Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/05700/2012

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19 December 2017
On 22 January 2018

Before

UPPER TRIBUNAL JUDGE LANE

Between

Delshad Kadir Ahmad
(no ANONYMITY DIRECTION)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Lambert, instructed by Barnes Harrild & Dyer, Solicitors
For the Respondent: Mr Turfan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Delshad Kadir Ahmad, was born on 1 July 1985 and is a male citizen of Iraq. The appellant had appealed against the decision of the respondent dated 16 May 2012 refusing to grant the appellant asylum and making directions for his removal from the United Kingdom. The appeal has been heard in the First-tier Tribunal on more than one occasion but, most recently, by Judge Juss who promulgated his decision, dismissing the appeal, on 6 September 2016. Permission was granted to appeal to the Upper Tribunal and an appeal was dismissed by Deputy Upper Tribunal Judge Mandalia by a decision promulgated on 23 June 2017. Deputy Judge Mandalia's decision was set aside by a decision of Upper Tribunal Judge Lindsley which is dated 19 July 2017. The decision was set aside under Tribunal Procedure (Upper Tribunal) Rules 2008, paragraph 46. At [2], Judge Lindsley wrote:
This is because the decision of the Court of Appeal in AA (Iraq) 2017 EWCA Civ 944 made on 11 July 2017 has rewritten the country guidance and now clearly requires at paragraph 9 that "regardless of the feasibility of P's return it will be necessary to decide whether P has a CSID or will be able to obtain one, reasonably soon after arrival in Iraq".
2. I reserved my decision having heard the submissions of representatives for both parties.
3. I find that Judge Juss' decision should be set aside. I have reached that decision for the following reasons. First, having determined that, as an undocumented Iraqi citizen, there was no feasibility of return of the appellant to Iraq in the foreseeable future, Judge Juss concluded that the appellant could not rely upon the lack of a CSID upon his return to Iraq as the basis for an Article 3 claim. As is clear from the passage of the Court of Appeal judgment in AA which I have quoted above (see Judge Lindsley's grant of permission) the judge should not have completed his analysis without going on to consider whether the appellant was likely to obtain a CSID either before he travelled to Iraq or soon after arrival. Judge Juss appears to have confused the possession of a CSID with the possession of a laissez passer or passport; the latter documents are required to enable an individual to enter Iraq whilst a CSID is required to access essential services without which a Kurd in Baghdad may be exposed to a real risk of ill-treatment or destitution. Obviously, Judge Juss did not have the benefit of the country guidance provided by the Court of Appeal in AA but it is apparent that his decision remains incomplete for the reasons I have given. In addition to failing to consider whether the appellant might obtain a CSID, Judge Juss has not fully addressed issues of credibility and also internal flight within Iraq. It appears that he did not go on to consider these matters in any detail because he did not consider that it was feasible for the appellant to return to Iraq at the present time.
4. I set aside Judge Juss's decision. I set aside the Tribunal's findings of fact. I consider that it is appropriate that this appeal should be returned to the First-tier Tribunal for that Tribunal to remake the decision. There may need to be further fact-finding but there will need to be a proper examination of the likelihood of the appellant obtaining a CSID and, if it is found that he was at real risk on return to Kirkuk, whether it would be unduly harsh to expect him to exercise the option of internal flight. By the time this appeal returns to the First-tier Tribunal, it is hoped that the security position within Kirkuk may be clearer.
Notice of Decision
5. The decision of the First-tier Tribunal which was promulgated on 6 September 2016 is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision.
6. No anonymity direction is made.

Signed Date 17 January 2018

Upper Tribunal Judge Lane

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 17 January 2018

Upper Tribunal Judge Lane