Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07663/2015

THE IMMIGRATION ACTS

Heard at North Shields
Determination Promulgated
On 8 August 2016
On 11 August 2016
Prepared on 10 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

M. M.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Tetty, Counsel, instructed by Legal Justice Solicitors
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 24 November 2014. That application was refused on 21 April 2015, and a decision to remove him was made in consequence.
2. The Appellant's appeal to the Tribunal against those immigration decisions was first heard and dismissed on 22 June 2015. That decision was however set aside by the Upper Tribunal on 5 January 2016, and the appeal was remitted to the First Tier Tribunal to be heard afresh. It was then heard, and dismissed by decision of First Tier Tribunal Judge Fisher promulgated on 4 April 2016.
3. The Appellant's application to the First Tier Tribunal for permission to appeal was refused by Designated Judge Murray on 28 April 2016, but undaunted the Appellant renewed the application to the Upper Tribunal when it was granted by Upper Tribunal Judge Reeds on 7 June 2016. Despite the length of the grounds to the application the sole ground upon which permission was granted was as follows;
The only issue related to that of internal relocation, it being accepted that the Appellant was from one of the contested areas. Whilst the Judge set out the country guidance decision of AA (Article 15(c)) Iraq CG [2015] UKUT 544 it is arguable that the Judge failed to apply that guidance and make a clear finding as to whether, or in what circumstances the Appellant would be able to obtain a CSID to enable his relocation to be reasonable and not unduly harsh.
4. The Respondent filed a Rule 24 Notice dated 24 June 2016 in which she argued that the Judge's decision correctly applied the guidance to be found in AA because the Appellant had a national ID document, and thus gave adequate reasons for why internal relocation was feasible. That finding was open to him on the Appellant's own evidence and the guidance to be found in AA.
5. The Appellant made a Rule 15(2A) application on 1 August 2016 in relation to a report dated 29 July 2016 from Dr Rebwar Fatah. The Respondent offered no objection to the admission of that evidence, which was prepared to deal with the issue upon which permission to appeal had been granted, Dr Fatah's original report of 11 December 2015 having failed to deal with that issue.
6. Thus the matter comes before me.

Error of Law?
7. Before the Judge the Respondent conceded that the Appellant was from the town of Jawala, in the province of Diwala, as he had claimed. Both that town, and the province of Diwala were conceded by the Respondent in AA to be the subject of armed conflict, and areas where serious harm was occurring to civilian members of the population to the Article 15(c) threshold. There was no suggestion that the situation had improved materially by the date of the hearing before the Judge, and the Respondent did not seek to go behind, or to amend the breadth of the concessions made in AA.
8. It follows in my judgement that the only possible inference available to the Judge was that it was not reasonable to expect either the Appellant himself, or a Baghdad lawyer retained by him as his proxy, to travel from Baghdad to attend any civil administration offices in Jalawa to seek to establish the Appellant's identity, and/or to obtain the reissue of documents that were now lost to him. It is not at all clear that the Appellant's case was presented in such a way as to identify the significance of this point, but I accept that the Judge's decision does not engage directly with it.
9. Whilst the Judge's decision does record that the Iraqi authorities have opened in Baghdad an alternative CSA office for the provinces of Mosul, Anbar, and Saluhaddin [AA #187], it does not appear to recognise, or to engage with, the failure to open a similar office in relation to the province of Diwala. Again, it is not at all clear that this formed any part of the way in which the Appellant's appeal was presented.
10. That begs the question of why that stance might have been taken by the Iraqi authorities in distinguishing between the different provinces subject to fighting. It is entirely possible, because the evidence placed before both the Judge (and the Upper Tribunal) does not deal with this either way, that it was not perceived that there was any need to do so, because the CSA offices for the province in the provincial capital of Baqubah, have remained open for business and are functioning, and accessible to citizens in Baghdad, even if they have to use local agents based in Baqubah to do so as their proxy, rather than to travel there directly in person. In so saying I do note that Baqubah lies some 50km north east of Baghdad, and within the area referred to in AA as "The Baghdad Belts", and an area where an Article 15(c) risk exists [146]. I make no finding to this effect, and nor did the Judge, I merely note the possibility since the evidence did not deal with the matter.
11. In paragraph 16 of the decision the Judge found that the Appellant's return was feasible, and that he would be able to obtain the identity documentation that he would require to make his relocation to Baghdad reasonable, upon return. The question of reasonableness arose, because as set out in AA, if the Appellant were unable to obtain a CSID within a reasonable period of time, and had no family member capable of supporting him, he faced a real risk of destitution.
12. The Judge did not fall into the error of relying upon the "Central Archive" in Baghdad as being able to provide identity documents, because as he noted, in AA it had been concluded that the evidence did not establish that it was able to do so [187]. Instead he relied upon the existence of the National Status Court in Baghdad, which was recognised in AA as being available for individuals to apply for recognition of their identity. Although the precise nature of that court's operation was therein described as unclear, that is not the same as a conclusion that the court did not function, and that it would therefore be unable to provide identity documentation to an applicant. Thus the Judge was correct to reject Mr Tetty's argument to the contrary as without evidential foundation, and I note that even now Dr Fatah's recent report offers no suggestion that the court does not function. Indeed that report makes no reference to the existence, or the function, of that court at all.
13. The Appellant's evidence to the Judge about the identity documentation that he had been issued with was not entirely clear. At his screening interview he had denied having ever been issued with an Iraqi passport [2.2], or a military ID card [2.6], but he had admitted to having been issued with a driving licence and a national ID card, both of which were then said to be in Iraq [2.6]. The matter was not taken further at his full interview, and his brief witness statement of 11 June 2015 [ApB p4] made no reference at all to either the nature of the identity documents he had originally been issued with, or his ability to obtain the re-issue of those he had lost, or the issue of those he had never had.
14. Mr Tetty confirmed to me however that the Appellant's instructions were that his birth had been properly registered by way of an entry into the "Family Book", and that he had in due course been issued by the Iraqi authorities with three forms of legitimate identity document. One was an Iraqi Citizenship ID (also known as an Iraqi National Certificate) ["INC"], the second was a Civil Status ID (also known as a CSID) ["CSID"], and the third was his driving licence. Of these the Appellant admitted to retaining in his possession only the INC, although he had never produced a copy of it in evidence. His evidence was that he had left the CSID card at his family home when he fled. His evidence was that he had lost contact with his family as a result of that flight, and the fighting in the area, and thus his CSID card was in practice lost to him, even if it did in fact continue to exist, and remained in the possession of members of his family.
15. Those instructions are consistent with the instructions that were given recently to Dr Fatah, and which were recorded by him in his report of 29 July 2016 [36]. Dr Fatah goes slightly further however, and he records in addition that whilst the Appellant knows his own citizenship number (00441051), he does not know the citizenship number of any member of his family.
16. There was no finding to the effect that the Appellant had either a current, or an expired passport, and the Appellant denied it. Unless the Respondent is able to obtain from the Iraqi authorities, through the Iraqi Embassy in London, the issue of a laissez passer then she will not be able to effect his removal to Iraq. A laissez passer may however be issued upon production of an INC, and since the Appellant has such a document in his possession, there is in my judgement no basis upon which the Tribunal could properly have inferred that his return was not feasible.
17. Upon return to Baghdad the Appellant would need a replacement CSID in order to access public services, financial assistance, employment and housing. Without it, he would be destitute, and the expectation of his internal relocation to Baghdad would not be a reasonable one. With a CSID, there is no criticism of the Judge's conclusion that it would be reasonable. That begs therefore the question of whether the Appellant could obtain a replacement CSID, either now from within the UK, or, upon his arrival in Baghdad.
18. It is plain, both from the guidance in AA, and from Dr Fatah's recent report (paragraphs 53-60), that since the Appellant is able to produce his original genuine INC, it is possible for him to obtain from the Iraqi Ministry of the Interior the details of the CSID that was originally issued to him, and which is now said to be lost. The CSID details include all of the relevant details of the Family Book (volume and page number allowing tracing of his family, and cross-checking of his identity). Armed with those, he would in my judgement be able to obtain the issue of a replacement CSID either from the UK, or within Iraq. That is because the INC could only ever have been issued to him upon his production of a valid CSID, and because the details contained upon the CSID will have been recorded by the citizenship department of the nationality directorate when the INC was issued to him. It is therefore possible according to Dr Fatah to obtain from the Nationality Directorate of the Iraqi Ministry of the Interior upon production of the INC all of the details that would be required to be produced in a successful application to obtain a replacement CSID.
19. Whilst Dr Fatah is plainly concerned that there are practical difficulties inherent in this process, they are in my judgement very far from insuperable. Dr Fatah is concerned that the Iraqi authorities may not believe the Appellant; but there is no reason offered as to why that should be the case, and I can identify no reason why the Tribunal should infer that this would occur. The Appellant has been believed by the Respondent and the Tribunal, and he holds his original genuine INC, and he will be able to obtain a laissez passer from the Embassy as a result. Dr Fatah is also concerned that the Appellant would need to be in Baghdad himself to search the INC record; but again there is no reason offered as to why that should be the case, or why the Appellant should not be expected to take such a step upon arrival in Baghdad. I note that Dr Fatah, and the Upper Tribunal in AA recognised the practice and procedure of appointing someone within Baghdad a power of attorney. I accept that since the Appellant denies contact with anyone in Baghdad, he will be required to use a lawyer for that purpose, but no reason is offered as to why he should not do so. To do so is said to be a recognised process, that Dr Fatah accepted in his evidence in AA he had used himself, and was "commonplace" in Iraq [AA 174].
20. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds.
DECISION
The Decision of the First Tier Tribunal which was promulgated on 4 April 2016 contains an error of law in the decision to allow the Appellant's appeal on humanitarian protection grounds and human rights grounds which require that decision to be set aside and remade so that the appeal on those grounds is dismissed. There is no error of law in the decision to dismiss the Appellant's appeal on asylum grounds and that decision is confirmed.
I remake the decision so as to dismiss the appeal on all grounds.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 24 March 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify her. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.

Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 24 March 2016