Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00467/2016

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 9 March 2017
On 3 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

Z. A.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Cole, Solicitor, Parker Rhodes Hickmotts Solicitors
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom using his own valid Iraqi passport and entry clearance granted to him as a student, on 20 June 2014. His leave to enter expired on 20 December 2014.
2. The Appellant claimed asylum on 16 August 2014, on the basis that he was a Sunni Arab from Mosul an area that had fallen under the control of ISIS. His application was refused on 12 December 2014, and a decision to refuse to vary his leave to remain was made in consequence. The Appellant’s appeal to the Tribunal against that decision was heard and dismissed by decision of Judge Duff promulgated on 10 February 2015 [H4-].
3. The Appellant’s appeal rights in relation to that decision were exhausted on 26 June 2015 following the refusal by Upper Tribunal Kekic of permission to appeal in the following terms;

The judge considered all the evidence. He was however entitled to find that there was not such a level of indiscriminate violence in Baghdad as to put him at risk and there was nothing about his personal situation or profile that would cause him to be at risk over and above anyone else in that city. Full reasons are set out in paragraphs 18-22. The judge also considered the risk to the appellant as a Sunni Arab. He was entitled to find that despite the discrimination by the government of Sunni Arabs, the appellant had been selected for a substantial scholarship by the government and that it was likely that the government would want to obtain some benefit from its investment in him by giving him work.

4. The Appellant then made further representations to the Respondent on 18 July 2015 and on 3 August 2015, which were accepted as amounting to a fresh claim to protection. This fresh claim was then in turn refused on 7 March 2016. The Appellant’s appeal to the Tribunal against that decision was heard and dismissed by decision of Judge Wylie promulgated on 6 October 2016. In the course of that decision the Judge recorded that the parties accepted the sole ground of appeal pursued before him was that of humanitarian protection, and that the sole issue was whether the Appellant could reasonably be expected to relocate within Iraq to Baghdad [8].
5. The Appellant’s application to the First Tier Tribunal for permission to appeal was refused by Judge Parkes on 3 November 2016 on the basis that he was a single educated male with a valid passport, who had received the assistance of a friend based in Baghdad, and that it had been open to the Judge, who had properly applied the guidance to be found in AA (Article 15(c)) Iraq CG [2015] UKUT 544 to find that he could not be expected to return to Mosul because of the ongoing internal armed conflict affecting that area, but that he could reasonably be expected to relocate in safety to Baghdad. The grounds were described as no more than a disagreement with that conclusion.
6. The Appellant renewed his application for permission to appeal to the Upper Tribunal, and it was granted by Deputy Upper Tribunal Judge Taylor on 19 December 2016 in the following terms;

The original and renewed grounds make a series of challenges to the judge’s conclusions in respect of the viability of the appellant’s relocation to Baghdad, it being accepted that he could not return to his home area of Mosul.

7. The Respondent filed a Rule 24 Notice dated 6 January 2017 in which she argued that the Judge’s decision correctly applied the country guidance to the issue of internal relocation to Baghdad since although the Appellant is accepted as a Sunni Arab from Mosul, there is a sizeable Sunni population in Baghdad.
8. Further country guidance in relation to the risks faced by those returning to Iraq was issued by the Upper Tribunal in the decision of BA (returns to Baghdad) Iraq CG [2017] UKUT 18 promulgated on 23 January 2017.
9. Thus the matter comes before me.

Error of Law – failure to deal with asylum?
10. Before me Mr Cole (who did not appear below) argued that the Appellant had pursued both asylum, and, Article 3 grounds of appeal before the Judge, and that the Judge had erred in failing to consider and deal with them. He argued that the decision [8] misrepresented the Appellant’s case before the Tribunal.
11. I am unable to accept that argument. This was not the basis of the grant of permission to appeal, and it was not the basis of the challenge to the Judge’s decision that is set out in the grounds which I note were drafted by Counsel who appeared below. Once I pointed this out to him, Mr Cole accepted that he was in some difficulties in advancing that argument, although he was not disposed to abandon it. In the circumstances I reject this argument.

Error of Law – humanitarian protection - internal relocation?
12. Mr Cole accepts that the Appellant’s return to Iraq is feasible because the Respondent holds the Appellant’s genuine Iraqi passport, which does not expire until 3 April 2017, and so he accepts that the Appellant could be returned to Baghdad travelling upon it.
13. Mr Cole also accepts that if his other argument relating to asylum fell away (as above) that the Judge was correct to identify that the appeal turned upon the issue of internal relocation. He argued that the Judge failed to deal adequately with the objective evidence placed before him, when dealing with whether it was reasonable to expect the Appellant to relocate to Baghdad to avoid the risk posed by the state of ongoing internal armed conflict in his home area of Mosul, which evidence the Respondent accepted before me, had all been before the Upper Tribunal in BA.
14. It was not however suggested that the Judge had failed to correctly identify the following material facts [10-13]. The Appellant was born in Baghdad, but moved to live in Mosul with his family at the age of eleven. He grew up there, and attended and graduated from the University of Mosul where he had studied for a PhD in plasma physics. He was awarded a government scholarship to study for six months in the UK at the University of York, and whilst in the UK, ISIS took control of Mosul. His parents and siblings were living in a refugee camp controlled by Kurdish peshmerga situated between Mosul and Erbil, although the family are ethnically Arab and not ethnically Kurdish.
15. Mr Cole also accepted that there was no challenge to the Judge’s finding that the Appellant is a fluent Arabic speaker, and that he would be able to obtain the issue of a CSID given held a valid Iraqi passport [55]. The Judge accepted the Appellant’s evidence that he had no family members living in Baghdad, but noted that he was in contact with a friend who had been able to assist him in obtaining government documents relating to the current status of his academic sponsorship [58]. The Judge accepted that the Appellant was currently suspended academically by the Iraqi authorities for failure to declare his legal position regarding his research scholarship (presumably that relates to his failure to disclose his immigration status within the UK). There is no challenge to the Judge’s finding that the Appellant would be able to make representations to the Iraqi government, and given the support he had previously enjoyed it would indicate that he was a valued student, and thus have at least the opportunity to study elsewhere and to continue his research after his return to Iraq [59].
16. The grounds offer no challenge to the Judge’s rejection of that part of the Appellant’s evidence which concerned his claim that his elderly father had travelled from the refugee camp to Baghdad and had been refused permission (on behalf of himself and his family, including the Appellant) to enter, or to settle in Baghdad.
17. The Judge’s conclusion was that as a well educated and well qualified young man it was likely the Appellant would be able to find employment to support himself [60]. He also noted the presence of the Appellant’s friend in Baghdad who had been able and willing to assist him by securing documents to confirm his current academic status [58]. He concluded that even without family connections in Baghdad the Appellant was likely to be able to make links within the academic community and within the Sunni community [63]. He concluded that the Appellant could seek to live in a predominantly Sunni area within Baghdad and that there was nothing to show that he would be at particular risk as a target of sectarian violence were he to live in a mixed Shia/Sunni area. He concluded that an individual was not at risk simply because of his Sunni faith [61].
18. The Upper Tribunal concluded in BA (as did the Judge in this appeal) that there were a significant minority of Sunnis still living in Baghdad. The incidents of targeted violence against Sunnis were not of such a persistent or widespread nature to create a real risk of harm by virtue of a person’s Sunni identity alone. They were however more likely to be viewed as suspected supporters of Sunni insurgent groups, and the incidents of kidnapping and killing of Sunnis in Baghdad largely involved young men targeted by the Shia militias in revenge for ISIS attacks within the city [118].
19. The Upper Tribunal went on to note the presence of a large number of checkpoints within Baghdad all manned by Shia militias, and concluded that there was a reasonable degree of likelihood that a young Sunni man would be stopped at a checkpoint on a fairly regular basis in the ordinary course of his daily life. Whilst it was not considered a sufficient factor on its own to mean the individual faced persecution or a breach of their Article 3 rights, this would enhance the risks posed merely by his Sunni identity [119 & 121]. Moreover the Appellant would return to Iraq as one who had lived in the UK for three years, and was highly educated; it was therefore entirely plausible on the Upper Tribunal’s approach that he might be perceived as from a “relatively wealthy” background and thus worthwhile kidnap target. Again, whilst the risk from this alone would not be high, it would also enhance the risks he faced [116].
20. The grounds assert that the Judge failed to have due regard to the background evidence relevant to the following issues;

(i) the targeting of Sunnis particularly those from ISIS controlled areas by Shia controlled militias
(ii) the expulsion of Sunnis from those residential areas within Baghdad previously that were previously mixed Shia/Sunni
(iii) the need for an IDP from an ISIS area to have a sponsor in Baghdad before they would be permitted to settle there
(iv) the inability of Sunnis to secure employment
(v) the inability of Sunnis to secure accommodation

21. In the light of the guidance to be found in BA Mr Cole also argued before me that the Appellant faced a risk of kidnap for ransom as one who may be perceived to be a returnee from Europe and thus with access to funds.
22. Mr Cole also argued that the Appellant was in a far more vulnerable position upon return than the applicant in BA. He accepted that there was no reason to suppose that the Appellant would be perceived as a former employee of a western based NGO, but argued that this was irrelevant since as indicated in BA #114, that was a risk factor when considering the risk to an individual posed by Sunnis extremists, rather than the risk to a Sunni individual from Shia militias who in reality controlled life in Baghdad.
23. In my judgement Mr Cole’s argument came at times very close to misrepresenting the guidance to be found in BA as being simply that it is unsafe for any Sunni to be returned to Baghdad. That was not in my judgement the view of the Upper Tribunal.
24. On the other hand there is obvious merit in the underlying argument that is open to the Appellant that if it was correct to assess the applicant in BA as facing a real risk of harm upon return to Baghdad then it must upon the same objective evidence be unreasonable to expect this Appellant to relocate to Baghdad, when his own personal circumstances as determined by the Judge would on any view be significantly weaker than that other individual. He has no family in Baghdad and he has not lived in the city since early childhood. He has no relative in current government employment, even if it were correct to assume that he would have the prospect of reviving his academic studies or persuading the authorities to put him into government employment in order to recoup some of their considerable investment into him.
25. Looking at the situation holistically I am satisfied that there was a material error of law in the Judge’s approach to the objective evidence that was placed before him. That being so the parties are agreed that I should set aside the decision upon the humanitarian protection appeal, and remake it, so as to allow the appeal on that ground.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 6 October 2016 contains error of law in the decision to dismiss the Appellant’s humanitarian protection appeal which requires that decision to be set aside and remade, and I do so, and allow the humanitarian protection appeal.

Direction regarding anonymity – Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Deputy Upper Tribunal Judge JM Holmes

Dated 20 March 2017