Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00680/2015
AA/00681/2015

THE IMMIGRATION ACTS

Heard at Columbus House, Newport
Decision and Reasons Promulgated
On 7 July 2016
On 28 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

A S A A
m w a j
(ANONYMITY DIRECTION MADE)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Grubb, instructed by Duncan Lewis Solicitors
For the Respondent: Mr Richards, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellants are nationals of Iraq. Their applications for asylum and humanitarian protection were refused by the Respondent on 11 December 2014. They appealed against the decision to refuse them leave to enter under section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). Their appeals were dismissed by First-tier Tribunal Judge Trevaskis in a decision promulgated on 19 January 2016. They sought permission to appeal to the Upper Tribunal which was granted on 22 March 2016 by First-tier Tribunal Judge Simpson.

2. The grounds seeking permission to appeal are that the Judge erred by failing to consider the personal risk to the Appellants, given the increased sectarian violence in Baghdad after June 2014, and, in particular, his finding at [70] that the Appellant would be perceived to be a Sunni Muslim; that the Judge erred by relying solely on the country guidance cases of AA (Article 15 (c) Iraq CG [2015], particularly as the first Appellant was not relying on a fear of indiscriminate violence; that the Judge erred in finding that the Appellants could relocate to southern Iraq despite his findings that the first Appellant would be perceived to be a Sunni Muslim. Further, the grounds relied on the CIG on Iraq (April 2015) which states that the Southern governorates are predominately populated by Shia Arabs and the OGN reissued in August 2014 which states that it is "not reasonable due to latent or overt tensions between ethnic or religious groups to consider relocation of Sunnis to predominately Shi'ite areas". In granting permission, Judge Simpson considered that it was arguable that the Judge's findings were at odds with his subsequent assessment of risk on relocation and that insufficient weight had been given to the first Appellant's personal circumstances. It was, he considered, also arguable that the Judge made a material error of fact when mistakenly assuming that the Appellants still had family members living in Baghdad.

The Rule 24 Response

3. The Respondent opposed the Appellant's appeal. The Respondent submits that in AA the risk to Sunni Muslims was considered at paragraph 136 and it was stated there "It is rightly suggested that the evidence demonstrates that there is a real risk of Article 15 (c) harm arising solely because a person is a Sunni or Shia civilian in Baghdad and we, in any event, conclude that it does not."

4. It is further submitted that the evidence relied on pre-dates the promulgation of AA and is insufficient to warrant departure from the current country guidance. It is submitted that the Judge would have fallen into error had he failed to have regard to the country guidance case as suggested by the Appellant. It is submitted that the historic evidence relied on in the grounds of appeal does not demonstrate the "strong grounds and cogent evidence" envisaged by the Court of Appeal in SG (Iraq) [2012] EWCA Civ 940 required to justify a departure from the country guidance case law.

The Hearing

5. Ms Grubb relied on the grounds of appeal and skeleton argument. There was a failure by the First-tier Tribunal to consider a personal risk to the first Appellant there having been findings that he was a Sunni Muslim. His case was that there were specific risk to him in the light of his personal circumstances. There were two further points in relation to mistakes of fact. The finding had been made that he was a Sunni Muslim. It was clear from the country guidance that Baghdad was 80% Shia. The case was remitted on the last occasion. If I was minded to allow the appeal it needed to be remitted again.

6. Ms Grubb added that there were two significant mistakes of fact the first being the finding at paragraph 77 of the judgement that related to the question of internal relocation. It was stated that the Appellants had family members in Iraq. That was not correct based on the evidence. The initial evidence was recorded at paragraph 13 where essentially the evidence was the family members were scattered and either had died or were living in Turkey. The oral evidence at the hearing was that there was no family in Baghdad. More significantly at paragraph 69 of the determination there was a finding which infected the decision of a whole. In AA there were a number of paragraphs providing relevant extracts. Baghdad was one of the most dangerous cities on earth. In relation to those perceived as Sunnis paragraph 33 of AA dealt with the Amnesty International report and cited relevant quotations and paragraph 35 was also relevant. There were a number of extracts from background evidence in the grounds of appeal. That mistake of fact clearly infected the entire decision and tied in with the failure to consider personal risk and the issue of relying solely on AA. The decision maker should assess individual characteristics. With regard to internal relocation one of the factors was whether the person was from a minority community. The Judgment went through the Appellant's evidence and rejected his evidence as to what he had experienced but it did not go on to assess the risk on the basis of the findings that had been made which was a material error of law. The need to consider personal risk was highlighted in updated country guidance.

7. Ground 2 set out a lot of different country guidance available at the material time. There was evidence in AA and other evidence in the bundle. In terms of the Respondent's reply, it did not deal with main thrust of grounds of appeal but dealt with the addition of further evidence.

8. Mr Richards submitted that the decision was adequately reasoned. The Judge found the first Appellant not to be credible in relation to what happened in the past and therefore looked at the situation in general and was entitled to rely on AA. The pieces of evidence mentioned in grounds to the Upper Tribunal which were asserted to amount to grounds or reasons for departing from AA as the Rule 24 response noted were evidence that predated promulgation of AA which was 30 December 2015 a short period before this appeal. The First-tier Judge was justified in placing reliance upon AA and again, to rely on the R24 response, AA considered risk to Sunni Muslims and the Tribunal commented that it was not suggested that there is a real risk of 15(c) harm arising. Clearly there was abundant evidence to show all was not well in Baghdad but circumstances had not reached the threshold and given the Judge's rejection of the first Appellant's account the Judge was fully entitled to dismiss the appeal. With regard to internal relocation, whilst the finding was attacked in the grounds what the Judge was doing was considering that issue in the alternative. He found at paragraph 75 that the Appellants would not need to relocate within Iraq but went on to consider whether it was reasonable. The conclusion he reached was adequately reasoned and immaterial given his finding that there was no need for internal relocation. He asked me to find no material error of law and this was a determination that should stand.

9. Ms Grubb submitted that paragraph 136 of AA was specifically about Sunnis and it would be wrong to look at that quote in isolation. Paragraph 69 of the decision also infected the finding on credibility. Whether the account was externally consistent was a relevant factor. The Judge did not have sufficient grasp of circumstances.

Discussion and Findings

10. The first Appellant's account to be at risk of persecution in Iraq was based on two incidents. He claimed to fear the militia groups in Iraq. The first incident allegedly occurred on 17 March 2014 when Shia militants came to his place of work. The first Appellant stated that two cars containing armed men in military uniforms came to the place where he worked looking for his two brothers-in-law. The first Appellant told them that they were not there but one of the uniformed men told him that they knew he was lying and pushed him to the ground, kicked him in the stomach and back and told him that they knew where he lived and intended to take him away, but changed their mind and told him that they would come back to him again. He then closed the business and left the house. After a few weeks he started to work as a taxi driver. He was walking home on 25 June 2014 at 10.30pm when he was stopped by two men who got out of their car and asked him if he was "Ali" and threatened him at gunpoint telling him to leave his home within 24 hours because they claimed that he was a Shia living in a Sunni area.

11. The First-tier Tribunal did not find that the first Appellant had given a credible account. The grounds do not impugn the First-tier Tribunal's findings save for the finding that he had family in Iraq. The First-tier Tribunal assessed the first Appellant's account and found it internally consistent [60]. However, he questioned why the second Appellant did not give evidence given that she could corroborate aspects of the first-Appellant's account. However, he found that it was implausible that the first Appellant would work as a taxi driver in the same area where the first attack had taken place. He did not find it plausible that even if he needed to earn a living he would return to the area of feared religious persecution which was described as a hotbed of militia activity. He further found it implausible that he would receive a threat after three months of working in the area without incident whilst walking home. He found the death certificate of his brother-in-law provided no circumstances of his death or the perpetrator and provided no support for the first Appellant's claim. He also found that the "threatening letter" was not reliable as it was unclear why it was not sent to the first Appellant when the militia knew where he lived and the first Appellant had not explained why it suddenly came to be written after such a long period without any trouble particularly when he had encountered the authors of the letter previously and received no more than a beating before being released and not approached again. He also found that the first Appellant's credibility was damaged by his failure to produce his passport or travel documents and inability to name the transit airport which he visited.

12. The First-tier Tribunal then assessed the Appellant's account against the background evidence from paragraphs 68 to 71 of the decision:
"68. Consistency with country guidance - The first appellant seeks to explain the sudden outbursts of sectarian interest in him by reference to increased violence, both discriminate and indiscriminate. AA (Article 15 (c) Iraq CG [2015] UKUT 00544 (IAC) states:
The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15 (c).
69. The claims of discriminate or indiscriminate violence against the first appellant are not supported by the country guidance.
70. Consistency with background information - the first appellant claims he came from Al Adhamiya; this forms part of the Baghdad governorate; Baghdad is 80% Shia; Al Adhamiya contains a small Sunni enclave. The first appellant says that he is not religious, and his family name is Sunni; his claim to be perceived as Shia, based upon his first name Ali, is implausible, as is his account of being threatened by Sunni militants. He claims to have experienced no problems with either sect until March 2014, and to have left the country in September 2014. I consider that he is likely to be regarded as Sunni, based upon his identity card.
71. There is background information of killings taking place throughout Baghdad; the first appellant claims to have had 2 non-fatal encounters with 2 opposing militant sects; despite claiming to have been made the subject of a documented fatwa, he was able to remain in Iraq, both in and outside Baghdad, before deciding to leave. He undertook taxi driving, which must be regarded as a hazardous occupation for a person who claims to be of active interest to armed militants, and I do not find it plausible that he would have done this in the circumstances he alleges, simply to earn money.
13. Had the First-tier Tribunal rejected the first Appellant's account to have been at risk of persecution from sectarian militia solely on the basis that it was not supported by the country guidance in relation to Article 15 (c) risk that would have been an error of law since the section he quoted relates to the risk of serious harm to civilians irrespective of their individual characteristics. However, it is clear that he did not. It is of note that the First-tier Tribunal recorded at paragraph 31 that he was not referred specifically to any part of the country evidence in the Appellant's bundle. The Appellants rely on information provided by the House of Commons Research paper entitled "Isis and the sectarian conflict in the Middle East (March 2015)" and asserts that the First-tier Tribunal failed to comprehend the situation in Iraq in relation to a sectarian war between Sunni and Shi'ite Muslims, and wrongly determined the Appellants' claim. This evidence was not in the Appellants' bundle nor on is it on the Court file. The Appellants therefore seek to impugn the First-tier Tribunal's findings by reference to material that was not before it. There is also no reference to any background material in the skeleton argument before the First-tier Tribunal. Ms Grubb also did not refer me to any background evidence in the Appellants' bundle that it is said that the Judge should have but did not have regard to.

14. The First-tier Tribunal set out the reports that he was provided with by the Appellants at paragraph 31 of the decision and states that he has regard to the contents in arriving at his decision. That evidence described the sectarian tensions and the threat to the Sunni in Baghdad from the Shia militias. The Judge notes at paragraph 71 that the background evidence supports the claim that there are killings taking place throughout Baghdad. He was clearly aware that the Sunnis were in the minority in Baghdad. He did not reject the first Appellant's claim on the grounds that it was not plausible that he could be a victim of sectarian or religiously motivated attacks. He gave clear and sustainable reasons in paragraphs 60 to 67 and 71, however, for finding that the first Appellant's claim to be subject to such attacks was not credible. Those findings were based on the inconsistency of the Appellant's behaviour and account with his claimed fear of persecution and were open to him on the evidence.

15. It is also clear, as set out by the Respondent in the Rule 24 response, that the Upper Tribunal in AA considered background evidence over the period in which the alleged attacks took place. Ms Grubb referred me to paragraph 33 where the contents of an Amnesty International report dated 14 May 2015 were referred to which stated that "Baghdad city continues to be one of the most dangerous cities on earth, with mass-casualty terrorist incidents perpetrated both by IS supporters and armed militias, as well as kidnappings and murders by such militias against Sunnis, other minority groups and those perceived as likely to be worth ransom money".

16. The Upper Tribunal in AA addressed the risk in Baghdad City at paragraph 118 of the decision. At paragraph 136 the Upper Tribunal stated that there was "rightly no suggestion that the evidence demonstrates that there is a real risk of Article 15 (c) harm arising solely because a person is a Sunni or Shia civilian in Baghdad and we, in any event, conclude that it does not." The hearing in AA took place in May 2015, a year after the alleged events described by the first Appellant and the Tribunal heard expert evidence in relation to the abduction and killing of Sunni civilian men (paragraph 124). Whilst it does not follow from this conclusion that a Sunni civilian could not be persecuted by Shia militia it does follow that Sunni civilians cannot be said on the basis of the country guidance to be persecuted per se.

17. For the above reasons, I find the First-tier Tribunal did not fail to consider the threat of persecution to the first Appellant in light of his personal circumstances and the change in the security situation in Baghdad following the emergence of ISIL. He demonstrably apprehended his personal circumstances and the background evidence and gave sustainable reasons for finding his account not to be credible. I therefore find that his findings in relation to the Appellant's credibility stand. It is not claimed by the first Appellant that he would be at risk on return solely by virtue of being a Sunni civilian in Baghdad and the evidence before the First-tier Tribunal did not support such a finding.

18. The remaining grounds relate to the First-tier Tribunal's findings in respect of internal relocation. Since I have found that there was no error of law in relation to the First-tier Tribunal's finding regarding the first Appellant's fear of persecution in his home area, any error in his findings in relation to internal relocation could not be material. It is clear from paragraph 75 that the First-tier Tribunal took a belt and braces approach to the evidence as he did not need to determine whether it was reasonable for the Appellants to relocate. The grounds assert that the First-tier Tribunal found that the Appellants could relocate to the south of Iraq and that they had family members in Baghdad. However, the First-tier Tribunal neither found that they could relocate to Baghdad, the Appellants' home area, where he had already determined there was no fear of persecution, nor that they could relocate to Southern Iraq nor did he find that the Appellants had family in Baghdad. He found they had family in Iraq which accorded with the evidence recorded at paragraph 13. Further, the evidence relied on in paragraph 11 of the grounds in support of the contention that the Appellants could not relocate to the southern areas of Iraq was not in the Appellants' bundle nor was the argument made either in submissions or in the skeleton argument. Paragraph 53 of the decision specifically records the Appellants' representative's submission that if the Appellants' intended to relocate to the south the risk would be entering through Baghdad. I therefore find that there was no error of law in the decision of the First-tier Tribunal.

Conclusions:
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

I do not set aside the decision.

Anonymity
The First-tier Tribunal made an order and I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008). Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated

Deputy Upper Tribunal Judge L J Murray 28 September 2016