Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/02454/2015
AA/02449/2015
AA/02455/2015
AA/02456/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 September 2016
On 13 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAMBERLAIN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HA
WN
DA
SA
(anonymity direction MADE)
Respondents

Representation:

For the Appellant: Ms J. Isherwood, Home Office Presenting Officer
For the Respondent: Mr. R. Halim, Counsel instructed by TRP Solicitors

DECISION AND REASONS

1. By way of a decision promulgated on 28 April 2016, the decision of the First-tier Tribunal promulgated on 11 May 2015 was set aside to be remade.

2. For the purposes of this appeal I refer to the Secretary of State as the Respondent, and to HA, WN, DA and SA as the Appellants, reflecting their position as they were before the First-tier Tribunal.

3. There is an anonymity direction in place, which I have continued.

The hearing

4. I heard oral evidence from the first and second Appellants. The second Appellant was assisted by the interpreter, Ms A. Elshami, who confirmed before proceeding that they both fully understood each other. Both representatives made oral submissions.

5. I have taken into account the documents in the Respondent's bundle, the Appellants' bundle (to Tab D, page 314), the expert report dated 16 September 2016, the letter from the third Appellant's school, documents provided by the first Appellant at the hearing, and Mr. Halim's skeleton argument.

6. Ms Isherwood provided a copy of the Country Information and Guidance Iraq: Return/Internal relocation, August 2016, the Country Information and Guidance Iraq: Security situation in the "contested" areas, August 2016, and the Country Information and Guidance Iraq: Religious minorities, August 2016.

7. At the end of the hearing I reserved my decision which I set out below with reasons.

Preliminary issue

8. In the error of law decision the findings in relation to the Appellants' previous residence in Sulymaniyah were preserved. It was submitted by Mr. Halim that evidence before the First-tier Tribunal had not been taken into account, and additionally there was further evidence, which had not been before the First-tier Tribunal, which showed that the Appellants were living in Sinjar province during the material period. I was referred to paragraph 10(ii) of the skeleton argument. There was also evidence relating to the use of agents' addresses for the purposes of the first Appellant's student visa application.

9. Given that there was now evidence before me that the Appellants had been resident in Sinjar, I stated that I would reopen this issue and that the findings in relation to the Appellants' previous residence in Sulymaniyah would not be preserved. Ms Isherwood confirmed that she was content with this, and would address this issue in her submissions.

10. It was agreed that the sole issue before me was whether or not it was reasonable for the Appellants to return to the Kurdistan Regional Government area (the "KRG").

Findings and reasons

11. I found the Appellants to be honest and credible witnesses who answered all questions put to them and were not evasive. Both Appellants were cross examined at some length, in particular the first Appellant, and I found the core of their evidence to be consistent with each other and to be consistent with the documentary evidence. I did not find there to be any inconsistencies of any significance which went either to the core of the evidence, or to the issue before me, namely reasonableness of return to the KRG. Neither had the Respondent suggested prior to the remaking hearing that the Appellants were not credible.

12. In particular, I did not find there was any inconsistency in the evidence regarding the language spoken by third Appellant. The first Appellant said that she spoke very little Kurmanji, and the second Appellant said that she herself spoke Kurmanji at home. There is no inherent inconsistency here and, in any event, the language spoken in the KRG is not Kurmanji, but Sorani.

13. I found the evidence regarding the contact that the first Appellant had had with his friend in Iraq to be consistent. In his witness statement, paragraph 7, he said that he had called his friend, with whom he had had contact sometime previously when "he had called me from Iraq" (B2). This was consistent with his evidence at the hearing that his friend had first called him asking him about life outside Iraq, and that the Appellant had later called him when he was seeking a letter confirming his residence in Sinjar. I found his evidence at the hearing to be consistent with the evidence given in his witness statement.

14. Ms Isherwood suggested that it was implausible the first Appellant's sister had been able to call the first Appellant after she had been "captured" by Daesh. However, it is more accurate to say that Daesh had taken control of the area, rather than that she had been "captured, and I find it is plausible that she had her brother's telephone number, given that he had left for the United Kingdom to study, and therefore in no rush. It is understandable that she would have wanted to call her brother to tell him what had happened to the family.

15. Taking all of the Appellant's evidence into account, I find that there were no inconsistencies of any significance between the evidence given at the hearing and the evidence in the witness statements. I find that I can rely on the evidence of the Appellants.

Previous place of residence

16. It is the Appellants' evidence that they never lived in Sulymaniyah but that they only lived in Sinjar. It was due to the address given on the visa application form for the first Appellant, and the fact that the third Appellant had been born in the KRG, that the Respondent considered that the Appellants had lived in Sulymaniyah prior to coming to the United Kingdom.

17. In support of their claim to have lived in Sinjar and not Sulymaniyah, the Appellants provided the first Appellant's membership card for the "Lalish Cultural & Social Center", Shingal branch issued on 12 May 2007, expiry 12 May 2009, and a membership card for the "Shingal Cultural And Social Center" dated 1 June 2005 (B17 -B18). They provided a power of attorney given by the first Appellant's father dated 5 July 2009, allowing him to access his father's bank account in Sinjar (B12-B14).

18. The Appellant also provided a letter from the Nineveh Provincial Council dated 10 May 2016 (B19-B21). This stated that the first Appellant was born in the Sinjar area and was resident there until the beginning of 2011. This letter was examined by Mr. Sheri Laizer in his expert report. At paragraph 1(xvi) he sets out his qualifications and expertise in undertaking authentication of documents, and on pages 10-12 gives his opinion on the document. He concludes that the documents is genuine because of its "physical appearance, professional presentation, language and non-self-serving brevity". He states that the logo is correct and that the document shows signs of having been handled.

19. I find that Mr. Laizer has experience in the authentication of documents. I find that he has carefully examined the document and given reasons for his findings. I find that his evidence can be relied on. I find on the balance of probabilities that this document is genuine and corroborates the Appellants' claim that they lived in Sinjar until they came to the United Kingdom.

20. I was also referred to evidence which had been before the First-tier Tribunal in the form of the Appellants' food ration card (C5-C6). This indicated that in 2014/2015 the first Appellant was issued with a ration card to be used at the supply centre in Sinjar.

21. The second Appellant gave evidence in her witness statement regarding the birth of the third Appellant [5] and [6]. She was born in Sulymaniyah owing to the fact that she was in the breach position. She gave evidence that they stayed for only one day and then returned to Sinjar. At the hearing the first Appellant said that they had had to go to the KRG for the birth of the third Appellant as there was no maternity hospital in Sinjar, only a small clinic which could not cope with a breach birth. He gave evidence that they had paid for this care in a private hospital. The following day, as they did not have a sponsor, they had had to leave the KRG.

22. I found the evidence of the Appellants to be consistent. I find on the balance of probabilities that the third Appellant was born in the KRG, and that the Appellants stayed there for only one night, returning to Sinjar on the following day.

23. It is the first Appellant's evidence that he used an agent when making his student visa application which is why the address on his application form was in Sulymaniyah. At the hearing he provided evidence relating to an application that he had made to Nottingham University at the same time as he had applied to Harper Adams. The letter was addressed to the Appellant "next to Khabat News Paper, 40 M Street, Ronaki District, Erbil" (C22). The Appellant provided a printout from the Nottingham University website showing that the university's overseas representative in Iraq is the Lano Center for Educational Studies. While the Nottingham University website did not give an address for the Lano Center, the Appellant provided evidence that this agency is used by other universities for example, Sheffield Hallam and South Wales, and their websites give the address for the Lano Center as "Next to Khabat News Paper, 40 M Street, Ronaki District, Erbil". I find on the balance of probabilities that the Appellant was not living at the address given on the letter addressed to him from Nottingham University but that this was the address of an agent. I find that this corroborates the Appellant's claim that the address on the visa application form was the address of the agent he used to make the application to Harper Adams. I find that the first Appellant was not living at the address he gave to Nottingham University and I find on the balance of probabilities that he was not living at the address used in association with his application to Harper Adams.

24. As stated above, I found the Appellants to be credible witnesses. I found the evidence regarding the third Appellant's birth in the KRG credible. I find that the evidence of the Appellants is corroborated by the documentary evidence provided, in particular the letter from the Nineveh Provincial Council, on which I can rely. I find that there was evidence before the First-tier Tribunal of the Appellants' residence in Sinjar in the form of the ration card. I find on the balance of probabilities that the Appellants did not live in the KRG prior to coming to United Kingdom, but that they lived in Sinjar province.

Sponsorship by the KRG

25. It is the first Appellant's evidence that, while he was initially sponsored by the KRG, this sponsorship was withdrawn. I was referred to evidence which was before the First-tier Tribunal consisting of two lists entitled "the final list of candidates for human capacity programme for studying PhD in agriculture field" (C7-C10). The first is dated 2010, and indicates that the first Appellant is an accepted candidate. The second is dated 2011 and indicates that the first Appellant is an unacceptable candidate. It states "after checking the results Hadi's name has been deleted from the list of accepted and another name has been added because Hadi's score was less than the other."

26. The first Appellant gave evidence that he was given a support letter by the KRG which was sent with his application, but that after he had arrived in the United Kingdom his support letter was cancelled. He provided his bank statements as evidence that he did not receive any money from the KRG (C11 to C27). These bank statements do not have any transfers from the KRG. However the Appellant said at the hearing that he had another bank statement, which evidence he had provided to his representatives, but which was not before me.

27. However, notwithstanding the failure to provide statements for both accounts, I found the first Appellant to be a credible witness and I find, taking into account the evidence of the first Appellant and the corroborative evidence, that he did not receive the promised sponsorship from the KRG, but that his father paid for his studies.

28. I find therefore that the Appellants have never lived in the KRG, and that the first Appellant's sponsorship by the KRG was withdrawn so that he has not had any financial support from the KRG. The Respondent accepted in the reasons for refusal letter that the Appellants were Yazidis, and that they were born in Nineveh. I therefore find that, were the Appellants to be returned to the KRG, it would not be a situation where they were returning to a place where they had previously lived, and where they had contacts and support. They have no familial support. I therefore find that they would be in the same situation as any other internally displaced persons ("IDP") of the Yazidi religion relocating to the KRG. It is accepted by the Respondent that the Appellants cannot be returned to any other area in Iraq.

Reasonableness of returning the Appellants to the KRG

29. I was referred to the UNHCR report entitled "Relevant COI for Assessments on the Availability of an Internal Flight or Relocation Alternative (IFA/IRA) for Yazidis in the Kurdistan region of Iraq (KR-I)". This states:
"In light of massive new internal displacement coupled with a large-scale humanitarian crisis, mounting sectarian tensions and reported access restriction, particularly into the Kurdistan Region of Iraq, UNHCR does in principle not consider it appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight or relocation alternative." (D242)
30. I have taken into account all of this report, and I do not intend to set it out in full here. In relation to the position of Yazidis it states:
"Where an IFA to the KR-I is proposed for Yazidi applicants, it should be noted that the majority of Yazidis present in the KR-I find themselves in a situation of internal displacement, in often precarious living conditions and with no or limited access to livelihood opportunities." (D243-D244)
31. In relation to the problems of shelter in the KRG it states:
"Pressure on the existing housing market is high, and rents have increased in light of heightened demand. IDPs are reported to be forced to move between districts and shelters in search of cheaper housing. Furthermore, available housing often does not provide adequate living conditions, as many are unfurnished, dilapidated and overcrowded. Many IDPs have been displaced for over a year and their coping capacity is reportedly diminishing. Many IDPs are thus increasingly unable to pay the increasing rents, putting them at risk of eviction and renewed displacement. IDPs who cannot afford rent are seeking shelter in camps, however many camps are full and there are waiting lists to move into camps." (D244)
"Furthermore, close to 109,000 IDPs are recorded as living in critical shelter arrangements such as informal settlements, religious buildings, schools and unfinished or abandoned buildings. Those living in critical shelter arrangements are often deprived of access to adequate water, electricity and sanitation. The lack of adequate shelter has reportedly led to loss of lives due to adverse weather conditions." (D244)
32. In relation to food security it states:
"More than 765,000 persons in KR-I are estimated to require food assistance; however, the Public Distribution System (PDS) is reportedly not fully functioning and many IDP families reportedly do not have access to their food rations in the place of displacement. Recent cutbacks in food vouchers are expected to further worsen food insecurity." (D245)
33. I have also taken into account the Country Information and Guidance Iraq: Return/Internal relocation, August 2016. At paragraph 2.2.12 it states:
"It is unlikely that non-Kurds from outside of the KRI will be able to relocate there. The UT held that: '...we do not consider that, as a general matter, relocation to the IKR [for non-Kurds] is a reasonable proposition. The risk of being turned away at the point of entry is significant, unless a person has connections with people in the IKR' (paragraph 172)."
34. I have found that the Appellants do not have any connections with the KRG, and so I find that the Respondent's own guidance, following the country guidance from the Upper Tribunal, indicates that relocation to the KRG for the Appellants would not be reasonable.

35. I have also considered the evidence in the bundle referred to in the skeleton argument at paragraph 17, which largely predates the UNHCR report. This includes evidence from the US Department of State entitled "2014 country reports on human rights practices; Iraq 24 June 2015" referring to the harsh living conditions faced by IDPs in the KRG. It includes evidence of the "spread of transferable diseases and infestation" in the camps where Yazidis are living (D118). It includes evidence of the overcrowding in the KRG and the pressure on resources, including education (D192).

36. I have also considered the expert report. This was not referred to in submissions by Mr. Halim, given his reliance on the UNHCR report referred to above. I have considered the experience and expertise of Mr. Laizer, and I find that his evidence can be relied on. He quotes from the ACAPS (Assessment Capacities Project) report from August 2016, which states that "the KRG has said that it will not allow any more IDPs to enter its cities, instead containing newly displaced populations at camps along its borders."

37. I place considerable weight on the evidence from the UNHCR, which is clear that it does not consider it appropriate for states to deny protection to individuals from Iraq on the grounds that they can relocate to the KRG. The UNHCR evidence of the situation in the KRG is consistent with the other background evidence provided which details the ongoing and worsening problems in the KRG. The Respondent's own guidance issued in August 2016 accepts that relocation to the KRG is unlikely to be reasonable. I have also taken into account the evidence of Mr. Laizer.

38. I find that the first and second Appellants would be returning with their three young children, the third Appellant who is eight years old, the fourth Appellant who is three years old, and their son, born since the asylum claim was made, who is two years old. I find that the Appellants would be unable to support themselves, with limited or uncertain access to permanent shelter and food, as shown by the evidence referred to above. I find, taking into account all of the evidence, and placing considerable weight on the evidence of the UNHCR, that it would not be reasonable to expect the Appellants to relocate to the KRG, and that it would be unduly harsh to expect them to do so.

39. I therefore find that the Appellants have demonstrated that they are in need of international protection, and so their claims succeed on asylum grounds.

Notice of Decision

The appeals are allowed on asylum grounds.

Direction Regarding Anonymity - 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 Date 12 October 2016

Deputy Upper Tribunal Judge Chamberlain