Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/02328/2015

THE IMMIGRATION ACTS

Heard at: Manchester
Decision & Reasons Promulgated
On: 5th September 2016
On: 29 September 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Hussain Ahmed Hamad
(no anonymity direction made)
Appellant
and

The Secretary of State for the Home Department
Respondent

For the Appellant: Mr Nicholson, Counsel instructed by Broudie Jackson & Canter
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a national of Iraq, born on the 1st January 1979.
Background and Matters in Issue
2. The Appellant arrived in the United Kingdom in 2007 and claimed asylum. That claim was rejected and he became 'appeal rights exhausted'. A subsequent set of representations was accepted by the Respondent to constitute a fresh claim for asylum albeit that they were again rejected. It was the Appellant's appeal against that refusal which led to these proceedings.
3. The First-tier Tribunal (Judge Nicol) did not accept that the Appellant faced a well-founded fear of persecution in Iraq today, for any of the reasons advanced on his behalf. The appeal was therefore dismissed, by way of decision promulgated on the 12th May 2015.
4. The Appellant was granted permission to appeal to the Upper Tribunal and on the 24th May 2016 Upper Tribunal Judge Coker made findings on whether the decision of Judge Nichol contained material errors of law. In brief summary Judge Coker rejected all of the Appellant's grounds of appeal bar one. She accepted that the First-tier Tribunal had not given adequate consideration to the Appellant's personal profile in its assessment of risk of return. He is a Sunni Kurd from Kirkuk. Kirkuk is a "contested area" and following the decision of the Upper Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) it would have to be accepted that there pertains a current risk of indiscriminate harm to him as a result of internal armed conflict in that area. Article 15(c) of the Qualification Directive being engaged by possible return to Kirkuk the question was whether it would be unduly harsh for the Appellant to be returned to Baghdad, the place of proposed return. It was the Respondent's case that if the Appellant could not return to Kirkuk he could relocate to the city. Judge Coker found that the Tribunal had failed to consider the Appellant's personal profile in addressing that question. This was an error of law. She directed that the decision in the appeal would need to be re-made to that extent. To this end the matter has now been re-listed before me1.
The Appellant
5. The Appellant's profile, agreed between the parties, is as follows:
Speaks Sorani, little Arabic
Sunni Kurd
No evidence to indicate that he has any family or connections to Baghdad
Two sisters believed to be in Kirkuk, no contact with them since 2007
Parents deceased
Unmarried
Healthy
Male
Aged 39
Undocumented (no passport, current or expired, no other identity documents of any kind). All documents taken by agent in 2007
Been in UK since November 2007
Formerly a member of the Iraqi Army
The Evidence & Country Guidance
6. The relevant country guidance is AA. On the issue of internal flight the Tribunal summarised its guidance at paragraph 15 of the headnote:
"In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs."
7. In its assessment of point (a) the Tribunal conducted a careful analysis of the jurisprudence on the question of documentation. Having done so it found:
"170. In the absence of an expired or current Iraqi passport, a person can only be returned to Baghdad using a laissez-passer. According to Dr Fatah, either a CSID or INC or a photocopy of a previous Iraqi passport and a police report noting that it had been lost or stolen is required in order to obtain a laissez-passer. If a person does not have one of these documents then they cannot obtain a laissez-passer and therefore cannot be returned. This has a significant bearing on what we have just said. If the position is that the Secretary of State can feasibly remove an Iraqi national, then she will be expected to tell the tribunal whether and if so what documentation has led the Iraqi authorities to issue the national with the passport or laissez passer (or signal their intention to do so). The Tribunal will need to know, in particular, whether the person concerned has a CSID. It is only where return is feasible but the individual concerned does not have a CSID that the consequences of not having one come into play."
8. As to the practicalities of obtaining a CSID the Tribunal heard evidence from Dr Fatah that it is possible in some circumstances to obtain a card from the embassy in London. If that is not possible, another option would be to appoint a proxy in Iraq to apply for one for you in your home state:
"177. In summary, we conclude that it is possible for an Iraqi national living in the UK to obtain a CSID through the consular section of the Iraqi Embassy in London, if such a person is able to produce a current or expired passport and/or the book and page number for their family registration details. For persons without such a passport, or who are unable to produce the relevant family registration details, a power of attorney can be provided to someone in Iraq who can thereafter undertake the process of obtaining the CSID for such person from the Civil Status Affairs Office in their home governorate. For reasons identified in the section that follows below, at the present time the process of obtaining a CSID from Iraq is likely to be severely hampered if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring."
9. The reasons for those latter difficulties are explained at paragraphs 179-183:
"179. Dr Fatah in his most recent report indicates that the starting position is that in order to obtain a new or replacement CSID a person usually had to return to the governorate where his or her birth was registered and where the primary family registration book is held i.e. in the local population registration/civil status office. He went on to explain that there are 300 population registration offices in Iraq which are responsible to a central Civil Status Affairs Directorate.
180. Births are registered manually in volumes held at these local population registration offices and these offices are responsible for checking the manual register before issuing a CSID. They also send information on to the central population registry in Baghdad. USAID Iraq told Dr Fatah that the central population registry/central archive is not a searchable data base. Instead a "search of the central archive needs an officer to open doors (literally or metaphorically). The search must be done by a government official - members of the public cannot search through the "central archive". The key issue is whether the official is willing to do the search - or can be made willing. In addition, the individual would need to know his volume and page numbers or the official would have to trawl through a given governorate's entire archive of back-up files. As a consequence, if an individual does not have his volume and page number his only option will be to locate a close family member with the same details and hope that an official will assist him.
181. There is also some doubt as to whether a CSID could be handed over to anyone but the individual whose details it contained, even if an individual did hold a power of attorney. In addition, if the person is outside Iraq the details of an individual's CSID would have to be sent to him and he would have to ask the Iraqi Embassy to send any application for a CSID through the Ministry of Foreign Affairs to Iraq. The Ministry of the Interior would then need to issue the CSID and send it to the Ministry of Foreign Affairs who would send it back to the Iraqi Embassy in London.
182. UNHCR-Iraq told Dr Fatah that there is no database or any electronic system in place to issue CSIDs. Scanned copies of local paper records are archived in the General Directorate of Civil Status Affairs in Baghdad. Having discussed the situation with Landinfo Dr Fatah concluded that registration is undertaken in the local area and that the Civil Status Affairs Directorate or central population registry in Baghdad does not generally issue CSIDs.
183. This is confirmed to some extent by the fact that the Iraqi government has set up two Alternative Civil Status Affairs Offices to issue CSIDs to IDPs from governorates which have been captured by ISIL. One office has been set up in Najaf to issue copies of CSIDs archived from Mosul, and another office has been set up in Baghdad to issue copies of CSIDs to individuals from Anbar and Salahaddin. These offices are only authorised to issue CSIDs to IDPs from these governorates.
184. Dr Fatah was further informed by a source at the Norwegian Refugee Council that the Ministry of the Interior had refused to open up more Alternative Civil Status Affairs offices so as to protect civil records from fraud, to protect confidentiality and to avoid duplication, as there was no database or electronic system.
185. UNHCR-Iraq provides some support to those without a CSID through its Protection, Assistance and Re-integration Centres ("PARC"), but such support is limited to providing guidance and legal advice on required procedures and documents needed to obtain a CSID. It did not issue these or other documents itself. It also confirmed that Harikar and Qandil [8] have indicated that they do not issue CSIDs. The Norwegian Refugee Council told Dr Fatah that there is a network of legal aid clinics in Iraq, which is funded as part of USAID's Iraq Access to Justice Programme. They also provide legal advice, but do not issue CSIDs.
186. Drawing all of this together we conclude that an Iraqi national should as a general matter be able to obtain a CSID from the Civil Status Affairs Office for their home Governorate, using an Iraqi passport (whether current or expired), if they have one. If they do not have such a passport, their ability to obtain a CSID may depend on whether they know the page and volume number of the book holding their information (and that of their family members). Their ability to persuade the officials that they are the person named on the relevant page is likely to depend on whether they have family members or other individuals who are prepared to vouch for them.
187. An Iraqi national's ability to obtain a CSID is likely to be severely hampered if they are unable to go to the Civil Status Affairs Office of their home Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which a person could apply for formal recognition of identity. The precise operation of this court is, however, unclear."
10. In respect of access to accommodation the Tribunal had regard to figures produced by the International Organisation for Migration. These showed that the majority -60%- of internally displaced persons (IDPs) drawn to Baghdad were hosted by family members already established in the city. Figures released in April 2015 show that over 167,000 IDPs were renting in the city. The Tribunal conclude from this [at 198] that this would tend to indicate that some people are managing to earn enough money to pay rent. In terms of employment prospects, men are generally better placed than women, and political or family connections are important in gaining employment, particularly in the public sector, the government being the largest employer in the country [190]. The Tribunal concludes:
"202. It is clear from the evidence before us that Arabic speaking males with family connections to Baghdad and a CSID are in the strongest position. At the other end of the scale, those with no family connections in Baghdad who are from minority communities and who have no CSID are least able to provide for themselves. There are a wide range of circumstances falling between these two extremes. Those without family connections are more vulnerable than those with such connections. Women are more vulnerable than men. Those who do not speak Arabic are less likely to be able to obtain employment. Those from minority communities are less likely to be able to access community support than those from the Sunni and Shi'a communities.
203. On the evidence before us, whilst we accept that for a person who has no family or other support in Baghdad and who also does not have a CSID, and cannot obtain one reasonably soon after arrival, it would be unreasonable and unduly harsh to relocate to Baghdad, for the generality of Iraqis, despite difficulties that may be experienced in respect of such matters such as access to health care, education and jobs, we consider that relocation to Baghdad is safe and not unreasonable or unduly harsh - one reason being that a person can only be returned to Baghdad if such person has a current or expired Iraqi passport or a laissez-passer."
11. In addition to the findings in AA, I was asked to consider the latest Country Information and Guidance issued by the Respondent, in August 2016: Iraq: Return/Internal relocation (Version 3.0 August 2016). I have done so, and find nothing therein is in contradiction to the 2015 findings made in AA. In particular it is accepted that a person from Kirkuk would find it difficult to access his local government office in order to get an identity card that would enable him to access services.
My Findings
12. The Appellant does not have a current or expired Iraqi passport. Nor does he have a CSID. Nor can he produce a police report confirming that any of these documents have been lost or stolen. It has been his evidence, since he claimed asylum in 2007, that all of his identity documents were taken by the agent who arranged his illegal passage across Europe. He has not married and so has no marriage certificate. I am satisfied that in those circumstances, having had regard to Dr Fatah's accepted evidence in AA, that it will not be possible for the Appellant to obtain a replacement CSID from the embassy in London. I have considered whether it would be possible for him to appoint a proxy in Iraq who would be able to go to the office in Kirkuk and make an application for him there. I consider that option to have only slim chances of success. The Appellant has no living relatives in Iraq apart from possibly his sisters, but he has had no contact with them since 2007. He has not been to the country himself for 9 years. Even if there was a friend whom he could contact, it seems extremely unlikely that such a friend would agree to enter the contested area of Kirkuk in order to make the application. As the Tribunal in AA make clear, it would not be possible for the Appellant to make his application in Baghdad. I therefore start from the premise that the Appellant will not have a CSID upon return to Baghdad. This is an important document, enabling the holder to access a variety of services. This would be the Appellant's first difficulty.
13. Add to this the fact that the Appellant is not from Baghdad. He has no connections there. I see from his asylum interview that many years ago he spent three years in an army camp just outside Baghdad, but on his evidence they were rarely allowed off base to venture into the city. He has hardly even visited it. He speaks only very basic Arabic and avers that he could not hold a conversation in that language. Although is a healthy and relatively young man, I bear in mind what the Tribunal in AA found in respect of employment prospects for IDPs. With no connections, no identity documents and poor language skills it is difficult to see how the Appellant would manage to obtain employment of a sufficiently well paid or regular nature to enable him to secure accommodation.
14. On those facts the Appellant falls at the wrong end of the spectrum posited in AA. The only matters in his favour are his gender and the fact that he is not of minority faith. As the country guidance makes clear, those factors are not in themselves sufficient safeguards against the hardships that the Appellant would likely face in Baghdad. I find that he would not be able to live anything like a 'normal' life in Baghdad, and that it would be unduly harsh to expect him to relocate there. It follows that the appeal must be allowed on humanitarian protection grounds.
Decisions
15. The determination of the First-tier Tribunal contains an error of law such that it was set aside to the limited extent identified by Judge Coker in her error of law decision.
16. I remake the decision as follows:
The appeal is dismissed on asylum grounds.
The appeal is dismissed on human rights grounds.
The Appellant is entitled to humanitarian protection because his removal would lead to a breach of Article 15(c) of the Qualification Directive. The appeal is allowed on that basis.
17. There is no order for anonymity.

Upper Tribunal Judge Bruce
26th September 2016