Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/10840/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 29th June 2016 & 5th December 2016
On 5th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Secretary of State for the Home Department
Appellant

and

D s a
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Mrs R Pettersen, HOPO (Hearing on 29th June 2016)
Mr M Diwnycz, HOPO (Hearing on 5th December 2016)
For the Respondent: Ms S Hussain of Legal Justice Solicitors (on both dates)

DECISION AND REASONS

1. This is the Secretary of State's appeal against the decision of Judge Caswell made following a hearing at Bradford on 4th April 2016.
Background
2. The claimant is a citizen of Iraq born on 12th October 1981. He arrived in the UK on 30th March 2015, illegally, and claimed asylum and humanitarian protection. He was refused on 23rd July 2015.
3. The facts in this case are not in dispute. DSA lived in Fatuma Village near Makhmur in Iraq and is an ethnic Kurd and a Sunni Muslim. On 7th August 2014 his village was shelled by ISIS. He managed to flee to Erbil in Iraqi Kurdistan.
4. It is the Secretary of State's case that the claimant can safely be returned to Erbil.
The Judge's Determination
5. The judge accepted that the situation in Iraq had changed since June 2015, the date of the refusal letter, which argued that Erbil was not currently at risk from ISIS and was accepting Kurdish refugees, and recorded the submissions made on the claimant's behalf that the IKR was no longer violence free and safe.
6. She considered the country guidance case of AA (Article 15C) [2015] UKUT 544 which concluded that a Kurd who did not originate from the IKR could obtain entry for ten days as a visitor and then renew the entry permission for a further ten days. If he found employment he could remain for longer although he would need to register with the authorities and provide details of that employer. There was no evidence that the IKR authorities proactively remove Kurds from the IKR whose permits have come to an end.
7. She accepted the submission that he would not be able to stay in Erbil or indeed gain entry there because the Rules for sponsorship had changed. The claimant said that the Rules now state that the sponsor must be a government employee or similar and have a monthly income of 1.5 to 2 million rials. Moreover, persons from his area were regarded with suspicion as suspected ISIS fighters or activists and Kurdistan was concerned with the threat from ISIS with the Kurdish region.
8. She concluded as follows:
"It follows that I find the appellant would face a real risk of persecution on the grounds of imputed political opinion if returned to his country and is entitled to be recognised as a refugee. I also find that he faces a real risk of treatment breaching his Article 2 and 3 rights if removed to Iraq. In view of my finding that he is a refugee, the question of humanitarian protection under the Directive does not arise. However, I should say, for the sake of clarity that, if I had not found the appellant to be a refugee I would have allowed the appeal under the Directive, on the basis that the appellant faces a real risk of serious harm if returned to Iraq in the current conditions."
9. The judge then said in her decision that she dismisses the appeal on all grounds.

The Grounds of Application
10. The Secretary of State makes no reference in the grounds to the fact that the judge has in fact dismissed the appeal, but argued that she was not entitled to depart from the recent country guidance decision and had failed to have regard to the very high threshold required outlined in SG (Iraq) v SSHD [2012] EWCA Civ 940 which sets out the test which might be appropriate to depart from existing country guidance. Furthermore she had failed to give adequate reasons why the claimant succeeds on asylum grounds since a fear of ISIS in insufficient to found a claim for asylum.
11. Permission to appeal was granted by Judge Page on 19th May 2016 for the reasons stated in the grounds.
Submissions
12. Mrs Pettersen relied on her grounds and Ms Hussain submitted that the judge was entitled to reach the conclusions which she did.
Consideration of whether the Judge erred in law
13. I am satisfied that this decision has to be set aside.
14. First, the test set out in SG is not met.
15. At [47] the Upper Tribunal said:
"It is for these reasons as well as the desirability of consistency that decision makers and Tribunal judges are required to take country guidance determinations into account and to follow them unless very strong grounds supported by cogent evidence are adduced justifying their not doing so."
16. The oral evidence of the claimant, unsupported it seems by any documentary evidence referred to in this determination, was not a proper basis upon which to conclude that the claimant would not be able to obtain sponsorship to enter the IKR.
17. Second, the conclusion that the claimant is entitled to refugee status solely on the ground that his home area has been bombed by ISIS is not a sufficient basis to conclude that the claimant would be at real risk of persecution on the grounds of imputed political opinion.
18. Third, although not argued in the grounds, the judge clearly erred in stating that she dismissed the appeal on all grounds when it is quite apparent from the determination that she intended to allow it on asylum grounds.
19. It was not possible to re-make the decision without further evidence and accordingly the appeal is adjourned for a further hearing with the following directions:
(a) All the findings of fact made by the judge in relation to the claimant's personal circumstances are to stand.
(b) Both the Secretary of State and the claimant are to provide evidence at the next hearing in relation to the sponsorship of Kurds not originating from the IKR.
(c) Any expert report or written response by the Secretary of State to be filed with the Tribunal and the other party 21 days before the hearing. Such reports/submissions to deal specifically with the issue of sponsorship and on travel from Baghdad to Erbil.
Resumed Hearing
20. Before the hearing Legal Justice Solicitors provided a report from Dr Rebwar Fatah addressing the viability of the claimant's return to the KRG.
Submissions
21. Mr Diwnycz relied on Dr Fatah's report which stated that Mr Ali would not need a sponsor to relocate to the IKR. He is from Fatum Village in Makhmur, which, since 1991 has been part of the Erbil governorate and under the jurisdiction of the KRG. He should not encounter significant difficulties entering into the region and, once there, he would be at much lower risk of violence as militia/insurgent groups do not operate there.
22. Ms Hussain relied upon the caveat in Dr Fatah's report, that, in order to move freely within the IKR he would need his CSID and if he wished to relocate there he would need to provide details to the local security.
23. He would be removed to Baghdad, and would have difficulty obtaining the documentation necessary to relocate to the IKR since it was not disputed that his village had been raised to the ground and he had no contact with his family. It would be unreasonable to expect him to relocate to Baghdad, for the reasons set out in AA. He would be unable to reach the IKR without travelling through contested areas.
Findings and Conclusions
24. Mr Ali is not a former resident of the Iraqi/Kurdish region. According to the First-tier Judge's determination the village was in a disputed area between Baghdad and Kurdish Iraq. His village was within Iraq itself, albeit that it is controlled by the Erbil governorate.
25. According to head note (5) of AA "Return of former residents of the Iraqi/Kurdish region will be to the IKR and all other Iraqis will be to Baghdad".As he is not a former resident of the IKR he will be returned to Baghdad.
26. Mr Ali has been considered as wholly credible both by the Secretary of State and by the First-tier Judge.
27. AA considers the viability of internal relocation to Baghdad and, at paragraph 15 considers that the following factors are likely to be relevant in considering whether it would be unreasonable or unduly harsh to do so:
"(a) whether P 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 claimant does not have a CSID. He cannot speak Arabic, but Kurdish, and has no family members of friends in Baghdad able to accommodate him. He is from a minority community with no known support available to him.
29. I conclude, bearing in mind those factors, that it would not be reasonable to expect him to relocate to Baghdad. He would undoubtedly have to remain there for a certain period of time whilst he obtained the relevant documentation. In order to obtain a CSID he would have to either go to his home area or for someone to go there on his behalf. There is no dispute that his village has been destroyed and it is in a contested area. It would plainly not be possible for him to obtain a CSID from there.
30. Having obtained one, he would then have to make the journey from Baghdad to Erbil.
31. According to Dr Fatah's report, at paragraphs 182 and 183:
"However, driven by events, there has also been increasing tension between Shias and Kurds. While GOI forces are made of Shia militias there is also the risk that Kurds travelling from Baghdad to the IKR will also be at risk of discrimination, arbitrary procedures or even the threat of violence. This is an issue that is unreported in local media, although it is well-known that travelling through checkpoints can present a risk to civilians.
In addition to the danger from checkpoints, road travel in Iraq from Baghdad to the IKR region can be significantly dangerous due to the security situation. Travelling from Baghdad to the IKR by road requires taking one of three routes, Salahudeen, Kirkuk or Diyala. Kirkuk remains a contested area while Salahudeen and Diyala are key centres of violence and remain very unstable in Iraq, registering large civilian casualties. It is plausible that Mr Ali may be at risk from the violence in contested areas were he to travel from Baghdad to the IKR."
32. There is the alternative of air travel, but that requires the possession of official documents.
33. Ms Hussain submitted that the claimant's appeal should be allowed on the basis that, if the claimant were able to gain entry to Erbil, it would not be reasonable to expect him to remain there. She provided little support for this submission, which is contrary to the conclusions set out in AA and, more importantly, contrary to the report from her own expert which concludes that Mr Ali would be safe in the IKR. Ms Hussain referred to the risk of destitution for him there, and to the information in the original bundle relating to Syrian refugees returned to Syria from Kurdistan. That in itself is not sufficient to outweigh the conclusions in AA. The claimant is a healthy young man with no significant health problems who was working in a factory when the bombing started and therefore has some skills which could be utilised upon his return, including the ability to gain lawful employment. Moreover he will have gained experience and skills through his time in the UK and have the benefit of support given to returned failed asylum seekers.
34. Whilst it is clear that if the claimant were to be able to obtain the relevant documentation, and if he were able to present himself to the IKR authorities, he would be able to reasonably relocate there since the region is safe and the claimant, like the population, is an ethnic Kurd, with no known vulnerabilities, and he could reasonably be expected to make his life there.
35. However, that is not his situation. He would not be returned directly to the IKR but to Baghdad. It would not be reasonable to expect him to remain in Baghdad for the reasons set out in AA. It is likely that he would have to be there for a significant period of time whilst he organises his documentation, even if that were possible. I accept Ms Hussain's submission that travel between Baghdad and the IKR at then present time, given that the claimant would have to travel through contested areas, is not safe.
36. In the grounds of application the Secretary of State argued that it was not open to the judge to decide that the claimant was entitled to refugee status on the basis of a fear of ISIS. This was not a matter addressed in the reasons for refusal letter or by Mr Diwnycz today. The hearing focused simply on the viability of return to the IKR.
37. At his interview the claimant said that he feared being killed by ISIS because Daesh killed everyone and did not discriminate. They shelled his village and destroyed it.
38. However the Kurds are a prominent part of the coalition of forces currently fighting IS in Mosul. The Secretary of State does not appear to dispute that they are in charge of the claimant's home area. If he were to return there he would be at risk from them because he is a Kurd and that is sufficient to enable a grant of refugee status.
Notice of Decision
39. The original judge erred in law and her decision is set aside. It is re-made as follows. The claimant's appeal is allowed.

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.

Signed Date 5 January 2017

Deputy Upper Tribunal Judge Taylor