fact moved at all and, even if she had, that her whereabouts were not known; and, in any event, even if she had moved and MK was at any risk in his home village if he were to return, the Judge was not satisfied that MK could not relocate to live with family members in Kabul, despite their circumstances and his age.
23. Having referred to Article 8(1) of the Qualification Directive (Council Directive 2004/83/EC), the Immigration Rules paragraph 339O, R v Home Secretary, ex p. Robinson [1998] QB 929 paragraph 18, Januzi v Home Secretary [2006] UKHL 5 paragraph 20 and AH (Sudan) v Home Secretary [2007] EWCA Civ 297 paragraph 33, the Judge stated his conclusion on re-location in paragraph [37] as follows:

"37. On the basis that I am satisfied that the appellant is able to contact his mother his position was that until he left Afghanistan he had lived with his mother all his life and he has other relatives living in Kabul. Whilst he has only received a basic education through the Madrassa his mother demonstrated that she was able to raise sufficient monies to send him to the UK and thus clearly has access to funds which would assist in any relocation of the family to Kabul which could in any event be further assisted by the family members already living there. I therefore conclude that it would not be unduly harsh to expect the appellant, if necessary, to relocate to Kabul and consider it reasonable to expect him to do so with or without his mother, as I am satisfied he has other family members residing in Kabul."

The appeal to the UT

24. There were four grounds of appeal to the UT, namely there was (1) no finding as to the risk faced by MK on the basis of his father's known position as a police officer and his abduction; (2) no finding or conclusion as to the risk and/or safety faced by MK in Kabul on the basis of his father's known position as a police officer and his abduction; (3) no finding as to the impact of the SoS's failure to trace on the plausibility of MK's evidence as to having lost contact; and (4) no finding as to the weight to be attached to MK's positive credibility findings on the plausibility of MK's evidence as to having lost contact with his family.

The decision of the UT

25. The UT (Deputy Upper Tribunal Judge Plimmer) recorded in her decision dated 18 September 2014 that MK's counsel, Ms Chapman, particularly focused on grounds 1 and 2 of the appeal and contended that the FTT had simply failed to address the submission that MK was at risk by reason of his father's employment as a police officer.
26. The UT said that there had been no error of law by the FTT.
27. The UT said that the FTT clearly understood the basis of MK's claim and, although the FTT could have addressed the risk for MK from the Taliban in more detail, the FTT had provided sufficient reasons for not accepting the submission as to the risk in ground 1 of the appeal (the risk faced by MK due to his father's known position as a police officer and his abduction). The UT said that the FTT had the background evidence in the UNHCR Guidelines clearly in mind when making findings, and the FTT took into account that there were no attempts to recruit MK during the two years after the kidnapping. The UT also observed that it was obvious that there was no attempt to kill MK or any other retaliatory actions.
28. The UT said (at [10]) that

"while the [FTT] could have made it clearer that [MK] was not at risk upon return beyond the issue of forced recruitment, the [FTT] has identified an important factor why [MK] was not reasonably likely to be at risk. Two years had lapsed with no adverse attention coming to [MK] or any other family members. If there was no act of retaliation then is difficult to see why there would be retaliation some four years later …The issue of forced recruitment is likely to have been the focus of the nature of the risk before the [FTT] and probably explains the manner in which the [FTT] addressed the submission on risk in the determination …The main risk to [MK] was therefore properly identified to be forced recruitment, and it is accepted that the [FTT] has addressed this explicitly."

29. The UT said that, since the FTT was entitled to reject the submission that MK was at risk in his home area, she did not need to address the alleged errors of the FTT regarding internal relocation.
30. The UT rejected grounds 3 and 4 of the appeal. The UT said that the FTT, in reaching its decision on whether MK was no longer in touch with his mother, had given clear reasons for accepting some parts of MK's account and not accepting others.

Appeal to the CA

31. Permission to appeal to the Court of Appeal was refused on the papers by Elias LJ. On an oral renewal of the application for permission to appeal, Tomlinson J granted permission on the ground that "it is arguable that"

"the gravamen of [MK's] story … was that it was in 2012 that his mother indicated that it was time for him to leave Afghanistan on the basis that now that he was growing older he was more likely to be at risk of retaliation than he would have been as a young child of ten … [and accordingly] the circumstance that the applicant had not encountered any adverse consequences between 2010 and 2012 would not of itself be indicative of the extent to which the risk was made out for the future".

32. Tomlinson J said that he gave permission "with some reluctance and a belief that I may have been over-generous to the applicant".
33. We gave permission for MK's grounds of appeal to be amended. In their amended form, they are as follows:

"a) The Appellant's account was that as he was growing older he was more likely to be at risk of retaliation than he would have been as a very young child of ten. That the Appellant had not encountered any adverse consequences between 2010 and 2012 would not of itself be indicative of the extent to which the risk was made out for the future. The Upper Tribunal relied on the finding that during the relevant period of two years no adverse attention had apparently come either to the applicant or to any other family members. In assessing the likelihood of either retaliatory measures or forcible recruitment by the Taliban coming to pass, it was legitimate to enquire whether anything untoward had occurred in the time since the father had been kidnapped, and the First-Tier Tribunal had concluded that it had not and that that was of relevance to both of the areas of concern. In assessing the likelihood of either retaliatory measures or forcible recruitment by the Taliban coming to pass, the First Tier Tribunal and the Upper Tribunal erred having regard to the age of the applicant and the possible consequences in the event of his forcible repatriation.

b) There was no finding as to the risk on return for the Appellant because of his father's known position as a police officer and his father's abduction.

c) There was no finding or conclusion as to the risk and/or safety faced by the Appellant in Kabul on the basis of his father's known position as a police officer and his abduction. Internal flight cannot be separated from the reasons for the risk on return to the home area."

34. The grounds state that those matters required express findings separate from the findings concerning purely MK's risk of being forcibly recruited.
35. Ms Braganza did not proceed with an application, on behalf of MK, to adduce new evidence in the form of a report dated 24 April 2016 by Dr Antonio Giustozzi, a senior visiting professor at the War Studies Department at King's College, London.

Discussion

36. I reject the core submission of Ms Braganza that the FTT did not address the issue of risk to MK, if he returned to Afghanistan, of retaliation by the Taliban because of his father's known position as a police officer and his father's abduction.
37. As the UT observed, the FTT could have addressed that risk in more detail, as distinct from the risk of attempted recruitment by the Taliban. It is clear, however, as the UT also observed, that the FTT did not accept that that fear was well founded and there were justifiable grounds for that conclusion.
38. The FTT was well aware that the risk of retaliation formed part of MK's complaint. That is apparent from the extracts from paragraph 7 of the Reasons for Refusal Letter quoted in the FTT's decision, which pulled together MK's case from its various sources. It is also apparent from paragraph 17 of the FTT's decision, which referred to Ms Braganza's submission that MK would be perceived by the Taliban to be a supporter of the government by virtue of his father's former employment as a policeman, and which referred to the "risk profiles" in the UNHCR Guidelines as including individuals associated with or perceived as supporters of the government.
39. In paragraph 30 of the FTT's decision, reference is again made to the general allegation that MK was "of particular concern because of his father's previous role as a policeman and abduction in 2010". While it is correct that the FTT continued in that paragraph with specific reference to recruitment, the observation in the last sentence that the Taliban had not sought to recruit MK to their ranks in the two years between 2010 and 2012 and the conclusion that the Judge was "not satisfied that there is a reasonable likelihood that if returned he would be at risk" are to be seen as directed to the general risk described at the beginning of the paragraph.
40. There is no doubt that the UT was correct to explain the absence of a more detailed response in the FTT's decision to the allegation of a risk of retaliation as due to the low profile of that allegation at the hearing before the FTT. Ms Braganza explained to us that, from her perspective on behalf of MK, the primary focus had been on the issue of MK's credibility. If his credibility was accepted, then her case was that the risk to him would automatically follow on the basis of the documentary evidence before the FTT.
41. The witness statement of MK, the material specifically mentioned in Ms Braganza's skeleton argument for the hearing before the FTT, and the overwhelming majority of the other material which was before the FTT and on which MK relied as evidence of risk, insofar as it was of any relevance at all to MK's position, was directed to forced child recruitment.
42. There was, in fact, no material before the FTT which specifically and clearly indicated that MK was at risk of physical retaliation because he was the young son of a policeman, who had been abducted by the Taliban. The nearest to such evidence is to be found under the heading "Potential Risk Profiles" in the UNHCR Guidelines. There it is said that "Afghan security forces, particularly the [Afghan National Police] are increasingly the object of targeted campaigns", "[Afghan Local Police] members have also been targeted" and "family members of ANSF members" have been injured in attacks by anti-government elements. Ms Braganza candidly and fairly admitted that she did not know whether MK's father was a member of the Afghan National Police or the Afghan Local Police. MK's evidence throughout was simply that his father was a police officer. She did not provide Judge Doran with the definition of "ANSF" or with background material on ANSF. The FTT was justified in the circumstances in assessing that the parts of the UNHCR Guidelines to which he was referred did not make out MK's case based on risk of retaliation.
43. None of the other material refers to the risk to family members of a policeman.
44. Moreover, as Mr Richard O'Brien, counsel for the SoS observed, MK's mother, an adult member of the family, had not been targeted since her husband's abduction.
45. In any event, there is no proper basis for challenging the findings of the FTT that, even if MK was at risk on return to his home village, it would be reasonable for him to re-locate to Kabul as a safe haven. The only objections that were raised in the FTT to that possibility were that he had lost touch with his mother and she might have moved from MK's home village. The FTT addressed and dismissed all those objections.

Conclusion

46. For all those reasons, I would dismiss this appeal.

Lord Justice Sales:

47. I agree.

Lady Justice King:

48. I also agree.