Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: AA/10270/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 August 2016
On 8 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

H B O
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Cooray, JCWI
For the Respondent: Mr Kotas, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Fenoughty ("the FTTJ") promulgated on 30 March 2016, in which the FTTJ dismissed the appellant's appeal on all grounds.

2. An anonymity direction was not made in the First-tier Tribunal but, given that the appellant will be removed to Iraq as a failed asylum seeker, I make such a direction now.

Background

3. The appellant is a citizen of Iraq. The respondent refused his asylum claim on 3 July 2015. He appealed to the First-tier Tribunal but his appeal was dismissed. The appellant claimed his father was a high-ranking member of the Ba'ath party, that threats had been made and that he and his family were at risk. The FTTJ found the Tribunal "could not place significant weight on his evidence" [67]. The FTTJ found the appellant was not at risk on return, taking the guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) into account. The FTTJ also dismissed the appeal on human rights grounds (Articles 3 and 8).

4. The appellant sought permission to appeal and this was granted in the following terms:

"..

2. The grounds seeking permission claim that the judge had failed to consider and apply properly to the appellant's case AA (Article 15(c) Iraq CG [2015] UKUT 544 (IAC) as the appellant had no CSID and thus it would not be possible for him to reside in Baghdad, obtain a CSID or travel to the IKR either by land at all, or absent a CSID, by air.

3. Notwithstanding the comprehensive decision by the judge, I find that the grounds disclose that decision appears not to be consistent with the approach in AA on such matters and thus may be vitiated by a material arguable error of law."

5. Hence the matter comes before me.

Submissions

6. Mr Cooray, for the appellant, relied on the reasons for appeal to this tribunal which I summarise as follows:

a. The FTTJ had accepted the appellant did not have a CSID; AA [11] indicated that there was a risk of destitution, amounting to a breach of Article 3, without a CSID.
b. There was no evidence the appellant would be able to provide the required information to obtain a CSID from the authorities; nor was there evidence that records were maintained for persons from Kirkuk (the appellant's home area);
c. The evidence did not demonstrate there was any office in Baghdad, or any safe part of Iraq, to which he could apply for a CSID.
d. The appellant could not be expected to reside in Baghdad without a CSID.
e. The FTTJ had assumed the appellant could travel from Baghdad to the IKR; yet land travel was not possible according to AA: this would entail crossing contested areas.
f. Whilst it was accepted there were flights from Baghdad to Erbil, the appellant had no documentation to enable him to board such a flight.

7. Mr Kotas, for the Secretary of State, noted there was no dispute that the appellant's return was feasible. The appellant had overstated the importance of having a CSID when family support was available (as the FTTJ had found). The lack of a CSID was not "the be all and end all". He referred to paragraph 71 to the effect that there was no evidence before the FTTJ as to whether the appellant could remember the volume and page number of the relevant book for establishing his identity. The appellant's grounds of appeal to this tribunal overlooked the FTTJ's findings on credibility which were relevant to an assessment pursuant to Article 15(c). The FTTJ described the appellant's evidence that his mother and uncle had remained in the most dangerous areas of Iraq as "inconsistent"; the tribunal "did not accept his assertions that either they or he would be put at risk if he made contact with them, or that they would be unwilling to assist him because of risk to themselves" [74]. Mr Kotas relied on paragraph 12 of the AA headnote. He noted that internal relocation was addressed by the FTTJ in the alternative: if it were not safe in Baghdad, he could travel to the IKR; no particular documents were required for that. He was a Kurd and would be issued a visit visa which was renewable.

8. In reply, Mr Cooray accepted that AA contemplated both the availability of a CSID and the existence of family support. His primary submission was that the appellant, being from Kirkuk, would have particular difficulties getting a CSID even if he had knowledge of the reference books and even if he had family support. That said, he accepted there had been no evidence before the FTTJ on this issue. Whilst there was no challenge to the findings of fact on that score Mr Cooray submitted the FTTJ had failed to address fully whether that support could be accessed by the appellant. The evidence was that the family had been in Kirkuk and had moved to Mosul; the appellant's account was disbelieved but the FTTJ had made no specific finding as to the location of the family now; the possibility of support from the family was only realistic if the family was not in the Kurdish region. He accepted that if the appellant were removed to Baghdad and his family were in the Baghdad administered areas, that would be the end of the case. However, if the family was in the Kurdish region, there should have been consideration of whether it was feasible for the appellant to travel there. It was accepted it was difficult for the appellant to counter the submission of the respondent on the issue of air travel to the IKR because there had been no evidence before the FTTJ to suggest an ID document was required for the flight. He also accepted there was no reference in AA to such a document being needed for travel to the IKR and that no such evidence had been provided to the FTTJ.

Discussion

9. The appellant does not challenge the feasibility of the appellant's return or that he would be returned to Baghdad. The headnote to AA summarises: "The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer". It is stated at paragraph 6 of the headnote that "no Iraqi national will be returnable to Baghdad if not in possession of one of these documents". The appellant does not have an expired passport. He would therefore be returned on an emergency travel document.

10. Paragraph 11 of the headnote to AA states:
"11. Where P's return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID."
11. Irrespective of the FTTJ's finding with regard to the availability of family support, the lack of a CSID in the short term after his arrival would not lead to serious harm because the appellant would have funds made available by the respondent or her agents in that period. This is irrespective of the appellant's ability to obtain one and to "access the full range of state support, and it accepted that there may be difficulties in obtaining identity documentation because of the violence in his home area, and the uncertainty surrounding the procures for establishing his identity, although there were a number of routes available, without personally returning to the area." [75]. The FTTJ finds at paragraph 74 that the appellant would be returned to Baghdad but, as a Kurd, could gain temporary admission, without needing a sponsor, to the IKR. This aspect of the decision is not challenged. It is also accepted by the appellant, before me, that there was no evidence or background material before the FTTJ to suggest that the appellant's lack of a CSID would prevent him from taking a flight from Baghdad to Erbil.
12. Thus, even in the absence of a specific finding as to the location of the appellant's family and their practical ability to support the appellant, there can be no material error of law because FTTJ had found, following the guidance in AA, the appellant did not need either a CSID or family support in the short term. Both Mr Cooray and Mr Kotas agreed that AA does not rule out travel to the IKR from Baghdad by air on an emergency travel document. Both were also in agreement that a visit visa could be obtained without difficulty and that stay could be extended if the applicant obtained employment. The FTTJ made a finding that the appellant would be able to work there [74]. The FTTJ also found the appellant would have the benefit of family support if he were in the IKR [74]. Mr Cooray accepted there was no evidence before the FTTJ to suggest that the lack of a CSID would hamper the appellant's ability to take a flight from Baghdad to Erbil. For these reasons, I am satisfied the FTTJ made a fact-sensitive assessment of the reasonableness of relocation to the IKR as required by paragraph 171 of AA.

13. For these reasons, the FTTJ took into account appropriately the guidance in AA and made findings which are sustainable on the evidence available at the date of hearing. There is no material error of law in the FTTJ's findings.

Decision

14. The making of the decision of the First-tier Tribunal did not involve a material error of law.

15. The decision of the FTTJ is upheld.

Signed A M Black

Deputy Upper Tribunal Judge A M Black Date 8 August 2016

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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.

Fee Award

The decision of the FTTJ not to make a fee award is also upheld.

Signed A M Black

Deputy Upper Tribunal Judge A M Black Date 8 August 2016