Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10012/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 16th May 2016 / 1st September 2016
On 06th October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE
DEPUTY UPPER TRIBUNAL JUDGE TAYLOR

Between

Aklas [S]
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Smith, instructed by Ison Harrison Limited
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer
Mr A McVeety, Senior Home Office Presenting Officer (16/9)

DECISION AND REASONS

Resumed Hearing
1. This matter was transferred to me by Order of Upper Tribunal Judge O'Connor on 5 August 2016 on the grounds that as it was not practicable for the original Tribunal to give its decision without undue further delay. Upper Tribunal Judge Clive Lane had set aside the First-tier Tribunal's decision giving his reasons as follows:
"1. The appellant, Aklas [S], was born on 1 February 1960 and is a female citizen of Iraq. She had appealed to the First-tier Tribunal (Judge Batiste) against the decision of the respondent dated 26 June 2015 who refused her leave to enter the United Kingdom having rejected her asylum claim. The First-tier Tribunal (in a decision promulgated on 15 October 2015) dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The judge [32] accepted the account given by the appellant as credible. He accepted that she was party to a mixed Sunni/Shi'a marriage and that she had been threatened by unknown persons on account of her marriage while she was living in Iraq. The judge found that the appellant would return to Iraq with her husband. He assessed her asylum claim on that basis [34]. The judge also found that the appellant's nephew had been killed having also been threatened. The "real issue in this case" as the judge identified at [37] was that of internal relocation.
3. It was in respect of his assessment of that issue that the judge fell into legal error, in my opinion. The appellant considered the question of risk on return and internal flight on the basis of the country guidance provided by AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). At [27] the judge noted that the representative for the appellant (Ms Smith of Counsel, who also appeared before the Upper Tribunal) argued that the existing country guidance should be disapplied as it was "out of date". Following the hearing but before the judge wrote his decision, AA had been promulgated (in fact, on the day following the hearing). The judge noted that he did not have submissions about this case [AA] however "as it had not been promulgated at the date of hearing." The first question is whether the judge acted properly by applying AA without offering the parties the opportunity to make submissions regarding its relevance in the appeal. Given that the country guidance was promulgated after the hearing but before the promulgation of the judge's decision and there was no clear reason why a further hearing could not be arranged, I find that the judge erred in law by failing to reconvene the hearing. That error of law appears to be accepted by the respondent in the Rule 24 reply of 24 December 2015 [3]. However, the respondent argues that it was "far from clear to what material degree [AA] played a significant part in his decision." I disagree. It is apparent from the judge's decision that he has applied AA throughout his analysis. In particular at [39] when assessing the question of internal flight, the judge wrote,
"I accept that much of Baghdad is now divided between Sunni and Shia areas. The mixed marriage [of the appellant and her husband] is likely to be a disadvantage for them. However, nowhere in AA does it suggest that the people from mixed marriages such as the appellant would be at specific risk from this factor.
The judge had before him an expert report filed on behalf of the appellant from Ms Laizer which the judge found "extremely helpful." However, the judge complained that the report had been written "prior to the new country guidance authority of AA." Ms Laizer dealt in her report with the question of the mixed marriage. Had the judge reconvened the hearing, the appellant's representative would have had the opportunity to make submissions on the expert evidence in the light of AA and in particular as regards any danger posed to the appellant by her mixed marriage. It is not, in my opinion, correct for the judge simply to conclude that the mixed marriage would not pose the appellant a real risk of harm simply because parties to mixed marriages do not form a category of individuals at risk as identified in AA; indeed, if that is the case, it would have been more logical to have ignored AA and to have determined the appeal on its own evidence, including the expert report. Equally, it is not stated in AA that parties to mixed marriages are not at risk; the judge should have made his findings on the issue only having heard submissions from both parties in the light of the new country guidance."
4. This is a matter which may be disposed of in the Upper Tribunal given that there is no need to revisit the findings of fact made by the judge. For the reasons I have given I have set aside the judge's decision preserving his findings of fact and I shall remake the decision following a resumed hearing in the Upper Tribunal."
2. The appellant adopted a further statement to stand as her evidence-in-chief. She was accepted as having given credible evidence by the original judge in relation to the events which led to her flight from Iraq. Her factual claim, having been established, means that she and her husband would be at real risk if returned to Basra.
3. The sole remaining issue therefore is whether there is an internal relocation option available to the appellant and her family as a couple from a mixed marriage returning to Baghdad.
4. The original judge noted that she has a brother in Baghdad who might be able to provide assistance. The witness statement deals with that issue.
5. The appellant says that her brother is 68 or 69 years old and the last time she had any contact with him was nearly 17 years ago. She has not seen him since she was married, since he disapproved of her marrying a man who was a Shia. Even before they were married she had limited contact with him because he was many years older than her. She understands that he has heart problems and is dependent on his own children to care for him. In answer to questions from the Presenting Officer she said that she knew that he was still living in Baghdad city, because her other brother in Basra had told her so, and he did have family of his own including adult children.
Submissions
6. Mr McVeety submitted that the family could reasonably return to Baghdad. He referred to the evidence in EA (Sunni/Shia mixed marriages) Iraq CG [2011] UKUT 00342, not for the proposition that the country guidance was still relevant some five years later, but because the Tribunal recorded that of the 6,000,000 marriages registered in Iraq one-third, namely 2,000,000 were mixed Shia/Sunni. This was therefore not an unusual problem.
7. He referred me to the Home Office Country Information and Guidance on Iraq for Sunni Arab Muslims dated August 2016 which records that whilst Sunnis are marginalised by the Shia majority in Baghdad they are still represented in society and government. Whilst there are reports that government forces have abused Sunnis, mainly in the areas of current or recent Daesh control, in general a Sunni will not be at real risk of persecution or serious harm from the State. On the other hand, he accepted that various non-state actors, primarily the powerful Shia militia who number in the tens of thousands, have violated the human rights of Sunnis in Baghdad and the contested governorates.
8. At paragraph 2.4.2 of the report, it states that there are still Sunni dominated districts in Baghdad city although it has become more segregated between Sunni and Shia. Baghdad hosts over half a million IDPs which have been displaced from Sunni majority governorates. Whilst Sunnis are the minority in a city of over 7,000,000 people, it is reasonable to judge that Sunnis number at least in the hundreds of thousands.
9. The report states that freedom of movement may be limited in areas under the control of government forces and/or Shia militia and a Sunni may be required to find a sponsor to enter the city although this requirement is subject to change, due to the changing security situation.
10. He relied on the report's conclusion, that a Sunni will in general be able to relocate to Baghdad as long as it is not unreasonable, based on their specific circumstances. In his submission, the appellants were properly documented and could return and access employment. Both she and her husband were educated people. They could obtain food supplies etc. there.
11. Mr McVeety also addressed the expert report produced by Sheri Laizer dated 29th June 2016. Sheri Laizer states that the mixed sect quarters of Baghdad have not only shrunken but are being further splintered by on-going fighting between militia groups. Mr McVeety observed that Miss Laizer did not disclose the basis for her assertion and submitted that there was no objective evidence to confirm that the mixed areas were shrinking.
12. Finally, it was reasonable to assume that the appellant's brother might give her some assistance since the evidence was not that they had quarrelled. Whilst there would undoubtedly be difficulties, in his submission, it would not be unduly harsh for them to relocate to Baghdad.
13. Miss Smith argued the opposite.
14. Like Mr McVeety, she referred me to the CIG Report of August 2016 which states, at 2.2.6
"Sunni internally displaced persons who generally lack support networks and economic means are more vulnerable to suspicion and abuse. Decision makers need to consider each case on its merits."
15. The CIG was dealing with the position of Sunnis in Baghdad and not Sunni/Shia families, and the focus of the report was on individual Sunnis who could reasonably live in pockets of Baghdad. For this family to live safely, each of them would have to be tolerated by the other community. In order to be relatively safe, the appellant and her husband would have to live separately in their own sectarian areas, which would be unduly harsh and not in their children's best interests.
16. She referred to Sheri Laizer's report which states that as a Sunni, the appellant could not relocate to a Shia area of Baghdad. Her clear view was that mixed marriages are not tolerated by extremist groups on either side of the sectarian divide.
17. There was a distinction to be made between mixed areas where Sunni families lived in proximity with Shia families and mixed marriages between Sunni and Shia, and the clear evidence from the expert was that in any event, mixed areas had been reduced.
18. In her initial report, prepared for the first hearing, Sheri Laizer was asked to comment on whether it would be unduly harsh to expect the appellant to relocate. She wrote:
"8(v) In practical terms when moving around Iraq and in and out of Shia or Sunni areas respectively, it must be emphasised that check points and road blocks exist throughout Iraq where people's details are checked before they are able to travel onwards. Mrs [S] will be swiftly identifiable throughout Iraq as a Sunni Arab registered in Basra, a mainly Shia area. When checking the registered it will be seen she has married a Shia. Once, this was tolerated. Currently mixed marriages are opposed. Moreover, people outside their traditional sectarian areas are viewed with suspicion, even hostility.
(vi) Those unfamiliar with the sectarian divide and shifting areas of control, face high generalised risks. As a woman she cannot go safely anywhere alone under the new rules of Sharia Law. She would be expected to be accompanied by a male relative. Because the couple are a mixed Sunni Shia couple it makes it very difficult for them under the changed climate to travel and stay together without either one being targeted or both because it is a mixed marriage. Such has become increasingly difficult over the past two years."
19. Miss Smith pointed out that the family had been out of Iraq for a lengthy period of time and would find it more difficult to move around confidently.
20. She submitted that the UNHCR Report on the Availability of an Internal Flight Alternative in Baghdad for Sunni Arabs dated 31 May 2016 was consistent with the evidence from Sheri Laizer when she described the difficulties for the family in moving around through the checkpoints within the city. The report records incidents of IDPs being stopped at checkpoints and interrogated by the ISF. As a result some IDPs limit their movements to their initial sponsor's area of residence and tend to remain within those areas. This was consistent with Sheri Laizer's report, when she said that IDs must be shown at any official or unofficial checkpoint and from the ID a person's sect is evident based the different names used by Sunnis and Shias. The appellant's origins would be shown on her ID card and her surname is her family name which would potentially identify her as a Sunni.
21. Finally, Miss Smith submitted that the appellant could not access meaningful support from her brother, who had disapproved of their marriage. The fact that they had not been in contact for seventeen years was a strong indication of his feelings.
Findings and Conclusions
22. I have no hesitation in finding that it would be unduly harsh for the appellant and her family to be expected to relocate to Baghdad.
23. Her credibility is not at issue. She has been found to be a truthful witness. There is therefore no basis for impugning her evidence that she could not access meaningful or indeed any support from her elderly brother whom she has not seen for seventeen years and who disapproved of her marriage.
24. I have the benefit of two reports from Sheri Laizer. The original judge said that he found her first report to be extremely helpful and her views were supported by references and methodology. Mr McVeety was not able to make any meaningful criticism otherwise than to say that the comment about shrinking mixed areas was unsourced. It is correct that no specific reference has been given in the report to the shrinking of mixed sect quarters but, in the context of the present surge in sectarian violence it is very likely that this should be the case. In itself it is not a basis for rejecting her conclusions. They are corroborated, so far as the checkpoints are concerned at least, by the UNHCR. The report is not inconsistent with the Home Office's own CIG which of course does not deal with mixed Sunni/Shia families but only to the risk to Sunnis. The CIG states that Sunni IDPs who generally lack support networks and economic means are more vulnerable to suspicion and abuse. This is the case here.
25. There is no support network for the family in Baghdad. Whilst the couple are well educated, there is no prospect of immediate employment. The fact that the marriage is mixed is of itself bound to increase adverse attention.
26. Mr McVeety's strongest point was that there are many mixed marriages in Iraq. He may well be right, and not all of them will be at risk. However, this appellant is in a more difficult situation, since she will not be returning to her home area where she is known and where she could access support from her family.
27. In AA the Tribunal set out the factors likely to be relevant in assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad. They are as follows:
(a) Whether OP has a CSID or will be able to obtain one;
(b) Whether P can speak Arabic (those who cannot are less likely to find employment);
(c) Whether P has family members or friends in Baghdad able to accommodate him;
(d) Whether P is a lone female (women face greater difficulties than men in finding employment);
(e) Whether P can find a sponsor to access a hotel room or rent accommodation;
(f) Whether P is from a minority community;
(g) Whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs."
28. The appellant has the proper documentation and can speak Arabic. Those are factors in favour of her being able to reasonably relocate in Baghdad. However she has no family members or friends, she has no sponsor, she is from a minority community and there is no evidence of support available for her. Whilst she is not a lone female, her husband is from the other side of the sectarian divide, and the evidence from the expert suggests that that in itself enhances her risk. If returned to Baghdad there is the clear risk that the family could not all live together, clearly against the best interests of the children.
Decision
29. The original judge erred in law. His decision has been set aside. It is remade as follows. The appellants appeals are allowed

No anonymity direction is made.

Signed Date 8 September 2016

Deputy Upper Tribunal Judge Taylor