Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/08523/2015

THE IMMIGRATION ACTS

Heard at Bradford
On 11th April 2017
Decision and Reasons Promulgated
On 27th April 2017

Before

deputy upper Tribunal JUDGE KELLY

Between

the secretary of state for the home departmenT
Appellant
and

MH
(anonymity directed)
Respondent

Representation:
For the Appellant: Mr C Cole, Solicitor
For the Respondent: Mrs R Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Shimmin who, in a decision promulgated on the 10th October 2016, allowed the appeal of MH against the decision to refuse his Protection and Human Rights Claims. For ease of reference, I shall refer to the parties in the same manner as they were referred to in the First-tier Tribunal; that is to say, I shall refer to MH as ‘the appellant’ and to the Secretary of State as ‘the respondent’.
2. An anonymity direction was made by the First-tier Tribunal and it is only logical that I extend this to cover proceedings in the Upper Tribunal.
3. The essence of the appellant’s claim was that although born in Iraq, he had lived the majority of his life in the United Arab Emirates (UAE) prior to entering the United Kingdom as a work-permit holder in June 2006. Due to his background, he now speaks Arabic with a Gulf accent, speaks English with an American accent, and has generally adopted a ‘western’ lifestyle. These facts would thus inevitably lead to his persecution upon return to Iraq. Moreover, given that he does not hold a current Iraqi travel document, he would be unable to access services and would thus find himself destitute on return.
4. Judge Shimmin found that there was a real risk that the appellant would suffer persecution on return to Iraq, because “… his westernisation and lack of knowledge of the customs and norms of Iraq will make him stand out in Baghdad” and thereby “put him at risk of being [mistakenly] identified as an infiltrator” [paragraph 55]. For the same reasons, Judge Shimmin also found that the appellant would face “very significant obstacles” to his integration in Iraq for the purposes of paragraph 276ADE(iv) of the Immigration Rules. Finally, Judge Shimmin found that there was a real risk that the appellant would be destitute upon return to Iraq because he did not possess a CSID (identity document) and that he would be unable to obtain one.
5. The respondent’s grounds of appeal initially challenged all three aspects of Judge Shimmin’s decision; that is to say, the difficulties that he found would be occasioned to the appellant by virtue of his “westernisation”, his lack of a current travel document, and the obstacles that these things would pose to his integration on return to Iraq. The First-tier Tribunal refused permission to appeal on all three grounds. However, Upper Tribunal D Taylor subsequently granted permission to appeal on the first two grounds only. The grant was made in the following terms –
The grounds challenging the judge’s conclusions that the appellant would not be able to obtain a CSID are arguable, since it is apparent that the judge did not take into account the fact that, according to the grounds, the appellant arrived in the UK on a valid and fully endorsed Iraqi passport.
Ground two is also arguable. It may well be that the appellant is able to establish a risk on return on account of his perceived westernisation, but the judge did not give adequate reasons for so finding.
However, ground three is not arguable. On the basis of the unchallenged findings in the determination it was open to the judge to conclude that the appellant met the requirements for leave to remain under paragraph 276ADE(iv) and permission is refused on that ground.
6. I consider firstly whether the judge’s finding in respect of the CSID document was sustainable on the evidence. Mr Cole’s response to this depended upon a literal interpretation of the findings in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) in which it was said that an Iraqi national should be able to obtain a CSID from the Civil Status Affairs Office for their home Governorate using an Iraqi passport (whether current or expired). It is true, as Mr Cole pointed out, that the Tribunal did not state that it would be possible to obtain a CSID using a poorly photocopied passport, which is all that the appellant now possesses. Mr Cole was also correct in his assertion that there was and is not any evidence to support the respondent’s contention that the appellant would be able to obtain a CSID by producing a photocopy of his passport. Nevertheless, the legal position before Judge Shimmin was that it fell to the appellant to substantiate his claim that he would be destitute upon return to Iraq by reason of his inability to secure a CSID. In the process of substantiating that claim, the appellant would necessarily have had to adduce some evidence to show that a photocopied passport was insufficient to secure a CSID. Thus, even if the decision in AA (Article 15(c)) Iraq is correctly interpreted as being authority for no more than the proposition that an original Iraqi passport will in general suffice to secure a CSID, it does not follow from this that a photocopied passport will not suffice. Accordingly, the question of whether a photocopy of an expired Iraqi passport is sufficient to secure a CSID was one that remained at large at the hearing before Judge Shimmin, in respect whereof it fell to the appellant to adduce evidence with a view to substantiating his overarching claim that he would be at risk of destitution on return. Given the admitted lack of any such evidence, I hold it to have been a material error of law for Judge Shimmin to find that the appellant would be unable to secure a CSID and thus be at risk of destitution on return to Iraq.
7. I now turn to consider the sustainability of Judge Shimmin’s finding that the appellant would be at risk of persecution by reason solely of the perception that he has become ‘westernised’. Mr Cole had argued in the First-tier Tribunal that this perception would arise, at least in part, as the result of the appellant’s somewhat unusual appearance and presentation. Given the terms in which permission to appeal has been granted [see paragraph 5 above] it is not of course open to the respondent to argue that those characteristics would constitute anything other than very significant obstacles to the appellant’s integration into Iraqi society. The question remains, however, whether Judge Shimmin gave adequate reasons for concluding that those same characteristics placed the appellant at risk of persecutory harm following his return to Iraq. Mr Cole frankly conceded that he did not. He nevertheless argued that given the findings in BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) [promulgated after the decision of Judge Shimmin] this error was immaterial to the outcome of the appeal. He relied upon three specific findings in that case. Firstly, he relied upon the finding that whilst each case will be fact-sensitive, the longer a returnee from the West has spent abroad the greater in principle will be the risk to him on return to Iraq. Secondly, he relied upon the finding that Sunni men are more likely than others to be targeted as suspected supporters of Sunni extremist groups such as ISIL Thirdly, he relied upon the principle that whilst neither of the above categories will alone suffice to establish a real risk on return, they may nevertheless do so when assessed upon a cumulative basis.
8. The difficulty that I have with this submission is that the two potentially ‘at risk’ categories upon which it relies seem to me, on the particular facts of this case, to be mutually exclusive. To quote from his evidence given at the First-tier Tribunal hearing (as recited in the Rule 24 Response) the appellant says that he likes music, bacon and beer, does not practice Islam, and describes himself as “a guy with crazy hair, earrings and piercings”. Whilst all this may well lead to a perception that he is ‘westernised’, he is by the same token extremely unlikely to be perceived by Shia militia as a supporter of Sunni extremist groups such as ISIL. Given the finding in BA (Returns to Baghdad) Iraq that a returnee to Baghdad would not be at real risk of harm by virtue of any single ground standing alone, I must inevitably conclude that Judge Shimmin materially erred in law by allowing the appeal under the Refugee Convention solely upon the basis that the appellant was at risk of persecution by reason of the fact that he has been ‘westernised’.
9. It follows from the above that the decision to allow the appeal under the Refugee Convention (referred to as ‘the Asylum Convention’ in Judge Shimmin’s decision) must be set aside and substituted by a decision to dismiss the appeal on that ground. Nevertheless, the decision of Judge Shimmin to allow the appeal on the ground that the appellant’s removal would be unlawful by virtue of section 6 of the Human Rights Act 1998 (that is to say, under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms) stands.

Notice of Decision
10. The decision of the First-tier Tribunal to allow the appeal on the ground that the appellant’s removal would be contrary to the obligations of the United Kingdom under the Refugee Convention is set aside and is substituted by a decision to dismiss the appeal on that ground.
11. For the avoidance of doubt, the decision of the First-tier Tribunal to allow the appeal on the ground that the removal of the appellant would be unlawful by virtue of section 6 of the Human Rights Act 1998 (that is to say, under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms) stands.

Direction Regarding Anonymity – rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014

Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their 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 Date: 25th April 2017

Judge Kelly
Deputy Judge of the Upper Tribunal