Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/09751/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision and Reasons Promulgated
On 26 September 2016
On 05 October 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

A. K.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Cole, Solicitor, Parker Rhodes Hickmotts
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 15 January 2015. That application was refused on 17 June 2015, and a decision to remove him was made in consequence.
2. The Appellant's appeal to the Tribunal against those immigration decisions was heard and dismissed by decision of First Tier Tribunal Judge Hindson promulgated on 8 June 2016.
3. The Appellant's application to the First Tier Tribunal for permission to appeal was granted on 4 July 2016 by Judge Lambert on the basis it was arguable (since there was no reference to it in the course of the decision) that the Judge had failed to apply the relevant country guidance of AA (Article 15(c)) Iraq CG [2015] UKUT 544 in his consideration of the evidence.
4. Thus the matter comes before me.

Error of Law?
5. It is accepted before me that both those who drafted the grounds of the application for permission to appeal, and, the Rule 24 response to the grant of permission, failed to accurately identify the findings of fact that were made by Judge Hindson, following his assessment of the reliability of the Appellant's evidence.
6. It is also accepted before me that the Judge did not make a positive finding that the Appellant originated from either Baghdad, or, from the KRG. I am satisfied that this is the proper analysis of the decision, when it is read as a whole, notwithstanding the use of the phrase "return to the IKR" [36]. If the Judge did intend to make, and did make, a positive finding of fact that the Appellant originated from the KRG then the Appellant had identified no risk of harm to himself in the KRG, and his appeal would be dismissed without more.
7. As Mr Cole accepts, the Judge concluded that the Appellant's evidence was not only unreliable, but clearly inconsistent, as to where he had last lived in Iraq. The Appellant had originally claimed to have last lived in Iraq in Rahinawa, in Kirkuk. He had then claimed at interview to have lived in Bayji a district in Kirkuk, but also claimed to have fled Kirkuk in 2003. Finally he had said that whilst he was born in Rahinwa, Kirkuk, he had moved in 2003 to Bayji, Salahaddin. He had also denied having been taught at school in Arabic, which given his age, ought to have been the case had he grown up in an area outside the KRG as he claimed to have done [27]. The Judge concluded that the Appellant had not told the truth over a relatively simple matter, and concluded that he was not satisfied either that the Appellant was born in Kirkuk, or, that he had lived in Bayji since 2003 [33]. Mr Cole accepts that those findings are not open to challenge. I agree, they were findings that were open to the Judge upon the evidence, were adequately reasoned, and followed the application of the correct burden and standard of proof to the evidence.
8. The Judge made no positive finding of fact as to where the Appellant was in truth born, or, where he had in truth lived within Iraq from time to time. It is plain that the Judge felt unable to do so given the lack of reliable evidence from the Appellant upon those issues, and in my judgement it is not open to the Appellant in these circumstances to complain about the lack of such a positive finding made in his favour.
9. In my judgement it is not a necessary consequence of either the fact that the Appellant is a Kurd, or, the Respondent's concession that the Appellant's father and brother were killed as police officers in the Ba'athist regime of Saddam Hussein, that the family were based at any particular date within any particular city, or province. I reject the argument to the contrary.
10. The Judge noted that on his own case, for over twelve years, the Appellant had experienced no difficulty in Iraq as a result of either his father or his brother having acted as police officers in the Ba'athist regime of Saddam Hussein. As a result the Judge concluded, as he was entitled to do, that he was not satisfied that any difficulty would emerge on that account now, in the event of the Appellant's return to Iraq [32].
11. Those findings disposed of the asylum and Article 3 appeals, and no material error of law is disclosed in the Judge's approach to those grounds of appeal.
12. Turning then to the humanitarian protection claim, the Appellant's case before the Tribunal was that he and his immediate family (together with the majority of the inhabitants of their village) had fled their village in the face of the advance of ISIS forces. Although the Judge did not believe this, his case was that he had left his immediate family at the Iraq/Turkey border, within Iraq, because the family were unable to raise the funds for them all to cross into Turkey, and so he travelled alone. Accordingly, the true thrust of the Appellant's claim, as the Judge correctly identified, was that as a civilian he faced a risk of harm in the event of his return to his home area in the course of the indiscriminate violence affecting the civilian population, resulting from the armed conflict being pursued between ISIS and the forces of the Iraqi authorities; Article 15(c). In considering that aspect of his case the Judge did not expressly consider or make reference to, the guidance that is to be found in this respect in the decision of AA (Article 15(c)) Iraq CG [2015] UKUT 544, which in turn follows the guidance of the Court of Appeal in HF (Iraq) & Others [2013] EWCA Civ 1276.
13. Before me, the argument turned upon whether the Judge's failure to do so amounted either to any error of law at all, or, to a material error that required the Judge's decision to be set aside and remade. Ultimately I am satisfied that it was neither. The Appellant failed to discharge the burden of proof that rested upon him, to establish where his home area was. Thus he failed to establish that he had fled from his home area in the circumstances that he described. He also failed to establish that he faced any risk of harm as a civilian arising out of an internal armed conflict should he seek to return to his home area. Both were necessary conclusions from his failure to establish where in truth his home area actually was.
14. In circumstances where an applicant has failed to establish that his home area was affected by an internal armed conflict it is not enough in my judgement to assert baldly that since the majority of the populations of the areas that are so affected are ethnically Kurdish, that his home area must by necessary inference be one of them. The Judge was not obliged to draw such a favourable inference, and plainly did not do so.
15. Although the Appellant had said that he had lost contact with the members of his immediate family in Iraq, having left them at the border, the Judge made it plain that he did not believe him [29]. Thus, even if the Appellant did not in truth have in his possession at the date of the hearing any identity documents, the Appellant had failed to establish that he would be unable to use the family members with whom he was in contact, to vouch for him, and, to identify the page in the family book that his family were registered in, and, the city/province for that family book. Depending upon where that city/province was in truth, then he would be able through the Iraqi Embassy, and/or using a lawyer in Baghdad as a proxy, obtain the issue of new identity documents; AA. There was therefore no error in the Judge's conclusion that he was not satisfied the Appellant would be unable to obtain the issue of a passport, or in turn the issue of a CSID. Armed with a CSID he would be able to access state support, in addition to the family support that the Judge concluded was available to him [35]. So much is clear from the guidance to be found in AA.
16. In the circumstances it was open to the Judge to conclude that return to Iraq was feasible, and that the Appellant could in safety be returned to Baghdad, and either settle there, or relocate to the KRG. If, in truth, he originated from the KRG, then he would be returned there directly, or make his way there in safety from Baghdad.
17. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds. The Appellant's appeal is dismissed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 8 June 2016 did not involve the making of an error of law in the decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 26 September 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 him. 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 26 September 2016