(Immigration and Asylum Chamber) Appeal Number: AA/13345/2010
THE IMMIGRATION ACTS
Heard at Sheldon Court, Birmingham
On 11th June 2013
On 30th July 2013
Upper Tribunal Judge Southern
Deputy Upper Tribunal Judge French
KHAN MOHAMMED AHMADZAI
For the Appellant: Mr B. Bedford instructed by Sultan Lloyd solicitors
For the Respondent: Mr J. Singh, Home Office Presenting Officer
DETERMINATION AND REASONS
“Whilst he is an orphan he is not without family in Afghanistan. Whilst he claims not to know the whereabouts of his uncle, brother and sister he has not shown they are no longer alive.”
Although recognising the existence of the duty to trace relatives, the judge said she couldn’t accept that negated the burden upon the appellant to show that adequate reception facilities would not be available on return to Afghanistan. She noted that although the appellant relied upon evidence that he had made an unsuccessful attempt to use the services of the Red Cross he had provided the name of just one relative, and that with a different spelling than the one disclosed in his other appeal documents. The judge thought that if the appellant had provided the Red Cross with his uncle’s name, as he had said he had, then that relative, as a taxi driver, “would be reasonably easy to trace”. Further, the judge noted that the appellant had made no attempt to trace his sister.
“I do not consider it would be unreasonable for the appellant to remain in Kabul following his arrival there.”
“Whatever the situation may have been section 55 and the obligation on the Secretary of State to make efforts to locate family members no longer apply. It follows that if errors were made by the Immigration Judge on those points then they cannot be said to be material.
The reason for that is that the appellant’s representatives effectively argued that the appellant was entitled to asylum by reason of age. His claim based on his membership of a particular social group was rejected by the immigration judge with reasons that cannot be impugned and he is not entitled to refugee status on the position at the date of the hearing…..”
“The parties are agreed that for the reasons set out below, the appellants appeal to the Court of Appeal against the decision of the Upper Tribunal dated 9 February 2011 should be allowed and remitted for re-determination of the article 8 ground according to law.
The FTT took account of the appellant’s having family to return to in its consideration of proportionality under article 8. The FTT erred in drawing inferences against KA for failing to trace his family without taking account of the secretary of state's failure to do so, in circumstances in which, on the particular facts of this case as found by the tribunal, the tracing exercise might have borne fruit. When the UT considered the matter on appeal it simply held that the failure was immaterial.
The Secretary of State accepts that had the FTT properly taken account of the Secretary of State's failure to trace it may have reached a different conclusion on the evidence (and to that extent KA has suffered a disadvantage). The proper course of action is to allow the appeal and remits the matter to the Upper Tribunal on article 8.”
“It is a complicated question and not simply a matter of the systemic breach entitling these appellants, without more ado, to the allowing of their appeals with remittals to the Secretary of State to considered grants of leave to remain, which is the primary relief sought. Nor does it admit of the simplistic analysis that the appellants were over 18 when their cases came before the FTT or the UT and, as a consequence and in accordance with the Ravichandran principle, the breach had become irrelevant to the requisite consideration of their cases by reference to the circumstances prevailing at the time of the hearings. When the Rashid / S principle applies, it modifies the strict application of RRavichandran.”.
“… much will turn on their specific facts. There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage…”
“I confirm that after arriving in the United Kingdom I have not had any contact with any of my family members. However, I have always explained that I left behind my brother Tahseeldar and sister who were living with my maternal uncle in Kabul…”
“Still in Afghanistan. He was at my home in Lowgar as far as I am aware.”
Contradicting that, he said at a later interview that the brother, as well as his sister, had moved to Kabul. His evidence before us was that his brother and sister moved to live with his uncle at about the same time that he had left to travel to the United Kingdom. He said also that he himself had never visited Kabul and he was not provided with his uncle’s address and so had no idea where his remaining relatives were now living and that he had had no contact with them.
Tracing enquiry regarding Tahsil Dar
We refer to your enquiry of 6th May 2009 and very much regret that with the details you have given us, the International Committee of the Red Cross (ICRC) has been unable to obtain any information from any of the sources given regarding the present location of your relative.
We would like to assure you that all appropriate sources of information have been tried and we are very sorry our enquiries in this case have been unsuccessful.
Please bear in mind that even though the ICRC has been unable to find your relative, this does not mean that your relative cannot be traced through other channels.
Following our investigation we now consider your case closed. However, should any information reach us in the future we will not fail to inform you. Alternatively, should you obtain any new appropriate additional information, we will be pleased to review the case.
Please feel free to discuss any of the above with us. I am sorry that we do not have more welcoming news.”
“The thing is when I left Afghanistan they said they may have gone to Kabul so I thought they may have done so.”
When it was put to him that in his witness statement he had said that:
“… I have always explained that I left behind my brother Tehseeldar and my sister who were living with my maternal uncle in Kabul….”
he said simply that this was “wrong”.
“My way of thinking has completely changed now and I know it will be extremely difficult for me to return to living in a strictly controlled and restrictive society such as in Afghanistan.”
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of the rights and freedoms of others.
(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?
(2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?
(3) If so, is such interference in accordance with the law?
(4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?
Upper Tribunal Judge Southern
17 July 2013