Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/04411/2015

THE IMMIGRATION ACTS

Heard at Centre City Tower, Birmingham
Decision & Reasons Promulgated
On 25 July 2016
On 05 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE L J MURRAY

Between

H H H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Mr J Howard, instructed by Fountain Solicitors
For the Respondent: Mr D Mills, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a nation of Iraq. On 15 February 2015 the Respondent rejected her application to remain in the UK on the basis of asylum and found that her return would not breach her rights under the European Convention on Human Rights (ECHR). The Appellant appealed this decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002 and her appeal was dismissed by First-tier Tribunal Judge A M S Green in a decision promulgated on 5 October 2015. The Appellant sought permission to appeal against this decision and permission was granted on 29 October 2015 by First-tier Tribunal Judge Dineen. He found that the basis of the decisions in relation to the matters complained about was the judge's findings that the Appellant could return safely to her home province where she would have family support. He found that there was an arguable error of law in the decision of the First-tier Tribunal and there were insufficient reasons given for the Judge's finding: "whilst I accept that there may be increased practical difficulties for her family to offer further support I am not satisfied that these are insurmountable obstacles or that they would not be offered".

Grounds of appeal

2. There are eight grounds of appeal. Ground 1 asserts that the First-tier Tribunal misdirected itself in relation to the Refugee Convention in finding that Appellant had been subject to past persecution and that there were no findings to negate this serious indicator of future persecution. Ground 2 argues that there is inadequate reasoning at paragraph 29 of the decision as to why the presence of the Appellant's brother in law would mean that she would have sufficient protection particularly in view of the fact that the expert, Dr George had confirmed that the family would be at real risk. Ground 3 asserts that the Judge made no finding as to whether the Appellant was a member of a social group or as to her credibility. Ground 4 contends that the First-tier Tribunal has not adequately assessed the Appellant's individual characteristics in accordance with Elgafaji (C-465/07) and QD (Iraq) v SSHD [2009] EWCA Civ 620. Ground 5 asserts that the Judge gave no reasons for departing from the expert's findings and did not give any reasons why significant weight could not be attached to the findings of the expert. Ground 6 asserts that the First-tier Tribunal made no findings in relation to the persecutory risk the Appellant faced as a consequence of her religio-political identity. Ground 7 asserts that the Judge gave inadequate reasons in relation to Articles 2 and 3 ECHR and ground 8 asserts that the Judge did not assess credibility and vulnerability in accordance with Presidential Guidelines. It is also asserted that the Judge did not give adequate reasons as to why there would not be very significant obstacles to the Appellant's reintegration into life in Iraq.

The Hearing

3. Mr Howard relied on the grounds of appeal. He submitted that AA (Article 15 (c) Iraq CG [2015] UKUT 0544 (IAC) had not been promulgated at the date of the First-tier Tribunal's decision and it was an error of law to rely on it and not to ask for submissions in relation to it. The Appellant was an individual in respect of whom Dr George made numerous findings. There was no reasoning for rejecting the positive findings of the expert. She was a single female with three children and there were no findings as to social group and Shia ethnicity. The Appellant would appear to be a vulnerable witness which affected her general credibility overall. Paragraph 276ADE was not addressed and no sufficient reasons were given as to why there would not be very significant obstacles. New country guidance was applied without representations and no reasons were given for why the expert's report was not being relied on. There were material errors in the decision.

4. In relation to the matters that were not in the grounds Mr Mills submitted that AA was promulgated on 30 October 2015 and relied on before publicly promulgated. However, it was hard to see it was a material error as it concerned the background evidence in May 2015. Even if it was a procedural error the Judge was bound to follow it within a couple weeks. The point in relation to being given the opportunity to make written submissions in response was a valid point and that was a procedural error but he queried what further written submissions could have done. AA was largely related to matters that didn't apply to this Appellant. There was much discussion about Kurdistan and north of Baghdad and in paragraph 15 of the headnote addressed travelling and suffering serious harm en route from Baghdad airport. There was no finding that the southern governorates were dangerous. It was hard to see that much could have been said by the Appellant.

5. With regard to Ground 1, paragraph 339K was a starting point. In paragraph 29 the Judge had given reasons why there would not be a risk of persecution, namely that the Appellant had a brother in law. Ground 2 was a disagreement. There was no basis for the conclusion that she would be living on the street. She was here with her husband and returned and there was no claim that she did not have the protection of her husband or her husband's family. There were adequate reasons as to why she would not be on the street. The Judge did not need to find that she would be in particular social group. In relation to Ground 4 what was clear was that some people may be at risk even if there was not a general risk. It was hard to see what those circumstances were other than the claim that she was a single woman living on the streets. It was not clear that there was added value to the Article 15 (c) point. Ground 5 had some merit but he did not concede. Essentially he relied on paragraph 29 which was the finding that she was someone with a protector in the police force. He accepted that the Judge should have dealt in more detail than he did but it was not a material error. Ground 6 did not have force because she could return to her home area which was almost exclusively Shia and it was hard to see how that would give rise to a problem. Ground 7 and the human rights claim stood or fell with the asylum claim. There was nothing in Ground 8 about vulnerability. If the Article 8 consideration was flawed he did not need to consider 276ADE. He was leaving that open for reconsideration.

6. In reply Mr Howard submitted that the error in relation to the expert's report was material as Dr George had found that the Appellant would be a prime target for kidnapping and that needed to be addressed. In relation the country guidance submissions could have been material and may have made a material difference. She had been subject to past persecution. It was her evidence that she had no contact with her husband and he said that there were material errors.

7. The parties agreed that the appeal should be remitted to the First-tier Tribunal if I found that there was a material error.

Discussion and Findings

8. The First-tier Tribunal's reasons for dismissing the Appellant's asylum appeal and claim to be entitled to humanitarian protection were brief and confined to one paragraph:

"29. Having considered the latest country guidance, the Appellant and other witness evidence, the background evidence and Dr George's report I believe that return is a possibility for the Appellant. She has family in Iraq including a brother in law who is a colonel in the police force. He can provide her with protection and redress. I do not accept the validity of the report on the alleged bomb attack. I have not seen the original report or a properly certified translation. In any event the Appellant's family provided her with support when she was last in Iraq and whilst I accept there may be increased practical difficulties for her family to offer further support I am not satisfied that these are insurmountable or that they would not be offered. The Appellant does not come from one of the contested areas. She comes from the Al-Dinwaniyah Governorate which is in south-central Iraq. It does not form part of the Baghdad belt. 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). Consequently the Appellant is not at risk of indiscriminate violence regardless of her individual characteristics if she returns to her home city. Following AA, there is not a real risk of the Appellant travelling from Baghdad airport to her home province, suffering serious harm en route to such governorates so as to engage Article 15 (c)."

9. The Appellant relied on an expert report from Dr George at pages 57 to 123 of the Appellant's bundle. He assessed the Appellant's claim on the basis that she was of Arab ethnicity and Shia Muslim religio-political identity, that she was born and lived in Diwaniyah, that she was separated from her husband, who had remarried, and that there was now no contact between them, that she was targeted in Diwaniyah and that she had been in the UK since December 2013. He found that she would be at real risk in Iraq from the group or groups that had already targeted her in her home city and possibly beyond. He also found that she would be at risk as a single woman as her only close relatives were in Diwaniyah and she would be at risk there from those who had targeted her already. He considered that she would be at risk on relocation as a single woman without the benefit and support and protection of an extended family or clan network including male protectors. He also concluded that she would be at risk as a Shia and especially in vulnerable in Sunni-dominated and mixed Sunni-Shia communities in central Iraq, including her home city of Diwaniyah and the capital city, Baghdad. He concluded that she would be regarded by armed criminals and insurgents in central and southern Iraq as a prime target for kidnapping because she would be perceived as relatively wealthy. He also concluded that she would be at risk from the general violence in the centre and, to a lesser extent, in the south of Iraq because of the general security situation. He also states that in his very firm opinion, the Baghdad-based Iraqi authorities would be unable to protect the Appellant. He added that Shia militias that target Sunnis for reasons of sectarian hatred are closely allied with the Baghdad authorities to the extent that there is no meaningful distinction between the two.

10. He then considers the internal flight alternative and concludes at paragraph 161 that there is no part of central or southern Iraq in which the Appellant could live free of risks. He comments that in all these parts of the country she would be at real risk as a single woman without a family support network including male protectors. He states that in the centre and north-centre including her home city of Diwaniyah the security situation is nothing short of dire. In the Shia-dominated south conditions are much more settled than in the central parts of the country, but armed groups including Sunni groups remain active there and violence remains a problem. In Sunni-dominated and in mixed Sunni-Shia communities (including Diwaniyah and Baghdad) in north and central Iraq Shias, such as the Appellant are being targeted. He concludes that in central and southern parts of the country, as a returnee from abroad, she could be at risk of being kidnapped and in Diwaniyah and possibly beyond, she may also be at risk from the group or groups that had targeted her and her family.

11. It is the Appellant's case that she separated from her husband who lives in Iraq and with whom she has no contact. According to her witness statement at page 25 of the Appellant's bundle she has contact with her mother and brother who still live in Diwaniyah. Her brother in law is a colonel in the police force in Baghdad but according to her evidence, was unable to help her because his own home was bombed. The Respondent accepted in the reasons for refusal letter that she had encountered problems from unknown terrorist groups due to returning to Iraq from the United Kingdom and that her husband had remarried. The First-tier Tribunal did not take issue with the factual basis of the Appellant's claim save for the finding that the bomb attack did not take place.

12. I find that the First-tier Tribunal did not adequately engage with the conclusions of Dr George. Dr George concluded, as set out above, that she would be at risk on return in her home area of Diwaniyah as she would be targeted by those who had already targeted her. In finding that her family in Diwaniyah could support her the Judge did not address this conclusion at all. He appeared to accept, at paragraph 26 of the decision, that the Appellant had been subject to past persecution which he states he considered to be a serious indication that there was a well-founded fear of persecution on return in accordance with paragraph 339K of the Immigration Rules. He failed to give reasons why the Appellant would not be at risk of persecution in her home area addressing only practical difficulties. Whilst he concluded that her brother in law could provide her with protection and redress, he lived in Baghdad and in assessing whether the Appellant could either receive protection from her brother in law or relocate there he did not address any of the risk factors which in the opinion of Dr George pertained. Even assuming the Appellant could live with her brother in law in Baghdad and therefore was not a single woman without the benefit of extended family networks the First-tier Tribunal was still obliged to engage with Dr George's evidence that the Appellant would be at risk in Baghdad as a Shia and that the Baghdad based authorities would not be able to offer her sufficient protection. I find therefore that First-tier Tribunal failed to have regard to material evidence and failed to give adequate reasons in respect of it. This error is clearly material as it cannot be said that the conclusion would have been the same had it been addressed.

13. As the First-tier Tribunal's findings in relation to the Appellant's ability to return to her home area are infected by an error of law it follows that the findings in relation to Article 15 (c) also cannot stand particularly in view of the fact that the First-tier Tribunal neither assessed her individual characteristics nor gave the Appellant an opportunity to address him on the case of AA which was promulgated after the hearing.

14. The decision under Article 8 ECHR stands.

15. In the light of my findings, the extent of the judicial fact finding is such that the decision in the appeal should be remade in the First-tier Tribunal.

Conclusions:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the decision to the First-tier Tribunal for rehearing with no findings of fact preserved.

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 appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Dated 05 October 2016

Deputy Upper Tribunal Judge L J Murray