JN (Afghanistan) v Secretary of State for the Home Department [2010] EWCA Civ 723

[2010] EWCA Civ 723

Case No C5/2009/1081/AITRF

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

The Asylum & Immigration Tribunal

AA02269/2008

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 29/06/2010

Before

LORD JUSTICE PILL

LADY JUSTICE ARDEN

LORD JUSTICE SULLIVAN

Between

JN (AFGHANISTAN)Appellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Joseph Middleton (instructed by Refugee and Migrant Justice) for Appellant

Vikram Sachdeva (instructed by Treasury Solicitors) for Respondent

Hearing Hearing dates : Friday, 7th May 2010

Judgment

Introduction

[1]Although this appeal is, as a matter of form, an appeal against the Determination promulgated on 18th March 2009 of Immigration Judge Davey on reconsideration (the 2009 Determination) to dismiss the Appellant’s appeal against the Respondent’s rejection of his claim for asylum, as a matter of substance the Appellant contends that reconsideration of his appeal was unjustified because the Tribunal erred in concluding that there was a material error of law in the Determination dated 12th September 2008 of Immigration Judge Cameron (the 2008 Determination) allowing his appeal. Thus, the focus of this appeal is on the lawfulness of the 2008 Determination. If reconsideration was justified because it contained a material error of law, there is no challenge to the 2009 Determination.

Background

[2]The Appellant is a young Afghan. He was born on 29th July 1991. He claimed asylum on arrival in the UK on 30th November 2007. In summary, he claimed that he and his family were Hazaras. His father had been forced to work for the Taliban in order to protect his community from being targeted by them. As a result, when the Taliban fell his father was pursued by the Afghan authorities and killed by them in or about September 2007. After his father’s death the authorities targeted the Appellant and his mother because they believed that he and his mother had information as to the whereabouts of his father’s guns and ammunition. After the last visit of the authorities in October 2007 the family, comprising the Appellant, his younger brother and their mother, fled Afghanistan with the assistance of an agent. The family became separated and the Appellant has had no contact with his mother and brother since the family left Afghanistan.

[3]In a decision letter dated 20th March 2008 (the decision letter) the Respondent rejected the Appellant’s claim because his account was “considered to be incredible” (para.34). In paragraphs 27-33 of the decision letter the Respondent gave seven reasons why the claim had not been believed (see below, para.4). The decision letter further stated in paragraphs 35-40 that even if the claim had been accepted the Appellant could still safely return to Afghanistan because(i) the threats made to the family after the Appellant’s father’s death “were the action of rogue agents and not actually going to result in [the family’s] detention”;

(ii) in the light of his father’s role in saving the lives of Hazara people his past would not place the Appellant at risk in Afghanistan; and

(iii) internal relocation would be a viable option.

The 2008 Determination

[4]In his Determination Immigration Judge Cameron accurately summarised in paragraphs 12-16 the reasons why the Respondent did not find the claim to be credible. For ease of reference I have numbered the seven reasons [1] – [7]: “12. The respondent does not find the appellant’s claim to be credible. In interview he stated the authorities first visited his home in 2001 and then visited a further 8 to 10 times looking for his father. In his statement he claims his problems did not begin until after his father’s death [1]. He also states his mother’s ribs were broken before his father’s death but states this was after his father’s death in his statement [2]. In addition the appellant states that the authorities informed him of his father’s death but in the statement he indicates that he was told by other people [3].13. The appellant states that after his father’s death the authorities visited three times however this contradicts his statement that they visited 10 times following his father’s death. These inconsistencies affect the appellant’s overall credibility [4].

14. In addition it is not accepted as plausible that the appellant’s mother would be able to obtain $6,000 within two days [5].

15. The appellant further stated in interview that he had not come into contact with the authorities anywhere else. The appellant’s fingerprints have been matched to those taken in Greece and his deliberate attempt to conceal evidence further damages his credibility [6].

16. The appellant states that his father helped the Taliban however given the historical relationship between people of Hazara ethnicity and the Taliban it is not considered plausible that they would have assisted him and trusted him to the extent of allowing him to join them [7]”.

[5]The Appellant gave oral evidence through an interpreter and was cross examined. In paragraphs 21-30 of the Determination Immigration Judge Cameron summarised the Appellant’s answers in cross examination, e.g.: “It was put to him that he had stated in his statement of evidence form that his problems had started three months after his father’s death. He confirmed that this was the case although he had encountered problems in his country before then and before his father’s death. He stated what he meant was that his problems have started increasing at that point. ” (para.21)

[6]Immigration Judge Cameron then considered credibility in the context of section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Having found that the Appellant sought asylum on the day of arrival, he said in paragraph 35:

“35. It has been submitted that an adverse credibility finding should be made against the appellant in relation to his failure to claim asylum in Greece. The appellant’s evidence in relation to this is that he was stopped by people who were not in uniform and who spoke a language he did not understand. He accepts that some form of fingerprinting or handprint was taken from him but he was then allowed to proceed on his way. Taking account of the fact that the appellant was 16 years of age and under the control of the agent. I do not make an adverse credibility finding in relation to Section 8.”

[7]The Respondent had disputed the Appellant’s age. Having resolved that dispute in the Appellant’s favour, Immigration

Judge Cameron summarised the parties’ positions in the light of the oral evidence:

“43. The appellants claim is essentially that his father was forced to work for the Taliban and that as a result of this his father was targeted by the authorities and killed by them. He states that after his father’s death the authorities visited his house on three occasions, there is some dispute as to this part in particular the number of times visited. The appellant has however been consistent that the authorities were looking to him and his mother for information as to any guns and ammunition that his father may have had access to. 44. As a result of the authority’s interest in the family the appellant together with his mother and younger brother fled Afghanistan. They were however separated and he now does not know where they are. 45. The respondent has submitted that an adverse credibility finding should be made against the appellant on the basis that there were a number of discrepancies in his evidence. In particular that he had stated that the problems had started three months after his father had been killed but now states that there had been problems throughout. He has also stated that they were visited 10 times after his father was killed but today says that was three times. He did not reveal he had been fingerprinted in Greece. In addition he has not been able to explain how his mother raised US$6000 in two days. 46. The respondent has also indicated that it is not credible that his father would have worked for the Taliban given the relationship between the Hazara and the Taliban. He stated that the appellant is of no interest to the authorities either then or now and that his family are still in fact in Afghanistan.”

[8]Immigration Judge Cameron referred to the objective evidence in relation to the last point made by the Respondent about the Appellant’s father. He stated that a Human Rights Watch report confirmed that the Taliban targeted the Hazaras. He then set out a passage from the report which said that the transition to the Taliban had caused fewer civilian casualties than had been feared by local residents, and that some observers attributed this to an alliance that had been forged between the Taliban and the leader of a local faction.

[9]In paragraphs 49-50 of the Determination Immigration

Judge Cameron returned to the issue of credibility:

“49. As indicated above the respondent has pointed to a number of what are said to be credibility issues. The appellant during oral evidence and in his statement has indicated that some of the questions asked during his interview were misinterpreted or were paraphrased. The appellant has provided a full typed version of the interview setting out the question asked, the interpretation and the answer from the appellant and the way that was interpreted. 50. It is clear from the interview that the appellant stated that his father was a commander for Hezbe Wahdat and was in an important role. He also stated that his uncle worked at police station number seven with his father. The appellant further stated that his father had been forced to join the Taliban in 1998 when he was a very young child. He confirmed that his father was forced to work for them and that the Taliban were controlling their area. The appellant further stated that they had hidden in the mountains for about two months but had come down after his uncle had been killed and the Taliban stated that there was an amnesty. He states his father was arrested for three days but was then appointed as a representative and that they would pressurise his father to go to the people and do this or that and talk to the public and tell them the news the Taliban wanted them to know. He further stated that his father assisted the Taliban in order to prevent bloodshed.”

[10]In paragraphs 52-55 Immigration

Judge Cameron dealt with the other credibility issues raised by the Respondent, as follows:

“52. There has also been an issue taken in relation to the appellant’s evidence as to whether the family were visited 3 or 10 times after his father died. The appellant during his interview clearly states that the authorities first visited the house around 2001 and that they would come and look for his father and search the house and would question his mother. He states at the time he was not even 10 years old. The appellant also confirmed in interview that his father would come home about every eight months. 53. With regards to the number of times his father visited the appellant at question 42 clearly states that the authorities visited three times after his father’s death. There is also an issue as to whether his mother was injured prior to its father’s death. At question 38 of the interview he does appear to indicate that the injury occurred while his father was alive. It has been stated that this answer was ambiguous. The appellant[’s solicitors] in their typed version of the interview have set out the answer more fully. The appellant was generally talking about when the authorities had come and has indicated that a number of times his mother was hit. Although the questions were at that time about the appellant’s father I take into account the fact that the appellant himself was only 16 years of age when he was being questioned and I do not find this particular inconsistency goes to the core of the appellant’s claim. 54. With regard to how he was informed of his father’s death the interview is ambiguous. At question 40 the appellants answer is given as the government notified us. In the typed version from the appellant’s representatives it indicates that he said there is government. The government notified. People got their, brought the body and buried. Taking account of the fact that I have found the appellant was 16 at the time of his interview and applying the lower standard of proof I accept the appellant’s explanation in relation to this issue. 55. The appellant has also been consistent with regard to his mother obtaining the $6,000. He is indicated that he believes the money may have come from money his father had given his mother when he visited. He was again only 16 and relied upon his mother and I make no adverse credibility finding in relation to this issue.”

[11]Immigration

Judge Cameron’s conclusions are in paragraphs 56-59 of his Determination:

“56. I have had the opportunity to hear the appellant give evidence and after considering that evidence in light of the objective evidence available I am satisfied that he is a credible witness. I find that the appellant was born on 29 July 1991 and at the time of his claim he was 16. The appellant is now 17 and nearly two months. 57. After considering all of the evidence I am satisfied that the appellant has been truthful in relation to the fact that his father was forced to fight for the Taliban in order to help protect his home area from being targeted by the Taliban themselves. As a result of this his father was then sought by the authorities. The fact that the appellant’s father was killed is entirely consistent with the objective evidence available. I also accept that the appellant and his mother were then targeted by the authorities as they believed there may be guns in the area. The appellant has been consistent throughout that his mother and younger brother fled but that they were separated and that he now does not know where they are. 58. Although there are apparently a number of inconsistencies between the appellant’s interview and his subsequent statement and oral evidence, I am satisfied that he has explained these. Any other minor inconsistencies do not go to the core of his claim that is that he was targeted by the authorities after the death of his father. 59. I therefore find that the appellant has shown substantial grounds for believing that he feared persecution for a Convention reason namely an imputed political opinion. I am satisfied that the appellant could not obtain protection within his own area as he was at risk from the authorities themselves.”

[12]In paragraphs 60-62 Immigration Judge Cameron rejected relocation to Kabul as an option for a 17 year old youth with no support who would be obviously recognisable as a Hazara.

The Respondent applies for reconsideration

[13]The Respondent applied for reconsideration of the 2008 Determination. In Part C of the Application Notice the Respondent’s grounds were as follows:

“Ground 1: The Immigration Judge has failed to give adequate reasons for his findings on material matters 1. It is submitted that the Immigration Judge has materially erred in his assessment of whether the appellant would be at risk on return to his home area. The Immigration Judge notes at paragraph 58 of the determination that he finds that the appellant was targeted by the authorities after the death of his father. He goes on to find that there are substantial grounds for believing the appellant feared persecution for a Convention reason, that of imputed political opinion and finds that the appellant could not obtain protection within his home area. It is submitted that the Immigration Judge has failed to give clear or sustainable reasons as to why he accepts the authorities would be interested in the appellant and his family due to there ‘being guns in the area’ (paragraph 57 refers) but it is submitted that the appellant was not personally involved in the Taliban and it is not clear on what evidence the Immigration Judge relies on when finding the appellant would be of interest to the authorities in his home area on account of his family connection with his father, who is now dead. 2. For this reason, it is submitted that the Immigration Judge has erred in his findings of fact and has therefore erred in his assessment of the risk to the appellant on return to Afghanistan. His approach to allowing the appeal on asylum and human rights grounds is therefore flawed.”

[14]In a decision dated 26th September 2008 Senior Immigration

Judge Nichols ordered reconsideration for the following reasons:

“It is arguable in my view that the Immigration Judge may not have given proper reasons for his conclusion at paragraph 59 that the appellant would continue to be at risk from the authorities in his home area as a result of his [father’s] former association with the Taliban. The Immigration Judge has not adequately and properly explained, following on from his finding at paragraph 57, why the appellant faces a real risk on this account now.”

It is common ground that the Senior Immigration Judge Nichols must have intended to refer to the Appellant’s father’s former association with the Taliban. It had never been suggested that the Appellant himself had been associated with the Taliban.

Senior Immigration Judge Southern’s Determination

[15]Senior Immigration Judge Southern held a first stage reconsideration hearing on 2nd December 2008. He decided that Immigration Judge Cameron had made a material error of law, ordered that the 2008 Determination should be set aside and, and that:

“The Tribunal shall consider the evidence afresh at a hearing at which all issues other than the appellant’s claimed age shall be at large before substituting a fresh decision to allow or to dismiss the appeal.”

Senior Immigration Judge Southern’s reasons for deciding that Immigration Judge Cameron had made an error of law were as follows:

“4. The Immigration Judge allowed the appeal because he found the appellant to be a credible witness and so accepted that he and his mother had been targeted by the authorities in Afghanistan in their search for weapons thought to be in the area. But in reaching that conclusion the immigration judge either failed to engage with the issues raised by the respondent at all or failed to give clear, sustainable and evidence based reasons for finding them not made out. It was not sufficient for the immigration judge, when considering some of these apparently significant inconsistencies, to say simply that the appellant’s young age and the fact that he found him to be a credible witness were reason to resolve these matters in issue between the parties in the appellant’s favour. Nor was ambiguity a sufficient basis, when the evidence itself is examined, to explain away such difficulties in the appellant’s evidence. 5. It is submitted on behalf of the appellant that as the immigration judge found the appellant to be credible it is appropriate to “read into” the determination the written evidence offered by the appellant on the basis that this must have been accepted by the immigration judge as credible and true also. If that is done the answer to the points not addressed in the determination are to be found. But the difficulty is that is precisely because the immigration judge did not provide adequate reasons for rejecting the challenges raised to the appellant’s credibility that his conclusion that the appellant is a credible witness whose account is to be accepted is not sustainable. 6. In any event it is far from clear that the answers to the credibility challenges raised by the respondent are all there to be found. Ms Pickup, who appeared as counsel for the appellant, submits correctly that the immigration judge was not required to deal with every aspect of the evidence before him. But he was required to make clear why he resolved important matters in dispute between the parties as he did, those matters being at the core of the issue to be determined. 7. The failure of the immigration judge to do so amounted to an error of law.”

[16]In response to a submission on behalf of the Appellant that the grounds for reconsideration were concerned only with a challenge to the assessment of risk on return, Senior Immigration

Judge Southern said in paragraph 9 of his decision:

“But the grounds for reconsideration were not so limited. They challenge the whole basis of the appellant’s claim that he was of adverse interest to the authorities at all.”

The Appellant’s submissions

[17]On behalf of the Appellant Mr Middleton submitted that:-(1) The Respondent’s application for reconsideration did not seek reconsideration on the ground that Immigration Judge Cameron had not provided adequate reasons for rejecting the Respondent’s challenges to the Appellant’s credibility.

(2) Senior Immigration Judge Nichols did not order reconsideration on that ground.

(3) Senior Immigration Judge Nichols ordered reconsideration not because of a lack of reasons for the finding in paragraph 57 of the 2008 Determination, but because it was arguable that “following on” from that finding (as to what had occurred in the past), proper reasons may not have been given for the conclusion in paragraph 59 that the Appellant continued (in 2008) to be at real risk on return.

(4) If paragraph 59 was read in the context of the 2008 Determination as a whole adequate reasons had been given for the conclusion in paragraph 59.

(5) Senior Immigration Judge Southern had not decided that there was a material error of law in the 2008 Determination on the ground which Senior Immigration Judge Nichols had decided was arguable (para (3) above).

(6) Senior Immigration Judge Southern had decided that there was a material error of law for an entirely different reason, which had not been raised in either the Respondent’s application for reconsideration or Senior Immigration Judge Nichols’ reasons for ordering reconsideration, namely a failure by Immigration Judge Cameron to give adequate reasons for rejecting the Respondent’s challenges to the Appellant’s credibility.

(7) Senior Immigration Judge Southern did not identify any exceptional circumstances which justified the re-opening of this credibility issue.

(8) In any event, Immigration Judge Cameron had given adequate reasons for rejecting the Respondent’s challenges to the Appellant’s credibility.

The Respondent’s submissions

[18]On behalf of the Respondent, Mr Sachdeva took issue with all of these submissions. In response to submission (7) he emphasised that the “normal rule” that save in exceptional circumstances any reconsideration would be confined to the matters on which reconsideration had been ordered was a matter of practice, not jurisdiction: see NJ (Iran) v Secretary of State for the Home Department

[2008] EWCA Civ.77

at para.15, per Carnwath LJ. He said that if we did not accept his response to submission (1) – that the Respondent’s application for reconsideration had sought reconsideration on the ground that Immigration Judge Cameron had not provided adequate reasons for his finding that Appellant was a credible witness – the first occasion on which it would have been suggested that this was a material error of law in the 2008 Determination would have been during the course of oral submissions before Senior Immigration Judge Southern.

Discussion

[19]I have set out the material part of the Respondent’s application for reconsideration in paragraph 13 (above). The application should be read in a common-sense manner bearing in mind the factual context in which it was being made. The Respondent had disbelieved the Appellant’s account because she considered that it was “incredible”. After hearing the Appellant give evidence Immigration Judge Cameron had been satisfied that he was a credible witness and that the core of his claim was true (para.11 above). In these circumstances, if there was to be any complaint by the Respondent as to the adequacy of Immigration Judge Cameron’s reasoning on this issue of credibility one would have expected it to be spelt out in very clear terms in the Respondent’s application.

[20]Mr Sachdeva submitted that the Respondent’s challenge to Immigration Judge Cameron’s conclusion as to credibility was included within paragraph 2 of the grounds in which it was submitted that Immigration Judge Cameron had “erred in his findings of fact and has therefore erred in his assessment of the risk to the appellant on return to Afghanistan”. This submission ignores the opening words of paragraph 2:

“For this reason”, i.e. for the reason set out in paragraph 1 of the grounds. There was only one ground on which the application was made. Paragraph 2 is not a free-standing ground; it adds nothing of substance to paragraph 1. Mr Sachdeva also referred to the summary description of Ground 1: “The Immigration Judge has failed to give adequate reasons for his findings on material matters”

. Such a bare assertion would not have identified any arguable error of law. The Senior Immigration Judge deciding whether to order reconsideration would have had to ask the question: in respect of which findings has the Immigration Judge failed to give adequate reasons? The answer to that question is to be found in paragraph 1 of Ground 1 which does not criticise Immigration Judge Cameron’s finding of credibility.

[21]In his Skeleton Argument Mr Sachdeva submitted that the identification of risk on return as an error of law:

“necessarily involved an assessment of whether there had been any previous persecution. A central aspect of whether there had been previous persecution, and also whether there was likely to be any current adverse interest from the authorities was the appellant’s credibility (which had been hotly contested throughout the hearing before Immigration Judge Cameron).”

An allegation that there has been an error of law in an Immigration Judge’s conclusion that there is a present risk on return may include a challenge to the Immigration Judge’s approach to past persecution, but it need not necessarily do so. The Secretary of State may accept the Immigration Judge’s conclusion that there was persecution in the past, but contend that this conclusion did not justify a finding of a continued, or present risk of persecution.

[22]On a fair reading of the Respondent’s application for reconsideration, bearing in mind, in particular, the fact that the credibility of the Appellant’s account of past events had been hotly contested by the Respondent throughout the hearing before Immigration Judge Cameron, the material error of law alleged by the Respondent was not Immigration Judge Cameron’s failure to give adequate reasons for his finding that the Appellant’s account of events in the past was credible, but his failure to give adequate reasons as to why his acceptance of the Appellant’s account of those past events had led him to the conclusion that the Appellant would now (in 2008) be at risk on return.

[23]That was the view of Senior Immigration Judge Nicholas when ordering reconsideration (para.14 above). The reasons for ordering reconsideration do not suggest that there is arguably any lack of proper reasoning for Immigration Judge Cameron’s finding in paragraph 57 of the Determination: that the Appellant had been truthful as to what had occurred in the past. Immigration Judge Nichols ordered reconsideration on a relatively narrow ground: that “following on” from the (unchallenged) finding in paragraph 57 as to past events there were no proper reasons for Immigration Judge Cameron’s conclusion in paragraph 59 that the Appellant continued to be at risk from the authorities in his home area in 2008..

[24]Mr Sachdeva did not submit that Senior Immigration Judge Nichols’ reasons for ordering reconsideration could somehow be construed as including the proposition that it was arguable that Immigration Judge Cameron had failed to give adequate reasons for rejecting the Respondent’s challenge to the Appellant’s credibility if, properly understood, the Respondent’s application had not sought reconsideration on that ground. Reading the application for reconsideration and Senior Immigration Judge Nichols’ response it is plain, in my judgment, that the Respondent did not seek, and Senior Immigration Judge Nichols did not order, reconsideration on that ground. The Appellant’s submissions (1) – (3) are correct.

[25]I will deal with submission (4), whether adequate reasons were given for the conclusion in paragraph 59 as to present risk, below (see paras.38-43). On a literal reading of Senior Immigration Judge Southern’s reasons for concluding that there had been a material error of law (paras.15 and 16 above) there is some force in Mr Middleton’s submission (5), that the only material error of law identified by Senior Immigration Judge Southern was Immigration Judge Cameron’s failure to give adequate reasons for rejecting the challenges to the Appellant’s credibility (see paras.4-7 of Senior Immigration Judge Southern’s Determination), and not the error of law which Senior Immigration Judge Nichols had thought was arguable. Mr Middleton submitted that in paragraphs 8 and 9 of his decision Senior Immigration Judge Southern was merely responding to the submission made on behalf of the Appellant that the grounds for reconsideration were concerned only with risk on return and did not extend to Immigration Judge Cameron’s finding of credibility. He did not conclude that there was a material error of law in Immigration Judge Cameron’s assessment of the risk on return.

[26]In my judgment, such a pedantic approach to Senior Immigration Judge Southern’s decision would be no more appropriate than a pedantic approach to the 2008 Determination. Determinations should be read as a whole, and in a common-sense manner, always bearing in mind the fact that (with the exception of Country Guidance cases) they are addressed not to the world in general, but to the parties who will be familiar with the factual context in which the appeal has been heard. Applying this approach to the decision of Senior Immigration Judge Southern I would reject the Appellant’s submission (5). However, for the reasons given above I accept the Appellant’s submission (6). Senior Immigration Judge Southern ordered reconsideration not merely on the ground which Senior Immigration Judge Nichols had identified as arguable, but also on a wholly new ground which had not been raised prior to the hearing on 2nd December 2008: the adequacy of Immigration Judge Cameron’s reasons for rejecting the Respondent’s challenge to the Appellant’s credibility. That extension of the scope of the reconsideration, if justified, necessarily meant that there had to be a completely fresh hearing at which all matters other than the Appellant’s age would be at large.

[27]Even though the rule relied upon in the Appellant’s submission (7) is one of practice not jurisdiction, the practice is well established: “[T]he whole process [of reconsideration] is going to be limited in the normal case to the grounds on which the first judge has ordered reconsideration, which in themselves, in the normal case, will be limited to those on which reconsideration has been sought. I accept as Latham LJ makes clear that is not mandatory in the sense that, no departure is possible. But, as he says, that should be very much the exception.” per Carnwath LJ at para.22 of HS (Afghanistan) v Secretary of State for theHome Department

[2009] EWCA Civ.771

, applying DK Serbia v Secretary of State for the Home Department

[2006] EWCA Civ.1747

[2008] 1 WLR 1246

per Latham LJ at para.21.

[28]In HF (Algeria) v Secretary of State for the Home Department

[2007] EWCA Civ. 445

Carnwath LJ pointed out the two factors which underlie this new approach:

“One is efficiency, the other fairness. On the one hand, the approach gives effect to the policy objective “to streamline the overall appellate process”.... On the other, the appellant should not be subjected without good reason to the stress and uncertainty of a new hearing on an issue on which he has succeeded.”

It is important that the practice is followed in a consistent manner by the Tribunal. The parties preparing for a first stage reconsideration are entitled, at least in the absence of any prior indication to the contrary from the Appellant, to prepare their submissions on the basis that the subject matter of the reconsideration will be limited to the ground or grounds on which reconsideration has been ordered. Any other approach, allowing an Appellant to raise, without any prior notice to the Respondent or the Tribunal, further alleged errors of law, even including matters which had not been raised in the grounds for reconsideration, would be most prejudicial to the Respondent (more often than not the Secretary of State), who would either have to prepare submissions for the first reconsideration stage on a “defensive” basis, covering all possible criticisms of the Determination including matters not previously raised in the application or the order for reconsideration, an inefficient and wasteful process; or face the risk of being “ambushed” by a new point which might result in the Determination being unfairly set aside.

[29]In the present case Senior Immigration Judge Southern did not identify any reason, other than his own view that Immigration Judge Cameron’s reasons for rejecting the Respondent’s credibility challenge were inadequate, for widening the scope of the reconsideration so as to put credibility, once again, at large. Mr Sachdeva submitted that this was an exceptional case because the discrepancies between the different versions of events which the Appellant had given had not been adequately reconciled “and it would be wrong as a matter of principle to permit such a clear error of law to have stood.” If the error of law was so clear it is surprising that it was not raised in either the Respondent’s application or the order for reconsideration. In any event, a submission that inadequate reasons have been given for a finding (whether positive or negative) as to credibility is relatively commonplace in proceedings before the Tribunal, and is very far from being an exceptional circumstance. For these reasons I accept the Appellant’s submission (7).

[30]Turning to submission (8), I have set out the relevant passages in the 2008 Determination in paragraphs 4-11 above. Immigration Judge Cameron clearly gave anxious and detailed consideration to the question of credibility. Mr Sachdeva did not criticise the manner in which Immigration Judge Cameron:(1) Summarised the reasons why the Respondent had rejected the claim as incredible;

(2) Summarised the Appellant’s cross-examination on those issues;

(3) Considered credibility in the context of section 8 of the 2004 Act; and

(4) Recorded the Respondent’s submissions as to why, in the light of the Appellant’s oral evidence, an adverse credibility finding should be made.

[31]Mr Sachdeva conceded that all of the five discrepancies particularly relied upon by the Respondent at the hearing, and the other two discrepancies referred to in the decision letter were at least considered by Immigration Judge Cameron. Thus, in the order in which the discrepancies are summarised in the Determination (see para.4 above), Immigration Judge Cameron gave specific consideration to each of them in the following paragraphs of the Determination:- [1] Did the problems with the authorities start only after the Appellant’s father’s death? (para.52) [2] Were his mother’s ribs broken by the authorities before or after his father’s death? (para.53) [3] How was he informed of his father’s death? (para.54) [4] Were there three or ten visits by the authorities after the father’s death? (para.52) [5] How was the $6,000 obtained by his mother? (para.55) [6] Concealing evidence from the interviewing Officer. (para.35) [7] Would his father have worked for the Taliban? (paras.47-51)

[32]In respect of some of these paragraphs Mr Sachdeva submitted that Immigration Judge Cameron had not made any finding of fact, he had merely set out the Appellant’s responses to the alleged discrepancies. That submission is based on a failure to read the Determination as a whole, and in particular Immigration Judge Cameron’s conclusion in para.56 of the Determination that in the light of the objective evidence he was satisfied that the Appellant was a credible witness. The question as to when the Appellant’s problems began was closely linked to the question as to the number of visits by the authorities after the Appellant’s father’s death. On a fair reading of the decision letter as a whole, including the Appellant’s answers to the points put to him in cross-examination and Immigration Judge Cameron’s conclusion that he was a truthful witness, Immigration Judge Cameron accepted that the authorities first visited the house around 2001 looking for his father, and after his father’s death they visited three times.

[33]Immigration Judge Cameron was entitled to conclude that the discrepancy (if there is a discrepancy, the answer in the interview is ambiguous) as to whether the Appellant’s mother was injured prior to or after the Appellant’s father’s death did not go to the core of the Appellant’s claim. In reaching that conclusion he was entitled to take into account that the Appellant was only 16 years old when he was questioned. Having set out the full version of the Appellant’s answer in interview as to how he was informed of his father’s death Immigration Judge Cameron was entitled to accept his explanation. In cross-examination the Appellant had said that there had been a mistake by the interpreter on this issue (para.22 of the Determination). That explanation is supported by the full, typed version of his answer referred to by Immigration Judge Cameron in paragraph 54 of the Determination.

[34]Since the Appellant was relying on his mother for an explanation as to how she had obtained the $6,000, and his belief was not that she had obtained that sum in two days, but that it may have come from money given to her by his father when he visited, Immigration Judge Cameron was entitled to make no adverse credibility finding on this issue. Mr Sachdeva’s submission that Immigration Judge Cameron had failed to deal with discrepancy [6], concealing information from the interviewing officer, is simply wrong. Immigration Judge Cameron dealt with this discrepancy in paragraph 35 of the Determination (para.6 above). Having done so, he was not obliged to repeat that conclusion at some later stage in his reasoning.

[35]In response to Respondent’s submission that it was not credible that the Appellant’s father would have worked for the Taliban given the relationship between the Hazara and the Taliban, Immigration Judge Cameron referred to the objective evidence which confirmed that the Taliban had targeted the Hazaras, but he also set out a passage in a Human Rights Watch Report which recorded an alliance between the leader of a local faction in Hazarajat and the Taliban (para.47 Determination). He then referred to the Appellant’s statement in interview that his father had been forced to join the Taliban and had assisted them in order to prevent bloodshed among the Hazaras (paras.50 and 51 Determination). Mr Sachdeva submitted that although Immigration Judge Cameron had cited a passage in the objective evidence which might have made the Appellant’s evidence on this issue plausible rather than implausible, Immigration Judge Cameron had not expressly concluded that it was plausible that the Appellant’s father would have worked for the Taliban. Again, this plucks out passages in the Determination and interprets them both literally and in isolation, and ignores both Immigration Judge Cameron’s conclusion in paragraph 56 that in the light of the objective evidence the Appellant was a credible witness, and his conclusion in paragraph 57 that the Appellant’s father had been forced to fight for the Taliban in order to protect his home area from being targeted by them.

[36]Although Mr Sachdeva disavowed a “nit picking” approach to Immigration Judge Cameron’s reasoning on the credibility issue, it seems to me that the Respondent’s criticisms of the reasoning the 2008 Determination are a prime example of such an approach, and are the antithesis of the correct approach to an Immigration Judge’s reasoning in a Determination:

“This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

Secretary of State for the Home Department v AH (Sudan)

[2007] UKHL 49

, per Lady Hale at para.30; see also XL (China) v Secretary of State for the Home Department

(2010) EWCA Civ.575

, per Jackson LJ. at paras.27-30.

[37]For these reasons I accept the Appellant’s submission (8): Although the Determination might have been more felicitously expressed, Immigration Judge Cameron’s reasoning on the issue of credibility was not so deficient as to amount to an error of law.

[38]That leaves the Appellant’s submission (4). When deciding whether Immigration Judge Cameron sufficiently explained why his conclusion in paragraph 59 as to present risk followed on from his finding as to past events in paragraph 57, it is important to bear in mind the factual background to the appeal, which would have been well understood by both parties. The Appellant had claimed that his father had been killed in or about September 2007, and that the authorities were targeting him and his mother as recently as October 2007. I will deal with the nature of the targeting below (paras.40 and 41). It was not being alleged by the Respondent that if the Appellant’s father had been killed, or if the family had been targeted, the killing or the targeting had occurred prior to September/October 2007. Nor was it being alleged by the Respondent that there had been such a lapse of time, or change of circumstances since the events in September/October 2007 (if they occurred) that the situation at the time of the appeal hearing on 1st September 2008, less than a year later, was materially different.

[39]The Respondent’s Skeleton Argument reflected the way in which the case appears to have been argued before Immigration Judge Cameron. It was not contended that, if Immigration Judge Cameron had given adequate reasons for believing the Appellant’s account, either:(a) the targeting of the family as described by the Appellant did not amount to persecution in September/October 2007; or

(b) if there was persecution in September/October 2007 there had been such a lapse of time or change of circumstances that there was no continuing risk of persecution in September 2008. In these circumstances, having found that there were substantial grounds for fearing persecution in September/October 2007 no further reasoning was required for Immigration Judge Cameron’s conclusion that less than a year later the Appellant “could not obtain protection in his home area as he was wanted at risk from the authorities themselves”.

[40]The decision letter did give three reasons why the Appellant could safely return to Afghanistan even if his claim was believed. It is not clear whether the Respondent pursued before Immigration Judge Cameron the contentions in the decision letter that any threats to the Appellant and his family were made by rogue agents and not the Afghan authorities, and that the Appellant would not be at risk on return because his father had helped to save the lives of Hazaras. There is no record of these points being made in cross examination or submissions. The Respondent’s case at the hearing would appear to have been confined to a challenge to the credibility of the Appellant’s account. In any event, Immigration Judge Cameron accepted the Appellant’s evidence that, after his father’s death at the hand of the authorities, he and his mother were targeted by the authorities. He did not find that those targeting the Appellant and his mother were rogue agents, and it follows from his acceptance of the Appellant’s account of his father being killed and thereafter of him and his mother being targeted by the authorities, that the fact that the Appellant’s father had been trying to save the lives of Hazaras had not been sufficient to remove any risk to the Appellant. Immigration Judge Cameron dealt with the only remaining issue raised by the Respondent if the Claimant’s account was accepted – internal relocation – in paragraphs 60-62 of his Determination.

[41]That leaves a criticism of the 2008 Determination which was raised during the course of submissions, but not in the Respondent’s Skeleton Argument, that Immigration Judge Cameron had not made sufficient findings of fact in paragraph 57 of the Determination as to the nature of the targeting by the authorities of the Appellant and his family. In my view, it is not surprising that Immigration Judge Cameron felt it unnecessary to make such findings. As I have indicated above, at no stage of the proceedings did the Respondent suggest that if the Appellant and his mother were targeted after his father’s death, that targeting was of a different character to that described by the Appellant, e.g. a lawfully conducted investigation of a possible criminal offence with a view to prosecution. Nor was it suggested by the Respondent that if the Appellant’s account was believed, the targeting by the authorities did not amount to persecution. The background to the targeting of the family in October 2007 was the killing of the Appellant’s father by the authorities about a month earlier. The Appellant had described how, after his father’s death the authorities had come to the family house and questioned him and his mother because the authorities believed that they had information as to the whereabouts of his father’s guns and ammunition. The Appellant adopted his written Statement as part of his evidence. In that Statement he had alleged that the authorities beat him and his family and threatened that if they did not reveal the location of the weapons the Appellant and his family “would be taken away” (paras.17 and 18 of the decision letter). Although it was submitted by the Respondent that the Appellant’s account of the “targeting” should be disbelieved because of the discrepancies referred to above, including the time when his mother was injured, it was not being submitted by the Respondent that if the core of the Appellant’s account was believed the “targeting” was not persecutory, e.g. that no violence had been used or no threats had been made against the family.

[42]For the sake of completeness, the reference in paragraph 57 of the Determination to the authorities targeting the Appellant and his mother “as they believed there may be guns in the area” is not, when the Determination is read as a whole, a finding that the authorities targeted the family merely because they believed that there might be guns somewhere in the area. It is an acceptance of the Appellant’s account that the authorities were targeting the family because they believed that the family knew the whereabouts of the Appellant’s father’s guns, and having killed his father they wished to find his guns.

[43]For these reasons I accept the Appellant’s submission (4). If paragraphs 57 and 58 of the Determination are read in the context of the 2008 Determination as a whole, and against the background of the way in which the parties were putting their cases to Immigration Judge Cameron, adequate reasons were given for Immigration Judge Cameron’s conclusion as to risk on return.

Conclusion

[44]I would allow the appeal, set aside the 2009 Determination and restore the 2008 Determination.

[45]I have had the benefit of reading in draft the judgment of Lord Justice Pill, and I am in agreement with both him and Lord Justice Sullivan save on the one issue on which there is a difference of opinion between them, namely whether Immigration Judge Cameron made an error of law in failing to give adequate reasons for his inclusion in paragraph 59 of his determination about risk on return. The relevant part of the determination is set out in paragraph 11 of the judgment of Lord Justice Sullivan. What Immigration Judge Cameron held was that the appellant had “therefore” shown substantial grounds for fearing persecution for a Convention reason, namely imputed political opinion, and that the appellant could not obtain protection with in his own area as he was at risk from the authorities themselves (determination, para.59). Thus, reasons were given for this conclusion, namely risk from the authorities themselves. The issue is their adequacy. Senior Immigration Judge Nichols considered that there was inadequate reasoning (see para.14 above). We must decide whether he was correct in law in this.

[46]In a normal situation, the authorities would not present a risk to a law-abiding citizen. But in this case, the evidence accepted by the Immigration Judge was that the appellant and his mother were after the father's death "targeted by the authorities as they believed there may be guns in the area." The respondent argued in his grounds for seeking reconsideration of the decision of Immigration Judge Cameron's decision that there was no evidential basis for this conclusion on targeting after the father's death, because it was not the appellant, but his father, who had been associated with the Taliban. Senior Immigration Judge Nichols in my judgment rightly rejected that submission. But the finding of Immigration Judge Cameron is significant because it pinpoints the cause of the authorities’ concern. It was about guns, and not about support by the father or anyone else for the Taliban.

[47]Since Immigration Judge Cameron found that there was targeting after the father’s death because of the concern about guns, he must have concluded that the authorities believed that the appellant or his mother was or might be able to provide information about guns, presumably the guns which is father knew about, or access to, while working for the Taliban. The Immigration Judge made no distinction between the appellant and his mother in this. While there was a substantial issue as to the appellant's credibility, there was no challenge to his version of events on the basis that his mother was the person targeted and not himself. This analysis is relevant to the conclusion on risk. In considering the adequacy of the reasoning of Immigration Judge Cameron on risk on return, we must focus on how he saw the case and the sequence of his reasoning.

[48]Bearing that last point in mind, in my judgment, it is clear from the structure of the reasoning that the conclusion on risk follows from the conclusion in paragraph 57 about targeting after the death of the father. The necessary implication is that the Immigration Judge saw the one as following from the other, that is, that the fact of targeting over information about guns would lead to the presence of a real risk to safety on return.

[49]However, the appellant also had to show that the persecution was for a Convention reason. Immigration Judge Cameron held that there was imputed political opinion. But it does not follow and it is not a necessary implication from the fact that the authorities were searching for guns or information about guns that they were imputing any political opinion to the appellant. The more obvious inference is that they were acting in order to remove weapons from the potential grasp of the Taliban and to promote law and order. Immigration Judge Cameron has simply failed to articulate why, if the authorities were looking for guns or information about them, they were also treating the appellant as if he were a supporter of the Taliban. Clearly, they could be interested in information about guns without treating the appellant as a Taliban supporter even some time after the father’s death since the information might still be of value to them.

[50]Accordingly, I agree with Lord Justice Pill that Senior Immigration Judge Nichols was correct to conclude that there was an inadequacy of reasoning on risk on return. I further agree that this issue should be remitted to the tribunal. As to credibility, I consider that the finding of Immigration Judge Cameron on this should not be disturbed with respect to the findings he made. Otherwise, remittal would have the unfair effect of giving the respondent a second bite at the cherry on such matters. But, as recognised by the formulation of submission (7) of the appellant, which Lord Justice Sullivan has accepted, that does not mean that the appellant would necessarily be held to be credible for the purpose of any further findings. On the other hand, there would have to be a proper explanation for any different conclusion on credibility.

[51]I agree that the focus in this appeal needs to be on the procedure which led to the 2009 determination and to the lawfulness of the 2008 determination. The 2009 determination is comprehensive and well reasoned but can stand only if there was an error of law in the 2008 determination and if the procedure which led to the 2009 determination was lawful.

[52]In the 2008 determination, Immigration Judge Cameron held, at paragraph 59, that “the appellant has shown substantial grounds for believing that he feared persecution for a Convention reason namely an imputed political opinion”. He was “at risk from the Authorities [in Afghanistan] themselves”. That finding followed a detailed consideration of the appellant’s credibility, which had not been accepted by the Secretary of State in the decision letter dated 20 March 2008. In an application by the Secretary of State for a reconsideration, it was submitted “that the Immigration Judge has materially erred in his assessment of whether the appellant would be at risk on return to his home area”. Reference was made to the death of the appellant’s father and it was submitted:

“The appellant was not personally involved in the Taliban and it is not clear on what evidence the Immigration Judge relies on when finding the appellant would be of interest to the Authorities in his home area on account of his family connection with his father, who is now dead. For this reason, it is submitted that the Immigration Judge has erred in his findings of fact and has therefore erred in his assessment of the risk to the appellant on return to Afghanistan.”

[53]The challenge to the finding of risk on return was central to that application and was adopted by Senior Immigration

Judge Nichols when ordering a reconsideration:

“It is arguable in my view that the Immigration Judge may not have given proper reasons for his conclusion at paragraph 59 that the appellant would continue to be at risk from the authorities in his home area as a result of his [father’s] former association with the Taliban. The Immigration Judge has not adequately and properly explained, following on from his finding at paragraph 57, why the appellant faces a real risk on this account now.”

That puts the point clearly. What was in issue was whether the conclusion at paragraph 59, already cited, “followed on” from the findings at paragraph 57 cited by Sullivan LJ at his paragraph 11. In written submissions on behalf of the appellant, it was not suggested that a challenge on that basis was out of order.

[54]At the first stage reconsideration hearing on 2 December 2008, before Senior Immigration Judge Southern, a much broader view was taken. Emphasis was placed on whether the appellant was credible. Directing a second stage consideration, the judge stated:

“The Tribunal shall consider the evidence afresh at a hearing at which all issues other than the appellant’s claimed age shall be at large before substituting a fresh decision to allow or to dismiss the appeal.”

[55]I can follow that to assess risk on return it is necessary to re-analyse the evidence of the appellant in the context of risk and to decide whether it sufficiently provides a basis for a finding of risk of persecution on return. That should, however, have been done on the basis that the appellant was credible, a finding to that effect having been made in the 2008 determination. That issue should not have been re-opened (HS (Afghanistan) v Secretary of State for the Home Department

[2009] EWCA Civ.771

and HF (Algeria) v Secretary of State for the Home Department

[2007] EWCA Civ.445

, per Carnwath LJ, cited by Sullivan LJ at paras.27 and 28). It was, in my judgment, an error of law to permit “all issues” to be raised at the second stage reconsideration.

[56]Subject to the issue considered below, I would allow the appeal on that ground to the extent of ordering a reconsideration based on whether, on the appellant’s evidence, assessed in the light of the in-country evidence, a risk of persecution on return has been established.

[57]That, however, only arises if there was an error of law in the 2008 determination. That determination was dominated by the issue of the appellant’s credibility. There were serious inconsistencies and discrepancies in the accounts given by the appellant at different stages and the Immigration Judge was plainly concerned to justify a finding of credibility in the appellant’s favour, in the face of the Secretary of State’s views and notwithstanding the oddities and inconsistencies in the appellant’s accounts. Immigration Judge Cameron, as the tribunal of fact, was entitled, in my view, to make a finding in favour of the appellant on credibility and that finding did not amount to an error of law. It was sufficiently reasoned.

[58]As I read the judgment of Sullivan LJ, we are so far agreed:(a) Immigration Judge Cameron’s reasoning on the issue of credibility was not so deficient as to amount to an error of law (Sullivan LJ para.37, my para.57).

(b) Senior Immigration Judge Southern erred in law in directing that at the second stage reconsideration “all issues other than the appellant’s claimed age should be at large” (Sullivan LJ paragraph 15, 26 last sentence, and 29, my paras.54 and 55).

(c) At the second stage reconsideration, it was appropriate to consider risk on return (appellant’s submission 3, Sullivan LJ para.17 and para.26, my para.53).

[59]Where I respectfully disagree with Sullivan LJ is as to whether Immigration Judge Cameron erred in law in his conclusion at his paragraph 59 that the appellant continued to be at risk from the authorities.

[60]Where his determination fails, in my judgment, is in the absence of sufficient findings of fact to justify a conclusion of risk on return. The need for findings of fact is fundamental to the jurisdiction of the Tribunal. It does not necessarily follow from a finding of credibility that the appellant would be at risk on return. It was necessary to assess his evidence, and the weight to be given to the component parts, in order to assess, in the context of Afghanistan, whether a real risk of persecution on return had been established.

[61]The Immigration Judge found that the appellant’s father had at an earlier stage fought for and assisted the Taliban and had been killed. It was not found that he himself had been involved with the Taliban and, as Sullivan LJ has found at paragraph 14, it has never been suggested that the appellant himself had been associated with the Taliban.

[62]The findings in the 2008 determination demonstrate that the lawful authorities are pursuing the Taliban, and there can be no doubt about that. The Immigration

Judge recorded, at paragraph 29:

“The appellant was asked why the authorities would think he or his family would know anything about weapons if that was the case. He said that because of his father’s activities with the Taliban in terms of weapons the authorities thought that he may have some knowledge.”

That leads to a general statement in paragraph 57:

“I also accept that the appellant and his mother were then targeted by the authorities as they believed there may be guns in the area.”

Beyond that, with respect, there is a conspicuous lack of findings of fact, as distinct from references to the different accounts of the appellant for the purpose of assessing credibility, in the 2008 determination. The authorities were investigating whether there were “guns in the area” associated with the Taliban. They and their weapons, are of course being pursued in Afghanistan and not only by the Afghan authorities but by British and Allied Forces.

[63]It does not necessarily follow from such activity by the authorities that investigations with those who have, or may have, information about such weapons are being persecuted. The circumstances may in particular cases justify a finding of persecution, but there are no sufficient findings of fact in this case to draw that conclusion. Moreover, there is no finding to justify, and it was not argued, that a political opinion was imputed, as stated in paragraph 59.

[64]I do not regard it as pedantic to look for findings of fact in the decision of a fact finding Tribunal. Lady Hale’s comments in Secretary of State for the Home Department v AM (Sudan)

[2007] UKHL 49

, at paragraph 30, explained that the specialist tribunals “alone are the judges of the facts” and make “their decision on those facts”. There is nothing in her speech to discourage them from finding facts, indeed rather the contrary.

[65]Credibility is of course the necessary starting point but what is decisive, when assessing future risk, is to make such findings of fact as are held to follow from the finding of credibility, and then to make an assessment of risk. A general finding of targeting by the authorities who believed that “there may be guns in the area” of which the appellant “may have some knowledge” does not in itself justify a finding of a risk of persecution by the Afghan authorities. No sufficient reason is given for the finding at paragraph 59 because there are no sufficient findings of fact on which it could be based.

[66]For that reason, the 2008 determination was, in my judgment, erroneous in law. The need for a further reconsideration by the Tribunal is, of course, most unfortunate, but the correct course is in my view to allow the appeal and to remit the case for further consideration of the risk of persecution by the authorities on return.

[67]The starting point for the assessment of risk is, as already stated, that the appellant has been found to be credible but it is necessary to re-analyse the evidence in the context of risk in the manner I have described and to decide whether it sufficiently provides a basis for a finding of risk of persecution on return. I understand Arden LJ to agree with that. As Arden LJ states, the credibility of any fresh evidence which the appellant may give in relation to risk will need to be assessed in the context of earlier evidence, and such findings of fact as there were. The Tribunal’s task in such circumstances may be a difficult one but the Tribunal can be expected to approach it in a fair and appropriate way.

[68]I would allow the appeal and remit the case to the Tribunal on that basis.

Cited in 1 later judgment

ZY (Turkey) v Secretary of State for the Home Department 2011