(Immigration and Asylum Chamber) Appeal Number: PA/05086/2017
THE IMMIGRATION ACTS
Heard at Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On 15 th January 2019
On 15 th February 2019
Upper Tribunal Judge Chalkley
(ANONYMITY DIRECTION is discharged)
For the Appellant: Mr M Bradshaw of Counsel instructed by Sultan Lloyds Solicitors
For the Respondent: Mrs H Aboni, a Home Office Presenting Officer
DECISION AND REASONS
1. Whilst it is the Secretary of State for the Home Department who has appealed to the Upper Tribunal, I refer to the parties as they were before the First Tier Tribunal.
2. The appellant was born on 24 th November 1998 and is a citizen of Afghanistan. He appeals against the decision of the respondent taken on 12 th May 2017 refusing his protection claim. He appealed to a First-tier Tribunal and in a determination of 26 th February 2018 First-tier Tribunal Judge Anthony allowed the appellant's appeal. The Secretary of State for the Home Department has been granted leave to appeal to the Upper Tribunal.
3.. The appellant's claim was that he is of Hazara ethnicity and fears the Taliban, ISIS and other AGEs operating in Afghanistan. His claim was on the basis of his imputed political opinion and his ethnicity. He says that he is at risk of violence from these groups as well as being at risk of forced recruitment and exploitation. Additionally, he also fears from the family of a deceased friend of his and a re-arrest, detention and disproportionate punishment, maybe the death penalty on his return due to a suspicion on the part of his friend's relatives that he murdered his friend.
4. The appellant arrived in the United Kingdom on 3 rd September 2015 and claimed asylum on 10 th September 2015.
5. The judge found that the appellant had demonstrated that his claim was one which engaged the Refugee Convention on the basis of his imputed political opinion and ethnicity. The respondent accepted that the appellant had previously been detained in custody for some seven or eight days on suspicion of having murdered his friend. The judge considered the question of sufficiency of protection and concluded, having looked at the background material, that various state Afghan actors committed serious human rights abuses, government officials, security forces, detention centre authorities and police have reportedly used torture and cruel, inhumane or degrading treatment or punishment. Impunity for human rights violations committed by each of these state actors was reported to have remained widespread. The prison system suffers from severe overcrowding with lengthy pretrial detention remaining a problem. Law agencies reportedly use torture in order to coerce confessions from detainees. The judge noted that Afghan governments perceived as being particularly weak with high levels of corruption, a climate of impunity and in most areas the police are linked to a functioning justice system and in many areas of the country there is no effective government backing the police. Within the police itself corruption is endemic as is the abuse of power and extortion. The justice system is similarly reported to suffer from systematic corruption.
6. The judge found that if the appellant were to be returned to Afghanistan, he could not be returned to his home area. She believed that were he to be returned he would face an unacceptable long pretrial detention in a situation of overcrowding in prisons. She noted the background evidence which suggested that judges are frequently unable to remain in such communities due to insecurity, that anti-government elements take advantage of this rule of law vacuum to enforce their own parallel judicial structures which are illegal. Punishment such as executions are meted out by these structures and are criminal acts but victims of such human rights abuses do not have access to government redress mechanisms. Having reviewed the background evidence she believed it reasonably likely that the appellant would not face a fair trial and a weak formal justice system was likely to lead to ineffective and unreliable adjudication in relation to the criminal matter concerning the appellant.
7. In relation to the appellant's ethnicity and risk to him from the Taliban, ISIS and other AGEs, she concluded that he would be likely to be at risk and considered whether there was any possibility of him being able to relocate. She concluded that he could not relocate to Kabul because to require him to do so would be unduly harsh.
8. The respondent's appeal application was granted leave on the basis that the impact of the appellant's ethnicity on the question of internal relocation suggests that there would be discrimination and that it would not amount to persecution. The judge failed to identify the evidence on which she could find that the appellant's ability to find work or accommodation would materially be affected by his ethnicity and that the judge failed to take into account that grants of up to £1,500 would be made available to the appellant under the Voluntary Assisted Return and Reintegration Programme.
9. Having carefully examined what the judge said and listened to helpful submissions from Counsel and from the Presenting Officer I concluded that there is in fact no material error of law in the judge's determination. In the context of sufficiency of protection the judge considered the risk to the appellant on account of his being wanted suspicion of murder and concluded that he could not return because of poor prison conditions, widespread human rights abuses by various state actors including detention centre authorities, security forces and the police. The lengthy prison system delays overcrowding, lengthy pretrial detention remaining a problem and the fact that law enforcement agencies reportedly use torture in order to coerce confessions from detainees.
10. Insofar as internal flight is concerned, she looked at the situation in Kabul and concluded that because of the appellant's age; lack of family connections to Kabul; significant difficulties he would encounter in securing employment because of prejudice against Hazaras; the financial restraints on him to pay rent for accommodation in Kabul; requiring him to relocate would be unduly harsh. He would have significant difficulties in security, in finding employment to sustain himself and to pay for rented accommodation in Kabul. The appellant's ethnicity would be a further damaging factor which would cause him to face discrimination on attempting to access employment and housing. She found that he would have significant difficulties in adapting to conditions in Kabul without family support and would be particularly vulnerable. She concluded, as she was entitled to do, that in the circumstances it would be unduly harsh to expect the appellant to relocate to Kabul.
11. I find that the making of the decision involved the making of no error of law on the part of the judge and for that reason I uphold the judge's decision.
Notice of Decision
The appellant's appeal is allowed.
Upper Tribunal Judge Chalkley Date: 31 / 01 /2019
TO THE RESPONDENT
No fee is paid or payable and therefore there is no award.
Upper Tribunal Judge Chalkley Date: 31 / 01 /2019