Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/07848/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 11 August 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

a D
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Cole, Parker Rhodes Hickmotts, Solicitors
For the Respondent: Mr Diwcnyz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant was born on 1 January 1990 and is a male citizen of Iraq. By a decision promulgated on 20 June 2016, I found that the First-tier Tribunal had erred in law such that that decision fell to be set aside. My reasons for reaching that decision were as follows:
1. The appellant was born on 1 January 1990 and is a male citizen of Iraq. He appealed to the First-tier Tribunal (Judge O'Hanlon) against the decision of the respondent to refuse his asylum claim and to make directions for his removal to Iraq. The First-tier Tribunal, in a decision promulgated on 28 September 2015, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.

2. The judge gave his decision before the promulgation of the country guidance of the Upper Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). The Tribunal did, however, have the benefit of an expert report from Dr Fatah (one of the experts who had given evidence before the Tribunal in AA). In the appeal, the judge was concerned with issues surrounding the appellant's lack of identity and travel documentation and the means by which he might obtain such documentation. He recorded [25] Miss Pickering's [Counsel for the appellant] submission, drawing upon Dr Fatah's report, that the appellant would be unable to obtain replacement documents without travelling to Mosul the city in which he was born. This would involve travelling to a contested region currently under the control of ISIS. In the subsequent two paragraphs [26 - 27] the judge makes no further reference to the report of Dr Fatah but does refer to having "considered" the evidence provided by the respondent, namely country information and guidance dated 24 December 2014. At [27] the judge went on to find that, whilst appreciating that the appellant may have some difficulties in obtaining replacement documentation in either Iraq or the UK I found that it would be possible for the appellant to obtain the necessary documentation and that this would therefore not indicate that it would be unreasonable on these grounds for the appellant to be relocated to Baghdad.
3. The difficulty with that finding is that the judge has not engaged in any real sense with the evidence of Dr Fatah. If the judge wished to reject the evidence of Dr Fatah he should have engaged with it and given reasons for preferring the evidence adduced by the Secretary of State. It is not enough for the judge simply to refer briefly to Dr Fatah's report (via the submission of Miss Pickering) and then to assert (as he does at [27]) that he considered it would be possible for the appellant to obtain the necessary documentation.
4. The judge falls into further error at [29] where he considers the test for the appellant relocating from his home area to Baghdad. The judge states that the evidence "suggested that there were no insurmountable barriers preventing Iraqi nationals from relocating to Baghdad although cases needed to be decided on their individual facts." At [30], the judge states that, "I do not find any reasonable barrier preventing [the appellant] being relocated to Baghdad." Although later in the same paragraph the judge does appear to refer to the correct test ("I do not find the appellant being returned to Baghdad would be unduly harsh and unreasonable.") it is unclear what he means by "insurmountable barriers." Indeed, it is unclear whether he has applied a test of undue harshness/reasonableness or whether he has sought to identify the existence of "insurmountable barriers."
5. For the reasons I have given above, I find that the judge has erred in law such that his decision falls to be set aside. None of the findings of fact shall stand although the question of credibility is of little significance; the respondent accepts that the appellant cannot return to Mosul and the only issue remaining in the appeal concerns the possibility of internal flight to Baghdad.
Notice of Decision
6. The decision of the First-tier Tribunal which was promulgated on 28 September 2015 is set aside. The Upper Tribunal will remake the decision following a resumed hearing at Bradford on a date to be fixed. The hearing will be before Upper Tribunal Judge Clive Lane.
2. In brief, the appellant's circumstances are that he comes from Nineveah. The Secretary of State accepts that the appellant cannot return to live in Nineveah because there are substantial grounds for believing that he would come to serious harm were he to do so. The only question in the appeal is that whether it would be unduly harsh to expect the appellant to relocate to Baghdad.
3. I am aware that the appellant may have relatives living in Iraq but, given that they are living in Nineveh, I am unable to conclude that they are likely to be able to assist the appellant even assuming he was able to establish contact with them. I do not consider it reasonable to expect such relatives to put their own lives at risk travelling to a government office where, in the light of the appellant's lack of documentation, they are not likely to be successful in obtaining by proxy a CSID or other relevant document which might assist the appellant in Baghdad. Notwithstanding the appellant's youth and good health, Mr Cole's submits that his lack of local contacts in Baghdad together with his inability to access government services through the agency or a CSID or to be accommodated by friends and relatives whilst having no prospect even in the medium term of obtaining any of those comforts, would expose him to conditions rendering internal flight unduly harsh in his case.
4. The appellant acknowledges that he has family in Iraq but, very significantly, he has lived in this country since he was a child (aged 17 years) having left Iraq more than eight years ago. He says that he has not been able to contact his family and, given the length of time that has elapsed, the fact that there are no other reasons for doubting the appellant's credibility (as identified by the First-tier Tribunal) and in the light of the difficulties currently existing in Iraq, I accept that evidence. The appellant would, therefore, return to Iraq without any prospect of family or friends assisting him in Baghdad. Without a CSID, he is likely to face the prospect of destitution, having no job, accommodation or access to welfare benefits of any kind. I also accept Mr Cole's submission that, having not been in Iraq since he was a child, this adds to his vulnerability as a returnee; his long residence in the United Kingdom is likely to obstruct his ability to establish relationships with strangers in Iraq who may be suspicious of his connections with Europe. Having considered all the evidence, I find that it would be unduly harsh to expect the appellant to relocate to Baghdad. It follows from that finding that he is entitled to a grant of humanitarian protection.
Notice of Decision
5. The appellant's appeal is allowed on the basis that he is entitled to a grant of humanitarian protection.

No anonymity direction is made.

Signed Date 1 October 2016

Upper Tribunal Judge Clive Lane

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

Signed Date 1 October 2016

Upper Tribunal Judge Clive Lane