Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08452/2015

THE IMMIGRATION ACTS

Heard at UT Bradford
Decision & Reasons Promulgated
On 8th September 2016
On 14th September 2016

Before

deputy upper tribunal judge ROBERTS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Shorsh [H]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr Duffy, Senior Home Office Presenting Officer
For the Respondent: Mr Hussain, Counsel

DECISION AND REASONS
1. The Secretary of State for the Home Department appeals with permission against the decision of a First-tier Tribunal (Judge Saffer) allowing the Respondent's appeal against the Secretary of State's refusal to grant him asylum/humanitarian protection.
2. For the sake of clarity throughout this decision, I shall refer to the Secretary of State as "the Respondent" and to Mr [H] as "the Appellant". This reflects their respective positions before the First-tier Tribunal.
Background
3. The Appellant is a citizen of Iraq born 9th March 1991. He entered the UK via Turkey, Greece and France in a lorry on 25th October 2014 and claimed asylum the same day.
4. The basis of his asylum claim is that he comes from Diyala Province and that he has lived there until his departure, with family members. They remain there. He worked as a shepherd. His claim is that Isil tried to recruit him and because of his fear of them, his father arranged for his departure from Iraq, paying an agent to transport him to the UK.
5. The Respondent whilst accepting that the Appellant comes from the Diyala Province disbelieved his claimed reason for leaving Iraq and refused his claim. He appealed to the First-tier Tribunal.
First-tier Tribunal Hearing
6. When his appeal came before the FtT, the Appellant maintained his history and reason for his departure from Iraq. He further claimed he could not be returned to Iraq in any event as his home province was in an area of internal armed conflict and thus Article 15(c) applied. He also claimed that a return to Iraq would contravene his Article 8 ECHR rights because he had formed a relationship with a Latvian national who was in the UK exercising treaty rights.
7. The FtT in reaching its findings accepted that the Appellant came from Diyala Province in Iraq, an area where there is a state of internal armed conflict. On that basis any return to Iraq would have to be to Baghdad.
8. So far as the Appellant's credibility is concerned, the FtT found that the Appellant's lack of claiming asylum en route did damage his credibility but nevertheless considered it reasonably likely that as the Appellant came from Diyala, he had been asked as he said, to help support Isil terrorists.
9. The FtT also found that the Appellant's claim under Article 8 on account of his relationship with a Latvian national was not well-founded. It was noted that the age gap between the Appellant who was 25 years of age and the Latvian national who is 52 years of age made it highly unlikely this was a genuine relationship.
10. After making the above findings the FtT looked at the position of return to Baghdad. Reference was made to the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). It found that the Appellant would be at risk on return to Baghdad on account of his inability to obtain the requisite documents enabling him to return safely. The appeal was therefore allowed.
Onward Appeal
11. The Respondent sought permission to appeal essentially on one issue only; the FtT had erred in law by an improper application of AA and therefore there was lack of reasoning on material facts. The grounds revolved around the fact that the FtT had noted that the Appellant is in possession of an Iraqi passport which on his own evidence is with his family in Iraq and according to him could be sent to him. The grounds continue by saying in the light of that evidence, it is irrational/perverse of the FtT to conclude that the Appellant could not obtain a CSID when he had access to a passport in his name.
12. Permission to appeal was granted in the following succinct terms.
"The FTTJ noted the Appellant's evidence that his passport was at home with his parents. It is arguable that he then failed to make sufficient findings on the ability of the Appellant to obtain a CSID in the UK, as considered at paragraphs 173 to 177 of AA. The Appellant cannot rely on his own inaction in obtaining his passport and showing he has made efforts to obtain documentation."
Thus the matter comes before me to decide if the FtT's decision contains such material error that it must be set aside and remade.
Upper Tribunal Hearing
13. I heard submissions from both representatives. Mr Hussain acknowledged at the start that he was in difficulty defending the FtT's decision so far as the application of the country guidance in AA was concerned. He accepted that the matter needed to be set aside for the reasons set out in the grounds. He submitted that as there was no challenge to any of the other findings (including the Article 8 matter) what was left was a discrete matter only requiring further reasoned fact finding i.e. is the Appellant able to access a CSID?
14. Both representatives were of the view that this matter should be returned to the First-tier Tribunal for evidence to be heard and for that point to be properly aired with full findings of fact made on the evidence. Both were also of the view that the matter should be returned to Judge Saffer to complete this task as there was no challenge to the findings made in the rest of the decision.
15. I agree with that course of action. I set aside the decision but preserve all findings other that those relating to the viability of a return to Baghdad. The Appellant will need to attend the resumed hearing and give evidence. He will be subject to cross-examination from the Respondent. Full findings of fact will need to be made and considered in accordance with paragraphs 173 to 177 of AA. The decision will then need to be re-made in the light of those findings.

Notice of Decision
The appeal of the Secretary of State is allowed to the extent that the matter is remitted to the First-tier Tribunal (Judge Saffer) in order to remake the decision on the terms set out above in this decision.
No anonymity direction is made.

Signed C E Roberts Date

Deputy Upper Tribunal Judge Roberts 14 September 2016