(Immigration and Asylum Chamber) Appeal Number: pa/04645/2018
THE IMMIGRATION ACTS
Heard at Newport
Decision & Reasons Promulgated
On 7 December 2018
On 19 February 2019
UPPER TRIBUNAL JUDGE LANE
(ANONYMITY DIRECTION made)
For the Appellant: Mr Gobir, instructed by Albany Solicitors
For the Respondent: Mr Howells, Senior Home Office Presenting Officer
DECISION AND REASONS
1. The appellant SF, was born in 2004 and is a male citizen of Afghanistan. He appealed to the First-tier Tribunal (Judge Lever) against a decision of the Secretary of State dated 10 March 2018 to refuse the appellant asylum. The appellant has been granted leave to remain in the United Kingdom until 9 September 2020. In his decision letter, the Secretary of State  gave reasons for the grant of discretionary leave to remain:
I have decided that adequate reception arrangements in your own country are absent at this time. You have therefore been granted leave to enter/remain in the United Kingdom. Your leave ends on 9 September 2020. If adequate reception arrangements are confirmed in your own country before your leave expires, your leave will be curtailed. Once your leave to enter or remain ceases you may be liable to removal from the United Kingdom unless you qualify for leave to enter or remain on other grounds.
2. The appellant appealed against the decision to refuse him asylum to the First-tier Tribunal (Judge Lever) which, in a decision promulgated on 24 May 2018 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
3. The appellant relies on LQ (Age, Immutable Characteristic) Afghanistan  UKAIT 00005. The appellant asserts that, as a result of his age, he is a member of a particular social group and ought to be recognised as a refugee for that reason. The judge, on the other hand, took the view that the Refugee Convention claim is "academic". At , Judge Lever wrote:
Any potential risk to [the appellant's] protective rights under Articles 2/3 [ECHR] were essentially subsumed by the fact the appellant has been granted temporary leave to remain under paragraph 352ZC of the Immigration Rules. This is based on the fact that the appellant is under the age of 17½, is unaccompanied and was not granted either asylum or humanitarian protection by the Home Office. Further it is because there is no adequate reception arrangements in his home country.
4. The appellant complains that, although he has given reasons for disposing of the appellant's claim under Articles 2/3 ECHR, the judge had failed to make a proper finding in respect of the Refugee Convention. The appellant also relies ST (Child asylum seekers) Sri Lanka  UKUT 292 (IAC). The appellant relies in particular on :
The judge's second error was in respect of the material date to assess risk on return. It is clear that the grant of the status of refugee cannot be evaded by the respondent in effect saying that although there is a risk of ill-treatment today, the Secretary of State proposes to grant discretionary leave to remain until the risk has diminished. Where an asylum claim is determined substantive and the criteria for the status are met, there is a right to the status, albeit one that can be made subject to the cessation clauses: see LQ (above).
5. Mr Gobir who appeared for the appellant in the Upper Tribunal relied heavily upon ST. However, by relying upon  in isolation from the remainder of that decision, he has overlooked the fact that in order to succeed in a claim for refugee status the appellant must still prove that he would be at real risk on return to Afghanistan. I acknowledge the risk must be assessed now rather than at an unspecified future date when the appellant has passed beyond the age of 17.5 years but I note also that the appellant in ST failed to persuade the Upper Tribunal that, although he was a child at the date of the hearing, he would be at risk on return. In ST, the Upper Tribunal went on to find at  that the individual circumstances of that appellant indicated that, notwithstanding his age, he would not be at risk. Obviously, the appellant in that case was a citizen of Sri Lanka. The Tribunal had regard to the fact that he had family living in his home state who would assist him on return. In the instant appeal, the appellant has been granted discretionary leave to remain because the Home Office has been able to locate his family in Afghanistan. However, the judge's findings were that no part of the appellant's account of past events could be relied upon. The judge went on to say at  that "given my findings on fact and credibility I do not accept the appellant forms a member of a particular social group either because of his age or any other feature of his case." It follows from the judge's findings that there are no agents, state or otherwise in Afghanistan who would seek to harm this appellant. The judge found that the appellant was "not at real risk of persecution from either his father, family or his local village generally" and that the appellant was "not at risk of persecution for an imputed political opinion." I have considered what the Upper Tribunal in ST said at :
Nor are we engaged in the task of requiring the respondent to prove precisely the circumstances for his removal and reception in Sri Lanka. This would be unnecessary in a case where the issue is not general welfare assessment on removal but whether the appellant on the known facts is entitled to refugee status. As a matter of practicality, it would be absurd to require detailed evidence of a removal plan: which home will the claimant be admitted to, how will he get there, who will meet him and the like when it is not proposed to remove him at all. We conclude that it is sufficient for present purposes to note the general legal obligations on the Secretary of State (that is to say s.55 of the 2009 Act and Article 3 UNCRC) in the event that the fictional hypothesis on which the appeal is predicated were to be implemented.
6. As with the appellant in ST, Judge Lever has carried out the hypothetical assessment of whether the appellant has a genuine subjective fear which is well-founded of persecution or ill-treatment in Afghanistan. For the reasons the judge has given, the outcome of that hypothetical exercise is that the appellant does not have such a fear nor is it well-founded. That assessment satisfies the requirement, as articulated in ST of determining whether the appellant should be given refugee status now rather than at some date in the future at . As in ST, there was no need for Judge Lever to descend to a particular examination of the precise reception facilities for the appellant were he to be returned now to Afghanistan.
7. Mr Gobir advanced a further ground of appeal at the Upper Tribunal hearing. He referred to Judge Lever's exposition of the law relating to asylum and the standard of proof required in an asylum appeal. At  Judge Lever wrote:
In essence, an appellant will have to show there are substantial grounds for believing that he is outside his country of nationality or if applicable his country of former habitual residence by reason of a well-founded fear of persecution for a Refugee Convention reason and is unable or unwilling owing to such fear to avail himself of the protection of that country.
8. Mr Gobir complained that the judge had not referred to "a reasonable degree of likelihood" or "a real risk". I reject the submission. The articulation of the relevant standard of proof in asylum by Judge Lever is in all essentials adequate and accurate.
9. In conclusion, I find that the judge had not erred in law. As with the Tribunal in ST, the judge has correctly considered whether or not there was a real risk of persecution to the appellant existing at the present time in Afghanistan. The judge has categorically decided that there is no such risk. It is clearly possible also to infer from the judge's findings of fact that if he is not at real risk of persecution from members of his family or others in his local village, then the appellant as a minor would not be living alone at the present time in Afghanistan but with his family and in his local village. That finding does not require a detailed assessment of how and in what circumstances the appellant would actually return to Afghanistan; Judge Lever's findings in respect of credibility are, as he stated, adequate to dispose of the asylum appeal.
Notice of Decision
This appeal is dismissed.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
Signed Date 1 February 2019
Upper Tribunal Judge Lane
TO THE RESPONDENT
No fee is paid or payable and therefore there can be no fee award.
Signed Date 1 February 2019
Upper Tribunal Judge Lane