ON APPEAL FROM THE HIGH COURT OF JUSTICE,
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Hanson
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
LORD JUSTICE FLAUX
| KA (AFGHANISTAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Nicholas Chapman (instructed by the Government Legal Department) for the Respondent
Hearing date: 2 May 2019
Crown Copyright ©
Lord Justice McCombe:
"12. …Questions of credibility are matters for the Tribunal and I must be cautious in rejecting as incredible an account by an anxious, young and inexperienced asylum seeker, whose reasons for seeking asylum may well be expected to contain inconsistencies and omissions in the course of its revelation to the authorities and investigation on appeal. In R (on the application of Ngirincuti) v Secretary of State for the Home Department  EWHC 1952 (Admin) Blake J observed:
"most people who have experience of obtaining a narrative from asylum seekers from a different language or different culture recognise that time, confidence in the interviewer and the interview process and some patience and some specific direction to pertinent questions is needed to adduce a comprehensive and adequate account."
The Tribunal has noted that it is
"perfectly possible for an adjudicator to believe that a witness is not telling the truth about some matters, has exaggerated the story to make his case better, or is simply uncertain about matters, but still to be persuaded that the centrepiece of the story stands".
I also recognise that a person may be disbelieved entirely about his or her claimed history of persecution but still be found to be at risk of being persecuted in the future."
"13. …The Appellant failed to claim asylum in several safe third countries including Hungary before coming to the United Kingdom. Indeed he wears [sic] finger printed in Hungary. He also lived and worked in Turkey for three years. He left that country because he says that he was stabbed but I have seen no supporting evidence to support that. He could and should have claimed asylum earlier and this has damaged his credibility. Had he travelled without such a lengthy sojourn in Turkey I would be more amenable to his explanation and the suggestion that he had no choice because of the role of the agent in his life the influence that he exerted."
"14. I did not have the benefit of hearing the Appellant giving evidence. Had I done so, I would have been able to assess his evidence and how it stood up to cross examination. He was present at the hearing and there was no obvious reason why he did not give evidence. There was no suggestion that he suffered from mental health issues that would make it very difficult to give evidence. There was no evidence about his peace of mind being disturbed. He is 16 years old and could have testified. Instead, he simply chose to say nothing. He did not adopt his witness statement. Under the circumstances, I give his his [sic] witness statement very little weight. I have not even seen copies of the alleged Taliban letters. I simply to [sic] not believe what he is saying about the letters or that his father was threatened or that he was even in the army."
Before proceeding further, it seems strange to me how the FTT could have regarded the absence of copies of the letters from the Taliban as having any bearing upon the matter. In the circumstances described by KA, it would scarcely have been possible for him to get hold of the letters so that copies could be placed before a hypothetical court in a far off country.
"16. In AK [sic: HK] the Tribunal said that where a child has close relatives in Afghanistan who have assisted him in leaving the country, any assertion that such family members are un-contactable or are unable to meet the child in Kabul and care for him on return, should be supported by credible evidence of efforts to contact those family members and their inability to meet and care for the child in the event of return. I accept that the Appellant has family in Afghanistan who arranged for an agent to remove him to this country. However, he says that he has lost contact with his family. In view of the fact that I do not accept that the Taliban threatened his father I am not prepared to accept that he has lost contact with his family or he does not know their whereabouts. I have no reason to believe that the Appellant's family would be unable to meet him and care for him in Kabul on his return or that he would be forced to live alone if he returns to Afghanistan. He would not be an orphan and he would not be returning as an unaccompanied child. He would be returning as a single able-bodied adult."
(Again, of course, the decision (in part) relied erroneously upon the situation when KA would have reached adulthood.) It was noted that, in earlier authority, the UT had said that the level of violence in Kabul and the privations of the poor and of the number of internally displaced persons (IDPs) living there did not generally make return to Kabul unsafe or unreasonable. The FTT rejected a submission for KA that it should depart from the country guidance on this point.
"20. I believe that the Appellant is frightened of the mere possibility of ill-treatment or forcible recruitment on account of the unsettled situation in his country. He would not be of interest to the authorities as a potential insurgent or foreigner and he would not be targeted and subjected to inhumane treatment. Although he would be a man of military age on his return, I do not accept on the objective evidence that he would be at risk of forcible recruitment either by AGEs or ALP in Kabul. His fear is purely generalised and not specific to him. He would be returning to Kabul as a single, able-bodied man and may be able to subsist without family and community support in Kabul in an area that has necessary infrastructure and livelihood opportunities to meet the basic necessities of life and are under effective government control. For the reasons given above I do not, in any event, believe that he has lost contact with his family and he should be able to call upon their support on relocating."
"1. It is arguable the First-tier Tribunal judge failed to give adequate or any regard to the appellant as a child; failed to give adequate or any regard to Turkey not being a signatory to the Refugee Convention and the shortcomings of the Hungarian asylum system; that he assessed the evidence on the basis the appellant would be returning to Afghanistan as a 'man' rather than a minor, failed to assess the reasonableness of return to Kabul.
2. All grounds arguable. Permission is granted."
In presenting in writing the proposed grounds of appeal to the UT, Mr Bedford included, as ground 3, the following:
"3. At  the learned Judge erred in treating A's credibility as damaged for not claiming asylum in asylum in Hungary or Turkey when:
- the High Court ruled on 5 August 2016 there was evidence of systemic failings and deficiencies in the Hungarian asylum system: Ibrahimi & Abasi v SSHD  EWHC 20148 (Admin)
- Turkey is not a signatory to the refugee convention and as such it is not a safe third country within the meaning of article 27 of Directive 2005/85/EC."
"18. Whether an individual gives evidence is a matter for them although what weight shall be given to material made available is for the Judge, provided it is shown the Judge considered the evidence with the required degree of anxious scrutiny and has given adequate reasons for findings made, as the Judge arguably did. To the extent this is a weight challenge, the appellant has failed to make out any arguable legal error in the approach adopted by the Judge when assessing the weights [sic] to be given to the appellant's evidence. Similarly, the Judge does not seek corroborative evidence but observes that he has not seen copies of alleged Taliban letters which is factually correct. In light of the fact little weight could be given to the evidence which was not tested under cross examination and in the absence of any evidence other than that referred to by the Judge, the Judge was entitled to conclude that he did not find the appellant's father's activities in the army, to be convincing. It is arguable the Judge was entitled to apply little weight to the assertion made such as to conclude that he did not believe the appellant's account.
19. If a witness fails to attend the hearing, or attends but elects not to give oral evidence, they must accept that the Judge can only arrive at findings based upon the evidence the Judge accepts he or she can attach due weight to."
"24. It is accepted Turkey is not a signatory to the Refugee Convention meaning the appellant is unable to claim asylum in that country, but the Judge does not specifically claim that the appellant should have claimed asylum there. There appears to be a contradiction in the Judge noting the respondent's claim that the appellant had claimed asylum in Hungary when he was encountered on 29 August 2015 but was unaware of the outcome of the application as he left the country to come to the UK, rather than availing himself of the protection of the authorities in Hungary. The appellant would have been unaware of the decisions of the High Court in relation to difficulties within the Hungarian asylum system and indeed appears to have engaged with the authorities by making an asylum claim without evidence of his experiencing any difficulties. This is therefore not a decision made in relation to a person who did not make a claim but rather a person who did claim asylum but then chose to pursue his claim elsewhere, namely in the United Kingdom. The Judge's conclusions in relation to section 8 of the 2004 Act have not been shown to be infected by arguable material error on the facts. In any event, the Judge did not make the adverse credibility findings based upon the Section 8 elements only but clearly found that the appellant's behaviour contributed to the adverse credibility findings."
"…no credible real risk of persecution in…Afghanistan…and that any potential risk in the appellant's home area [was] mitigated by the availability of an internal flight option which the appellant had not shown was unreasonable or unfair….".
"4. …It was found he had family in Afghanistan to whom he will be able to turn for assistance. Insufficient evidence was provided to find that as a child within the protection of the family unit the appellant was entitled to a grant of international protection.
5. Insufficient evidence was adduced to find it would be unreasonable in all the circumstances for the appellant to internally relocate to Kabul . The case law relied upon by the appellant was specifically commented upon in [30 – 31].
6. The Grounds fail to establish why a Court of Appeal decision is necessary to determine whether Section 8 of the 2004 Act has application where an individual does not give oral evidence, as the question is whether there was sufficient evidence to establish whether Section 8 was engaged, which need not necessarily be oral, which clearly existed in this case. There was adequate evidence to warrant Section 8 being found to be engaged as was the appellant claiming asylum in Hungary but failing to await the outcome of his application before travelling to the UK."
Permission to appeal was granted by my order of 30 July 2018.
"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."
Mr Bedford also stressed the passages appearing in paragraphs 31 and 32 of Sir Ernest's judgment as follows:
"31. The Practice Direction ('PD') and the Guidance Note ('Guidance') provide detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person. I agree with the Lord Chancellor's submission that there are five key features:
(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 paras 4 and 5);
(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 para 2 and Guidance paras 8 and 9);
(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 paras 6 and 7 and Guidance para 10);
(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 paras 10.2–15); and
(e) relevant additional sources of guidance are identified in the Guidance including from international bodies (Guidance Annex A paras 22–27).
32. In addition, the Guidance at paras 4 and 5 makes it clear that one of the purposes of the early identification of issues of vulnerability is to minimise exposure to harm of vulnerable individuals. The Guidance at para 5.1 warns representatives that they may fail to recognise vulnerability and they might consider it appropriate to suggest that an appropriate adult attends with the vulnerable witness to give him or her assistance. That said, the primary responsibility for identifying vulnerabilities must rest with the appellant's representatives who are better placed than the Secretary of State's representatives to have access to private medical and personal information. Appellant's representatives should draw the tribunal's attention to the PD and Guidance and should make submissions about the appropriate directions and measures to be considered eg whether an appellant should give oral evidence or the special measures that are required to protect his welfare or make effective his access to justice."
"(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; …
… (e) the manner in which an 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. …"
"8 Claimant's credibility
(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or human rights claim, a deciding authority shall take account, as damaging the claimant's credibility, of any behaviour to which this section applies. …
(4) This section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country. …
(7) In this section- …
"safe country" means a country to which Part 2 of Schedule 3 applies."
Schedule 3 paragraph 2 states that Part 2 applies to (among other countries) Hungary and France.
"Section 8 Consideration
30. In determining your asylum and human rights claim, consideration has been given to section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and the Court of Appeal case of JT Cameroon, which provides that a deciding authority shall take account of the following behaviour, as potentially damaging to your credibility.
31. Section 8 (4) of this act states that 'this section also applies to failure by the claimant to take advantage of a reasonable opportunity to make an asylum claim or human rights claim while in a safe country. It is noted that you travelled through France and various other European countries on your way to the UK. You failed to make a claim for asylum in any of these countries. You did however claim asylum in Hungary when you were encountered on 29/08/2015. However you are unaware of the outcome of this application and in any case you fled the country to come to the UK rather than avail yourself in the protection of the authorities in Hungary. Your behaviour is considered to fall within this section of the act and as a result of your actions your credibility has been damaged under section 8 (4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004."
"21. Section 8 can thus be construed as not offending against constitutional principles. It is no more than a reminder to fact-finding tribunals that conduct coming within the categories stated in s 8 shall be taken into account in assessing credibility. If there was a tendency for tribunals simply to ignore these matters when assessing credibility, they were in error. It is necessary to take account of them. However, at one end of the spectrum, there may, unusually, be cases in which conduct of the kind identified in s 8 is held to carry no weight at all in the overall assessment of credibility on the particular facts. I do not consider the section prevents that finding in an appropriate case. Subject to that, I respectfully agree with Baroness Scotland's assessment, when introducing the Bill, of the effect of s 8. Where s 8 matters are held to be entitled to some weight, the weight to be given to them is entirely a matter for the fact-finder."
"159. Presumption of compliance is rebutted: Hungary is an EU state to whom the presumption of compliance prima facie exists and the Secretary of State places heavy reliance upon this fact. However, in my judgment the presumption cannot stand, even if it could have stood as of the date of the impugned decisions. Since that date much has changed. The EU Commission has opened the pre-formal infraction procedure against Hungary and the UNHCR has expressed concerns which on their face are very serious. Hungary has also taken steps to effect removals to Greece knowing full well that the Strasbourg Court (in MSS) has concluded that Greece is not to be treated as a safe country. The conclusion of the EU Commission and the UNHCR is that a person removed to Hungary will be subject to an asylum and judicial supervision procedure under which that person's true asylum case and any properly grounded fears of refoulement to Iran might not be fairly and effectively assessed. The overall context of the asylum law reforms in Hungary also needs to be taken into account. The Claimants have placed significant reliance upon the general anti-immigrant climate which they say pervaded the approach of the Hungarian Government: See Evidence Summary at Annex 1 paragraphs  - . Care is of course required: political rhetoric does not necessarily translate into action particularly in a state governed by the rule of law. Whilst not all of the reforms to the Hungarian asylum rules are relevant to the facts of this case (such as the border reforms) the broader context is of a state that is prepared to adopt an asylum regime which is deliberately designed to deter immigrants and to weaken judicial supervision with a view to removing those who are temporarily present in Hungary to third countries. In these circumstances the submission that the presumption that Hungary qua EU Member State adheres to the acquis Communitaire and can be relied upon to respect relevant international law and ECHR rights of the Claimants cannot carry much weight. The objective facts suggest otherwise. In such circumstances it is necessary to look carefully at the facts and assess the risk of refoulement or treatment contrary to the ECHR without applying any presumption."
There is more, to similar effect, in the ensuing paragraph as to "deficient procedural guarantees" with regard to asylum processes in Hungary.
Lord Justice Lindblom:
Lord Justice Flaux:
Note 2 Since the hearing we have been referred to a decision of this court in a different procedural context, making somewhat similar points: see Anderson v Turning Point Eespro  EWCA Civ 815, at  and  –  which I do not think takes the argument further in the present case. [Back] Note 3 Article 8 (Minors) paragraph 4 provides as follows:
“4. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor.” [Back]
Note 2 Since the hearing we have been referred to a decision of this court in a different procedural context, making somewhat similar points: see Anderson v Turning Point Eespro  EWCA Civ 815, at  and  –  which I do not think takes the argument further in the present case. [Back]
Note 3 Article 8 (Minors) paragraph 4 provides as follows: “4. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor.” [Back]