Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11006/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 18 April 2017
On 21 April 2017

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Sirwan Abdullah Hama
(ANONYMITY ORDER NOT MADE)
Appellant

And

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms K McCarthy, of Counsel, instructed by Pickup Scott Solicitors.
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer.

DECISION AND REASONS

Introduction:
1. The appellant is a national of Iraq of Kurdish ethnic origin from Basheer in Kirkuk who arrived in the United Kingdom on 29 December 2004 and claimed asylum on 16 February 2015. He was granted permission to appeal against a decision of the First-tier Tribunal (Judges O’Hagan and Parkes) (hereafter the “panel”) to dismiss the appeal of the appellant against a decision of the respondent of 23 July 2015 to refuse his asylum, humanitarian protection and human rights claims.
2. Following a hearing before me on 17 August 2016 and in a decision promulgated on 22 August 2016 (hereafter the “Error of law decision”), I set aside the decision of the panel, having concluded that it materially erred in law in its assessment of the future risk. My reasons are set out in the Error of law decision which is attached to this decision. In summary, I was satisfied that the panel had incorrectly decided the appeal on the basis that the appellant could be returned to the Iraqi Kurdish Region (“IKR”) directly subject to this being cleared with the IKR authorities, contrary to AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) which makes it clear that only Iraqi nationals who were formerly resident in the IKR would be returned to the IKR and that all other Iraqis would be returned to Baghdad. I was therefore satisfied that: (i) the panel had applied the country guidance in AA incorrectly; and (ii) that this had led it to omit considering the issues set out at para 9 of the Error of law decision, i.e. whether the appellant, as an individual who comes from the contested area of Kirkuk as opposed to the IKR and who would therefore be returned to Baghdad, could relocate safely and without undue hardship to Baghdad or to the IKR. The panel had failed to consider the factors listed at para 15 of the head-note of AA which fell for consideration in deciding whether it would be unduly harsh for an individual to relocate to Baghdad. These factors included consideration of whether the individual concerned has a Civil Status Identity Document (CSID) or would be able to obtain one.
3. At para 13 of the Error of law decision, I gave the following directions:

i) That the panel's assessment of credibility and its findings of fact on the appellant's evidence of the basis of his asylum claim stand.

ii) That the panel’s record of the evidence before it stands.

iii) That the panel's decision on the appellant's Article 8 claim stands.

iv) That the re-making of the decision on the appellant's appeal would be limited to the asylum claim, humanitarian protection claim and Article 3 claim. It was clear from the Error of law that the re-making would be limited to whether the appellant would be able to relocate safely and reasonably to Iraq and/or the IKR and, in the case of the IKR, whether he would be able to travel safely to the IKR.
4. This decision is the re-making of the decision on the appellant's appeal against the respondent's decision, limited to the issues explained above.
Basis of appellant's claim
5. The basis of the appellant's asylum claim may be summarised as follows: He is an Iraqi national of Kurdish ethnicity from Basheer in Kirkuk where he lived with his parents and his siblings (two sisters and one brother) until June 2014 when he went to visit his paternal uncle, Pishdar Hama, who lived in the Shorija neighbourhood in Kirkuk. When he tried to leave, his uncle told him not to return. Three days later, he was told by his uncle that the so-called “Islamic State in Iraq and Syria”, often referred to by the acronym “ISIS”, had taken over his home village and his parents killed by ISIS.
6. The appellant stayed on with his uncle but then experienced problems. His uncle mistreated him. He gave the appellant little food; he accused him of sleeping with his daughter; and he burned him on the arm with a hot knife. There were several other incidents of violence. They also argued when the appellant asked for the return of money that his uncle owed his father. His uncle did give him the money. The appellant left his uncle's home and made his way out of Iraq, crossing into Turkey with the help of an agent, then travelling to another country which he said was possibly Italy before travelling to France. After arriving in France, he travelled to Calais and subsequently made his final journey to the United Kingdom hidden in a lorry.
7. At para 47, the panel said that there were two strands to the appellant’s case, as follows:
i. the appellant's parents were said to have been killed when ISIS overran his home village in Iraq;
ii. the appellant was said to have suffered ill-treatment by his uncle, leaving him bereft of family support in Iraq.
The accepted findings and the panel's reasoning
8. As stated above, the panel's findings on the appellant's evidence of the basis of his asylum claim stand. On this basis, the following facts are accepted:
i. The appellant's date of birth is 1 January 1998 (para 46 of the panel's decision) and not 1 October 1998 as asserted by him. Accordingly, although he was a minor as at the date of the decision appealed against (23 July 2015), he had attained adulthood by the date of the hearing before the panel (25 May 2016) (paras 45 and 46 of the panel’s decision).
ii. The appellant is a national of Iraq, of Kurdish ethnic origin, from Basheer village in Kirkuk (para 5 of the panel's decision).
iii. The appellant's parents were killed when ISIS overran his home village in Iraq (para 48 of the panel's decision). At para 26 of her “reasons for refusal letter”, the respondent accepted that the appellant’s family were killed when ISIS overran his village in June 2014. Mr Jarvis accepted that it was not in dispute before the panel that the appellant's parents and siblings were killed.
9. The panel rejected the appellant's evidence about his difficulties with his uncle (paras 49-52). The panel also rejected the appellant's evidence about the circumstances of his departure from Iraq (paragraph 51).
10. The panel's reasoning is set out at paras 45-52 which read as follows:

“45. We will deal first with the issue of age which is in dispute between the parties. The Appellant says that he was born on 1st October 1998, and so was a child at the time when the decision was made, and will continue to be so until 1st October 2016. The Respondent does not accept the Appellant's account. Based upon an age assessment carried out by social services, the Respondent believes that the Appellant was born on 1st January 1998. Consequently, the Respondent accepts that the Appellant was a child at the time when the decision was made, but believes that he is no longer a child now, having attained adulthood on 1st January 2016.

46. The Appellant accepts that he has no evidence to support his account of his age. Given that obtaining documentary evidence can be difficult, we do not consider the lack of such evidence to be a factor which undermines the Appellant's account. It is, rather, a neutral factor which neither supports nor undermines the Appellant's position. We have noted that the Appellant has not sought to suggest that social services failed to comply with the Merton guidelines, and nor has he presented an age assessment of his own. At its highest, his case is a matter of mere assertion. We prefer to rely upon the properly conducted assessment conducted by social services, particularly as the methodology employed has not been challenged, and given that, for the reasons set out below, we found the Appellant generally to be an unreliable witness.

47. We turn to consider the claims made by the Appellant in support of his case that he qualifies for asylum, or humanitarian protection, or by virtue of the rights set out in Articles 2 and 3 of the European Convention on Human Rights. There are two strands to the case as follows:

(i) the Appellant’s parents were said to have been killed when ISIS overran his home village in Iraq; and

(ii) the Appellant was said to have suffered ill treatment by his uncle, leaving him bereft of family support in Iraq.

48. The first strand of the case, that the Appellant’s parents were killed when ISIS overran his home village in Iraq, is not in dispute between parties. In respect of the second strand, having considered all of the evidence, we conclude that the Appellant’s account is not credible. We find that he has fabricated this aspect of his claim. We will set out our reasons for reaching that conclusion below. Before we do so, it is important that we should emphasise that, in reaching our conclusions about the credibility of the claim, we do not consider any one of the matters identified as being determinative. Rather, each of the individual matters identified has formed a part of the jigsaw of evidence before us. It is the cumulative impact of all of those matters, considered in the round as part of the overall tapestry of oral and written evidence, which leads us to reach our conclusion.

49. The Appellant's account of the circumstances in which he came to stay with his uncle in June 2014 makes little sense. If the Appellant is to be believed, he decided to remain with his uncle, essentially on a whim, when he went to visit his uncle with his father. That would have been understandable had the Appellant had a good relationship with his uncle, but it is his account that he did not. Moreover, if the Appellant is to be believed, his father’s reason for going to see his uncle that day was to recover money which his uncle owed to him in connection with a car business that they ran together. The Appellant's account suggests that his father was not well disposed towards his uncle on the journey out, and that the meeting between them was acrimonious. It is difficult to understand why, in circumstances such as these, the Appellant would have decided that he wanted to stay with his uncle. A further puzzling feature of the Appellant's evidence is his account that his father gave him 20,000 dinar when he left. It is unclear why the Appellant’s father would have done such a thing, given that he could not have known at the time that ISIS would overrun his home village a few days later. So far as he would have known, his son was staying with his uncle for a few days, and would then be returning home.

50. The Appellant's account of the 30,000 dinar which his uncle gave him is equally problematic. It is not at all clear why the Appellant's uncle would have given the money to the Appellant, having failed to give it to his father. That is all the more so as the Appellant would have been 16 years old at the time, and, on his account, the relationship between them was poor. There is also the inconsistency between what was said at interview, that the money was given when the Appellant left, and his evidence at hearing that the money was given towards the start of his stay. There is the further inconsistency that, in his evidence to us, the Appellant said that his uncle gave an additional 7,500 dollars, something he had not mentioned before. Further, it is difficult to understand why his uncle would have been willing to give the Appellant money at the point of his departure if, as was said, his uncle believed that the Appellant had entered into a sexual relationship with his uncle's daughter. On his account, his uncle was so angry about that that he deliberately burnt the Appellant’s arm. It does not particularly matter for these purposes whether the Appellant's uncle was right or wrong to believe that the Appellant had entered into a sexual relationship with his daughter; the point is that, if his uncle did believe such a thing, it was unlikely that he would be sufficiently well disposed towards the Appellant as to give him a large sum of money.

51. A further difficulty in the Appellant's account is that to accept it requires us to believe that a 16-year-old boy, with no adult guidance or support and minimal advice from friends in the village, managed successfully to leave Iraq, and to navigate his way from there to Turkey, and from Turkey across Europe to the United Kingdom. Such a thing is not impossible, but it would be difficult to achieve and, given the other implausible aspects of his account, we rejected his evidence on this point.

52. In respect of the Appellant's claim that his uncle burnt his arm, we noted the inconsistency as to whether the arm was burnt with a knife or a stick. The Appellant says that that is no more than a translation error. Had the evidence as a whole pointed to his account being credible, we would have accepted it as being no more than that. The other evidence does not, however, support the account. In respect of photographs presented on the day of the hearing, at the highest, they establish no more than that there is some scarring to the Appellant's arm. They do not establish how the scarring was caused. Again, had the evidence as a whole pointed to the account being reliable, we would have been prepared to accept the photographs at face value, but the evidence does not support the account.”
The appellant’s supplementary witness statement dated 23 September 2016
11. The hearing before me on 17 August 2016 was adjourned for the reasons explained at paras 14-15 of the Error of law decision, which included the fact that there was no evidence before me of the whereabouts of the appellant's uncle.
12. The appellant served a witness statement dated 23 September 2016, in which he states, in summary, as follows:
i. He has not had any contact with his uncle since he left Iraq. He does not know if he would be able to find his uncle. He does not know if his uncle is still in Iraq.
ii. He would not be able to live in the IKR as he does not have any passport or other documents such as a civil status identity document which would enable him to obtain a passport. He would be a young person in the IKR with no family or friends and nowhere to live, no food, no income and no means of providing for himself. He does not have a sponsor to enable him to live in the IKR. He does not know how he would survive in the IKR because things are very different there. He would not be able to live in the IKR without a sponsor, and would therefore have to leave after 15 days.
iii. Although he has received some education, he does not believe that this would help him obtain employment in Iraq. He attended school in Iraq for a period of 2 months when he was 6 years old.
iv. He has started to make a life for himself in the United Kingdom. He attends college full-time and is studying to improve his English. He wishes to complete his ESOL (English as a Second Language) course and obtain qualifications to enable him to work and contribute to the UK. He has been unable to obtain opportunities to do volunteer work due to his lack of status in the UK. He has made new friends with whom he plays football and goes swimming in the United Kingdom.
Preliminary points
13. I will deal with two points that arose at the hearing. For want of a better term, I have called them “preliminary points”, as they do not fall to be described as “preliminary issues” as that phrase is normally understood.
14. The first is that Mr Jarvis submitted that there is further evidence which post-dates the country guidance case of AA and sheds further light on the situation in Kirkuk. In the light of such further evidence, it is it respondent's position that Kirkuk is a reasonable internal flight alternative destination other than the areas in and around Hawija. The further evidence is at page 29 of a document issued by the UNHCR of May 2016 entitled: “Relevant COI for Assessments on the Availability of an Internal Flight or Relocation Alternative (IFA /IRA) in Baghdad for Sunni Arabs from ISIS-held Areas” (hereafter the “UNHCR COI”), the first para on page 29 of which states:

“The vast majority of IDPs [internally displaced persons] in Baghdad are in need of humanitarian assistance. Returnees from abroad are not as such entitled to any particular assistance from government bodies or humanitarian actors; however, they could be assisted by humanitarian actors on a case-by-case basis as IDPs, if they meet established vulnerability criteria.”

(my emphasis)
15. It is the respondent's position that this evidence in the UNHCR COI justifies departing from the country guidance in AA, para 200 of which states:

“…, we have also been provided with evidence regarding numerous organisations operating in Baghdad that provide assistance to displaced persons. However, we take cognisance of the fact that a staff member at the Ministry of Displacement and Migration informed Dr Fatah that failed asylum seekers are not treated as IDPs by the Ministry and that the Ministry only had an obligation to assist IDPs. An organisation named Harikar also told Dr Fatah that they focused on IDPs and not failed asylum seekers. UNHCR and the Ministry of Interior were not able to provide any information about whether or not failed asylum seekers would be able to access support or assistance provided to IDPs.”

(my emphasis)
16. It is therefore the respondent's position that the position of failed asylum seekers has improved since AA, in that, those who “meet established vulnerability criteria” could be assisted on a case-by-case basis as IDPs. However, Mr Jarvis did not have any material that explained what criteria needed to be satisfied in order to qualify for such assistance. He asked for an opportunity to submit such evidence.
17. I refused the application. I had given notice to both parties, at the hearing on 17 August 2016, that the directions issued at the hearing and confirmed in my Error of law decision were to be complied with on a timely basis in order to avoid any further adjournments, the adjournment of the hearing on 17 August 2016 itself having been necessitated because the parties were not ready to proceed. Mr Jarvis had submitted his supplementary skeleton argument late to which Ms McCarthy helpfully did not object. It was open to Mr Jarvis to have submitted such further evidence as he wished to rely upon with his supplementary skeleton argument, an opportunity which was missed. If he were to be given an opportunity to submit such further evidence now, the appellant may wish to reply especially given the importance of any decision on the question whether the evidence relating to the situation in Kirkuk justified departing from AA. If the appellant did seek such an opportunity, this would cause further delays. Having regard to the overriding objective, I decided to refuse Mr Jarvis’ application for time to submit the “vulnerability criteria”.
18. The second issue concerns the feasibility of the appellant's return. Mr Jarvis submitted that, without accepting the appellant's evidence that he is unable to obtain the necessary documents to render his return feasible, the respondent's position was that the sole reason for the appellant's asserted risk of harm or allegation that internal flight alternative was unduly harsh or unreasonable was based on his lack of documentation rendering his return to Iraq unfeasible. He therefore submitted that the appellant could not succeed in his claim for international protection pursuant to paras 5-8 of the head-note of AA, para 168 of AA and para 40-41 of R (H) v SSHD (application of AA (Iraq CG) IJR [2017] UKUT 00119 (IAC), which read:

Paras 5-8 of the head-note in AA:

“B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)

5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. 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.

6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.

7. In the light of the Court of Appeal’s judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P’s return is not currently feasible, given what is known about the state of P’s documentation.

C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE

8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.

Para 168 of AA:

168. We consider that the judgments in HF (Iraq) are of considerable importance in formulating any country guidance regarding entitlement to international protection claims involving lack of documentation. If return is not feasible (to use the term employed by Elias LJ), then it is plain from paragraph 101 of the judgment that a tribunal must not hypothesise any potential situations on return, by reference to what documentation the returnee may or may not have or be able to obtain. We simply do not know. It appears to us this means that many appeals to the First-tier Tribunal, arising from refused protection claims by Iraqis, will fall into this category. It will only be when return is found to be feasible that the issue of documentation (or the lack of it) will be able to play a part in the determination of an appellant’s entitlement to protection.

Paras 40-41 of R (H):

“40. There is a further, discrete reason why the respondent’s reliance on the “documentation” issue is misconceived. Having explained the importance, in its view, of HF (Iraq), the Tribunal in AA said:-

“169. On one reading of HF (Iraq) - particularly the highlighted passage in paragraph 101 - the impossibility of return could be said to make it unnecessary to hypothesise any risk to an appellant in the country of proposed return, whether or not stemming from a lack of documentation or similar problem. We do not, however, consider that the Court can be taken to have intended such a reading. There may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of lack of documentation. Were Nazi persecution of the Jews occurring today, it would clearly subvert the purpose of the Convention to deny refugee status on the basis that, regardless of what might happen to appellants on return because they are Jewish, they cannot in practice be returned (whether because of documentation or mere refusal to admit Jews to Nazi Germany). For this reason, we consider that the judgment in HF (Iraq) does not preclude a claim to international protection from succeeding, insofar as the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person's actual return unfeasible.

170. In the absence of an expired or current Iraqi passport, a person can only be returned to Baghdad using a laissez-passer. According to Dr Fatah, either a CSID or INC or a photocopy of a previous Iraqi passport and a police report noting that it had been lost or stolen is required in order to obtain a laissez-passer. If a person does not have one of these documents then they cannot obtain a laissez-passer and therefore cannot be returned. This has a significant bearing on what we have just said. If the position is that the Secretary of State can feasibly remove an Iraqi national, then she will be expected to tell the tribunal whether and if so what documentation has led the Iraqi authorities to issue the national with the passport or laissez passer (or signal their intention to do so). The Tribunal will need to know, in particular, whether the person concerned has a CSID. It is only where return is feasible but the individual concerned does not have a CSID that the consequences of not having one come into play.”

41. Two points emerge. First, a person who is found to be returnable (because he or she has or will be able to obtain a passport or laissez-passer) may, nevertheless, face difficulties if he or she cannot obtain a CSID, following return. Secondly (and crucially), a person whose return is not currently feasible may, nevertheless, still succeed in a claim to international protection, if and insofar as the claim is based on a real risk of harm, which arises otherwise than by not having the requisite documentation.”
19. However, it is the appellant’s case that he is at real risk of harm based on the cumulative factors in his case, i.e. that he is a Sunni by religion, (in relation to Baghdad) a Kurd by ethnic origin, a young person, a person with no immediate family in Iraq to assist him, his uncle was last known to be in Kirkuk, he would need sponsorship to access work, accommodation and the necessities of life in Baghdad and in the IKR as well as to extend his visa in the IKR, he has no trade or other skills enabling him to find employment in Baghdad or the IKR, (in relation to Baghdad) he does not speak Arabic and that, in the alternative, the cumulative factors in his case were such as to make internal relocation to Baghdad or the IKR unduly harsh or unreasonable.
20. Given that the factors relied upon include that he is a Sunni and that (in relation to Baghdad as an internal flight alternative) he is a Kurd by ethnic origin, I do not accept Mr Jarvis’s submission that the sole reason for the appellant's case that he is at real risk of serious harm and/or that an internal flight alternative to Baghdad or the IKR is unreasonable is that he lacks documents thus rendering his return unfeasible.
21. I therefore do not need to consider Mr Jarvis’ submission that para 8 of the head-note in AA applies not only in cases where the asserted risk of harm is based solely on lack of documentation which renders return unfeasible but also in cases where the only reason for alleging that an internal flight alternative is unreasonable or unduly harsh is the lack of documentation rendering return unfeasible.
The country guidance in the head-note of AA:
22. I have set out above paras 5-8 of the head-note in AA. Also relevant in assessing the issues in this case are paras 9-20 of the head-note in AA, which read:

“9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).

10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.

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.

12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P’s home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P’s ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P’s information (and that of P’s family). P’s ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.

13. P’s ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P’s Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.

D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)

14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.

15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:

(a) whether P has a CSID or will be able to obtain one (see Part C above);
(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.

16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).

E. IRAQI KURDISH REGION

17. The Respondent will only return P to the IKR if P originates from the IKR and P’s identity has been ‘pre-cleared’ with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.

18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.

19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.

20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K’s securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.

21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.”
Burden and standard of proof
23. The only issues before me are whether it would be safe and not unduly harsh for the appellant to relocate in Iraq, either to Baghdad or the IKR. The standard of proof is the low one of a reasonable likelihood
24. The burden is upon the appellant to establish his asylum, Article 3 and humanitarian protection claims. In relation to the asylum claim, it is for him to show that, in the place of relocation, there is a reasonable likelihood that he would be unsafe or that it would be unduly harsh for him to relocate. In relation to the humanitarian protection claim, it is for him to show that there are substantial grounds for believing that, in the place of relocation, he will face a real risk of suffering “serious harm” which is defined in para 339 of the Immigration Rules as the death penalty or execution, unlawful killing, torture or inhuman or degrading treatment or punishment or serious or individual threat to a civilian's life by reason of indiscriminate violence in situations of international or internal armed conflict. In relation to the Article 3 claim, it is for him to show that there are substantial grounds for believing that, in the place of relocation, he will be exposed to a real risk of torture or inhuman or degrading treatment or punishment contrary to Article 3.
25. Credibility was in issue before the panel. It is still in issue, in relation to the factual matters that are in dispute before me and which are relevant to the safety and reasonableness of relocation.
26. In assessing the credibility of the appellant's evidence on these issues, I have applied the guidance of the Court of Appeal in Karanakaran [2000] EWCA Civ 00011. I have considered the evidence as a whole, whether or not referred to specifically in this decision. I have given careful and anxious consideration to all of the evidence and materials before me in this case, the skeleton arguments and the submissions I heard, whether or not referred to in this decision. In reaching my findings of fact on the factual issues before me, I have done so on the basis of the cumulative impact of all the reasons given, including the panel's credibility assessment, considered in the round. I have made allowances for the appellant's age at the relevant times.
Assessment of credibility and further findings of fact
27. Ms McCarthy informed me that it was not intended for the appellant to give oral evidence before me. I drew her attention to the fact that the respondent disputed the appellant's evidence that he has not had contact with his uncle in Iraq and that, in the absence of any further oral evidence, I would have to assess the credibility of his evidence in his witness statement taking account of the panel's assessment of credibility. Ms McCarthy confirmed that no oral evidence would be given. In the course of her submissions on the availability of an internal flight alternative, Ms McCarthy submitted that the most that can be said is that the appellant's uncle was last known to be in Kirkuk.
28. The credibility of the appellant's claim that he has not had any contact with his uncle in Iraq and does not know his whereabouts is highly material. I do not agree with Ms McCarthy that my assessment of the availability of an internal flight alternative falls to be determined on the basis that appellant's uncle was last known to be in Kirkuk. Mr Jarvis relied upon paras 31-33 of the judgment of the Supreme Court in MA (Somalia) v SSHD [2010] UKSC 49 which read:

31. What Laws LJ was saying at para 54 was that, where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case. The Court of Appeal correctly stated at para 104 of its judgment in the present case:

"The lie may have a heavy bearing on the issue in question, or the tribunal may consider that it is of little moment. Everything depends on the facts. For example, if in the Eritrea cases the Secretary of State had prima facie evidence that the appellants had left legally, the tribunal might think it appropriate to put considerable weight on the fact that the claimant told lies when seeking to counter that evidence. The lie might understandably carry far less weight where, as in YL itself, the judge is satisfied that the appellant has lied where the lie is against her interests."

32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant's dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…."

33. Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA's appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant's lies.”
29. The only aspect of the appellant's evidence before the panel that was accepted by the panel was his evidence concerning the first strand of his case. It is clear from para 48 of its decision that this aspect of the appellant's case was not in dispute before the panel. Insofar as the factual issues were in dispute before it, the panel roundly rejected the appellant's evidence. It rejected his evidence of his date of birth, his evidence of his difficulties with his uncle and his evidence of the circumstances of his departure from Iraq.
30. As I have said, the appellant's evidence about his uncle, which has been found by the panel to be incredible, is highly material to the issues I have to decide, not only as to his circumstances on relocating in Iraq but also as to the feasibility of his return including whether he has a passport (expired or current) or would be able to obtain a CSID reasonably soon after arrival in Iraq. His evidence about the circumstances of his departure from Iraq is also relevant because on his evidence he travelled without a passport.
31. The appellant now says that he does not have contact with his uncle and does not know his whereabouts. Whilst I do not draw any adverse inferences against him from his decision not to give oral evidence, it does mean that it has not been possible to ask him how it came about that he lost contact with his only living relative whose assistance and guidance (on the panel's findings) he had in relation to his departure from Iraq and travel to the United Kingdom.
32. Such is the negative pull as a consequence of the lies the appellant has told about his alleged difficulties with his uncle, the circumstances of his departure from Iraq and journey to the United Kingdom, that I have serious doubts about the credibility of his evidence that he has not had contact with his uncle since his departure from Iraq and does not currently have contact with his uncle.
33. Ms McCarthy submitted that the respondent's dispute with the appellant's evidence that he has lost contact with his uncle is a red herring because (she submitted), taken at its highest, the appellant has an uncle in Kirkuk with whom his relationship is not acrimonious. Accordingly, she submitted that the fact that his uncle is in Kirkuk would not assist appellant to relocate to Baghdad or the IKR. The inference is that the Upper Tribunal is limited to the evidence that the appellant gave before the panel, i.e. that his uncle was in Kirkuk when he left Iraq. However, it is speculation to assume that the appellant's uncle is still in Kirkuk. There is simply no evidence about it one way or the other because the appellant has chosen not to divulge information that would go against him in his appeal.
34. In relation to the appellant's evidence of his departure from Iraq and travel to the United Kingdom, the panel summarised his account of his journey from Iraq at para 8 of its decision. Further details about that journey can be found in his answer to question 1.14 of his screening interview (Annex A). This includes his evidence that he met an agent in Zakho who charged him US$700 to take him across the border into Turkey but he negotiated the agent down to US$500. On arrival in Istanbul, he went to a Kurdish coffee shop, the manager of which directed him to a hotel where he could stay. He later found another agent in the coffee shop who agreed to help him get to Italy. He travelled to Italy in a lorry. In Italy, he found another Kurdish pizza shop and asked the shopkeeper for directions to France. The shopkeeper sent one of his friends to accompany him to the train station and helped him buy a ticket to travel to France by train. He stayed overnight in France and met some Arabic speaking people who he asked for help to get to Calais. The Arabic people advised him to get on to another train to Calais which he did. In Calais, he found an agent who agreed to help him and charged him $500. He was kept in Calais for ten days and eventually boarded a lorry to the United Kingdom.
35. In other words, the appellant gave evidence that he, as a 16-year old, was not only capable of making all of these arrangements himself without the help and support of any immediate family or relative, but capable of looking himself whilst he travelled through foreign countries with cultures vastly different to his own and, with the exception of Turkey, where the principal languages did not include Kurdish Sorani. Even taking into account the fact that the panel rejected his evidence that, without adult guidance or support and with minimal advice from friends in the village, he was able to successfully leave Iraq and navigate his way to the United Kingdom, that still leaves the fact that his account of his journey, even with adult guidance and support, shows that he was a brave 16-year old with strong resolve.
36. The appellant was interviewed through an interpreter in the Kurdish Sorani language. He gave evidence before the panel through an interpreter in the Kurdish Sorani language. There was an interpreter in the Kurdish Sorani language at the hearing before me to enable him to follow the proceedings. At questions A.19-20 of his “Statement of Evidence Form” (SEF) (Annex B of the statutory appeal bundle), it was said that Kurdish Sorani this was his preferred language and that there were no other languages which he spoke and which he would be content in using. I accept on the basis of all of this evidence that he communicates best in the Kurdish Sorani language.
37. Ms McCarthy submitted that the appellant does not speak Arabic. She drew my attention to the fact that he had said at his asylum interview that he left school after 2 months because the schooling was in Arabic. However, it does not follow, from the mere fact that he only attended school for 2 months, that he does not speak Arabic. His account of his journey to the United Kingdom includes his evidence that he met some Arabic speaking people in France who he asked for help to get to Calais and that these Arabic people advised him to get on to another train to Calais. Whilst I do not hold against him his decision not to give oral evidence before me, the fact is that, as a result of his decision not to do so, I do not have any explanation as to how he was able to communicate with these Arabic speaking people if he is unable to speak Arabic.
38. In his witness statement, the appellant states that he would not be able to obtain employment in Iraq. Although he says he has some education, he says this would not help to obtain employment in Iraq - a country in which he lived from birth for 16 years - as he only attended school for 2 months when he was 6 years old. Yet he believes that he can obtain qualifications to enable him to work in the United Kingdom, a country in which he has only lived for 2 years 4 months, compared with his 16 years in Iraq, and notwithstanding that he is not fully conversant with the English language. I am satisfied that he is someone who over-emphasises factors in his favour and sidelines those against him.
39. Ms McCarthy submitted that the appellant has not yet acquired any skills to enable him to obtain employment. He has only just turned 18 years of age. However, his account at his interview of his life in Iraq shows that he was not idle notwithstanding that he did not attend school. His family had a farm where they grew pomegranate, nuts and figs. He helped with the watering and labouring (questions 44-46 of Annex C), albeit that he said that his role was very limited. At question 1.14 of the “Pre-Appointment Questions” (Annex A), he said he was able to manage his money because he was trading in agricultural products. This was stated at the end of his account of his journey to the United Kingdom, wherein he mentioned the amounts he paid various agents on his journey across Europe to the United Kingdom.
40. Mr Jarvis asked me to reach findings concerning the credibility of the appellant’s evidence that he does not have documents and arrived undocumented. In other words, the respondent takes issue with the appellant's evidence at his asylum interview (questions 126 and 127) that he did not have any travel documents with him when he left Iraq and had never been issued with a travel document in Iraq. I can see no reason why the appellant’s uncle would have opted for the appellant to leave Iraq illegally and without a passport. On his account, there was no reason for the appellant to fear the Iraqi authorities. If he had given oral evidence, his evidence that, when he left Iraq, he did not have a passport, could have been tested. As it is, I take into account the fact that I can see no reason why his uncle would have opted for him to leave Iraq illegally and without a passport.
41. I do not hold against the appellant his decision not to give oral evidence. It is his right not to do so. It does, however, mean that I have to assess the credibility of his evidence in the factual issues before me on such evidence as is before me.
42. On the whole of the evidence and bearing in mind the burden and low standard of proof, I make the following findings of fact:
i. I do not accept that the appellant has lost contact with his uncle. I do not accept that he does not know the whereabouts of his uncle. The appellant has chosen not to divulge information about the whereabouts of his uncle and, as a consequence, there is no evidence whether his uncle is still in Kirkuk or has left Kirkuk for, for example, Baghdad or the IKR. I find that he has chosen to withhold information about the whereabouts of his uncle because his uncle's location would go against him in this appeal. I find that he is able to contact his uncle.
ii. I do not accept that the appellant was never issued with a passport in Iraq and/or that he did not have any travel documents with him when he left Iraq. He knows what he has done with his passport and is withholding that information because possession of it in the United Kingdom would destroy his wish to remain in the United Kingdom.
iii. I find that the adult guidance and support that the appellant received in relation to his departure from Iraq and travel through Europe was guidance and support from his uncle. In my view, this follows from the panel's reasoning. Even if I am wrong about that, I make this finding on the whole of the evidence.
iv. Not only does the appellant know the whereabouts of his uncle, I find that he is able to contact him to obtain documents to facilitate his removal.
v. I therefore find that the appellant's removal from the United Kingdom is feasible. He has access to his passport. In any event, with the help of his uncle, he is able to obtain identification documentation to enable the Iraqi authorities to issue a laisser passer.
vi. Kurdish Sorani is the best language of communication for the appellant. However, I do not accept that the appellant does not speak Arabic. To the contrary, I find that he does speak Arabic, albeit that it is not the best language of communication for him.
vii. I find that the appellant is a young man with fortitude and resilience.
viii. The appellant already has some skills, as he did manual work for his family on their family farm. In addition, he has had experience trading in agricultural products, even as a child. He is therefore a young, resourceful person who, on his own evidence (question 1.14 of the “pre-appointment questions”, Annex A) is able to manage money.
43. I turn to consider whether, if he relocates to Baghdad, the appellant is reasonably likely to obtain a CSID reasonably soon after arrival in Iraq. According to AA, a CSID is generally required in order for an Iraqi to access financial assistance from the authorities, employment, education, housing and medical treatment.
44. As the appellant comes from Kirkuk, which is a contested area, para 13 of the head-note in AA applies. In other words, the appellant's ability to obtain a CSID is likely to be severely hampered because he would be unable to go to the Civil Status Affairs (“CSA”) Office of his Governorate because Kirkuk is a contested area in which (according to AA, which I apply, although the respondent contends that further post-AA evidence justifies a departure from the guidance in AA) there are substantial grounds for believing that he would be at risk of serious harm. The country guidance states that the evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is a National Status Court in Baghdad, to which a returnee could apply for formal recognition of identity. However, the precise operation of this court is unclear.
45. On the basis of this evidence, I find that there is no reasonable likelihood of the appellant obtaining a CSID in Baghdad. However, this does not, of itself, mean that he is likely to face a real risk of destitution amounting to serious harm. In this respect, para 11 of the head-note in AA states, inter alia, as follows:

“…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.”
46. I turn to consider the issues of safety and reasonableness of relocation.
47. There is nothing in para 11 of the head-note which suggests that the “family or other members” referred to at para 11 must be “family or other members” physically present in Baghdad. There is no reason why “means of support” cannot be provided by family or other members living elsewhere in Iraq provided they have the means to provide such support.
48. The financial position of the appellant's uncle was such that he was able to provide the appellant with a significant amount of money to fund his departure from Iraq and journey to the United Kingdom. I have said that I do not accept that the appellant does not know the whereabouts of his uncle and I have found that he has chosen not to divulge information about the whereabouts of his uncle and that, as a consequence, there is no evidence whether his uncle is still in Kirkuk or whether he has left Kirkuk for, for example, Baghdad or the IKR.
49. However, even if the appellant's uncle is still in Kirkuk, that does not mean that the appellant would be without means of support in Baghdad. His uncle gave him guidance and support for the purposes of his journey to the United Kingdom in addition to providing a large sum of money. I find that it is reasonably likely that he will have means of support from his uncle in Baghdad once he exhausts any funds provided to him by the respondent to assist his return.
50. In relation to the remaining factors in para 15 of the head-note of AA, I have found that the appellant speaks Arabic, albeit that Kurdish Sorani is the best language of communication for him. The fact that he speaks Arabic will help him in Baghdad. It will help him to find employment. He has done manual work in the past and also traded in agricultural products.
51. In relation to the circumstances faced by Sunni Muslims in Baghdad, Ms McCarthy relied heavily upon the UNHCR COI. This document provides information in relation to Sunni Arabs in Baghdad. Information from this document was included in the Home Office “Country Information and Guidance” entitled: “Iraq: Return/Internal Relocation”, version 3.0 dated August 2016 (the “CIG report”). Ms McCarthy submitted, inter alia, that the UNHCR COI shows that at times Sunnis in Baghdad who are from ISIS-held areas are required to have a sponsor and that at times they are required to have a second sponsor.
52. This CIG report was before the Upper Tribunal in BA (returns to Baghdad) Iraq CG [2017] UKUT 000018 (IAC). Mr Jarvis informed me that the UNHCR COI was also before the Tribunal in BA. However, the Tribunal did not refer to it other than to quote from para 7.6.3 of the CIG which, in turn, quoted from the UNHCR COI.
53. The Tribunal in AA did not state that failed asylum seekers relocating to Baghdad on return from abroad require one or more sponsors. For the reasons given at my paras 59-61 below, I do not accept that the information in the UNHCR COI, which concerns IDPs internally displaced to Baghdad and have arrived in Baghdad from contested areas, can be read across to failed asylum seekers who originated from contested areas and are arriving in Baghdad from abroad. In any event, even if it is necessary for the appellant to have a sponsor and even if his uncle is not in Baghdad, this does not mean that he will not be able to enlist his uncle's help to find a sponsor to access accommodation in Baghdad. Given that his uncle gave him guidance and support for the purposes of his journey to the United Kingdom in addition to providing a large sum of money and taking into account my finding that he is able to contact his uncle, I find that it is reasonably likely that he will be able to enlist his uncle's help to find a sponsor to access accommodation in Baghdad.
54. The Tribunal said in AA that there was some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.
55. In relation to para 15(f) of the head-note in AA – i.e. whether the appellant is from a minority community – the appellant is a Kurd by ethnic origin and a Sunni by religion. Kurds are in the minority in Baghdad. His situation is compounded by the fact that Sunnis are also in the minority in Baghdad. He is therefore from a minority community both in terms of his ethnicity and his religion. However, Ms McCarthy did not suggest that it would be unsafe and/or unreasonable for the appellant to relocate to Baghdad simply because he is a Kurd by ethnic origin and a Sunni Muslim by religion.
56. Ms McCarthy also relied heavily on the UNHCR COI in relation to the information concerning the security situation for Sunni Arabs who are IDPs in Baghdad from contested areas. Although the country guidance given in BA concerned the risks faced by those who have collaborated, or who would be perceived as having collaborated, with foreign coalition forces, it is clear that the Tribunal in BA considered the position of Sunnis in general in Baghdad (for example, at para 96), stating, at para 98, that both parties were in agreement that the evidence before the Tribunal did not show that a person would be at real risk of serious harm solely on account of his or her religious identity if returned to Baghdad although it acknowledged that the evidence indicated that the number of sectarian attacks had increased since the withdrawal of US-led coalition forces in 2012. At para 100, the Tribunal said that the majority of Sunnis are likely to be able to lead a relatively normal life in Baghdad, although this was not without risk. The Tribunal said that the evidence of political and sectarian violence in Baghdad remained high even if it does not meet the threshold required to show a generalised risk of indiscriminate violence. At para 101, the Upper Tribunal stressed that the significance of a person’s religio-political identity to risk on return will inevitably depend on the circumstances of each case and that the increasing levels of sectarian violence in Baghdad, albeit not sufficient if taken alone, are likely to be an important consideration in assessing whether a person can demonstrate individual characteristics that would place him or her at real risk of serious harm.
57. Ms McCarthy accepted that the UNHCR does not state, pursuant to the information in the UNHCR COI, that Sunnis are at real risk in Baghdad simply by virtue of their religion. She did not suggest that the information in the UNHCR COI shows, per se, that it would be unreasonable for any Sunni Arab to relocate to Baghdad. Mr Jarvis drew attention to the fact that the UNHCR’s position, as stated at page 2 of the UNHCR COI, is derived from its position paper entitled “UNHCR Position on returns to Iraq” dated 27 October 2014 and that this position paper was before the Tribunal in AA.
58. I have carefully considered the UNHCR COI. In my judgment, the evidence of sectarian violence against Sunnis in Baghdad within this report and the information it gives about the general situation in Baghdad, all of which I do take into account, is not materially different to the evidence that was considered by the Tribunal in AA or in BA and does not justify departing from the general guidance in AA that a person's minority religion is not sufficient, in itself, either to give rise to a real risk of that individual being subjected to serious harm in Baghdad or to render it unreasonable for the individual to relocate to Baghdad, although it is a factor to be considered in deciding the reasonableness of relocation.
59. Ms McCarthy also relied heavily upon the evidence in the UNHCR COI as to the general living circumstances of IDPs in Baghdad. However, the Tribunal in AA differentiated between failed asylum seekers and IDPs; for example, at para 15(g) of the head-note. In this regard, the first paragraph of section 2 b) of the UNHCR COI (page 11) reads:

“Since 2014, access to Baghdad has proven difficult for internally displaced persons (IDPs), depending on their profile and area of origin, and authorities have implemented shifting policies regarding entry to the governorate. The main entry point for IDPs from Al-Anbar, the checkpoint on Bzeibiz Bridge, located 80 kilometers southeast of Ramadi on the border between Al-Anbar and Baghdad governorates, has reportedly been fully or partially shut over various periods. IDPs without valid civil documentation often face difficulties to pass checkpoints. Between April and December 2015, IDPs displaced from areas under ISIS control required a sponsor to enter Baghdad, with the exception of those with medical conditions. Due to access restrictions, IDPs fleeing from within Al-Anbar governorate have reportedly become stranded for days at the Al-Anbar side of the Bzeibiz bridge in difficult conditions, and/or have been forced to relocate to relatively safer areas within Al-Anbar governorate, or to return to a conflict zone. Furthermore, alternative routes into Baghdad, e.g. through Kerbala, Babel or Wassit governorates have also largely been blocked for IDPs. Since early December 2015, the sponsorship requirement has intermittently been halted and reinstated, depending on security conditions; however, since the end of February 2016, the sponsorship requirement has been entirely put on hold, meaning that, with the exception of medical cases, Baghdad is no longer accessible for IDPs from conflict areas, even if they have sponsors”
60. It is plain that the reference to IDPs in the UNHCR report is a reference to those who arrived in Baghdad from the contested areas. This is also evident from the first paragraph of section 5 (on page 29) which reads:

“The vast majority of IDPs in Baghdad are in need of humanitarian assistance. Returnees from abroad are not as such entitled to any particular assistance from government bodies or humanitarian actors; however, they could be assisted by humanitarian actors on a case-by-case basis as IDPs, if they meet established vulnerability criteria.”
61. I do not accept that the evidence relating to IDPs can be, or should be, read across and applied to the appellant as a failed asylum seeker, whether in relation to his security or his living conditions in Baghdad. In any event, I have found that, even if the appellant's uncle is still in Kirkuk, it is reasonably likely that the appellant will have means of support from his uncle in Baghdad once he exhausts any funds provided to him by the respondent to assist his return and that he will be able to enlist his uncle's help to find a sponsor to access accommodation in Baghdad. I therefore do not find that the appellant would be an IDP in Baghdad.
62. I now give separate consideration to the relevant specific questions in relation to the appellant's asylum claim, humanitarian protection claim and Article 3 claim. I reach the following conclusions, for the reasons given above:
i. In relation to the appellant's asylum claim and even if there is an applicable Geneva Convention reason (as to which no issue was raised before me), I find that there is no real risk of the appellant being unsafe in Baghdad if he were to relocate to that city. I also find that would not be unreasonable for him to relocate to Baghdad.
ii. In relation to his humanitarian protection claim, I find that there are no substance grounds for believing that he will face a real risk of suffering serious harm in Baghdad. I also find that it would be reasonable for him to relocate to Baghdad.
iii. I find that there is no real risk of the appellant being exposed to treatment in breach of his rights under Article 3 if he were to relocate to Baghdad.
63. As stated above, the panel's decision on the appellant's Article 8 claim stands.
64. Accordingly, I dismiss the appellant's appeal on asylum grounds, humanitarian protection grounds and human rights grounds.

65. Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law such that it fell to be set aside. The decision of the First-tier Tribunal on the appellant's appeal on asylum grounds, humanitarian protection grounds and (insofar as it concerned the appellant's Article 3 claim) the human rights grounds is set aside. The decision of the First-tier Tribunal on the appellant's Article 8 claim stands.

I have proceeded to remake the decision on the appellant's appeal. His appeal against the respondent's decision is dismissed on asylum grounds, humanitarian protection grounds and human rights grounds.

Signed Date: 21 April 2017
Upper Tribunal Judge Gill

APPENDIX – ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber)
Appeal number: AA/11006/2015

the immigration Acts

Heard at:
Field House

Decision promulgated
On
17 August 2016

Before

Upper Tribunal Judge Gill

Between

Sirwan Abdullah Hama
(ANONYMITY ORDER NOT MADE)
Appellant

And

Secretary of State for the Home Department

Respondent

Representation:

For the appellant: Ms K McCarthy, of Counsel, instructed by Pickup Scott Solicitors.
For the respondent: Mr T Wilding, Senior Presenting Officer.

Decision and Directions
1. The appellant is a national of Iraq of Kurdish ethnic origin from Basheer in Kirkuk who arrived in the United Kingdom in December 2014 and claimed asylum on 16 February 2015. He has been granted permission to appeal to the Upper Tribunal against a decision of the First-tier Tribunal (Judges O’Hagan and Parkes) (hereafter the “panel”) to dismiss his appeal on asylum, humanitarian protection and human rights grounds against a decision of the respondent of 23 July 2015 or refuse his asylum, humanitarian protection and human rights claims.
2. The grant of permission to appeal to the Upper Tribunal was limited to the panel's assessment of the future risk. Judge of the First-tier Tribunal Froom, in granting permission, considered it arguable that the panel may have erred by misapplying the country guidance given in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). It is helpful to set out the relevant paragraph of Judge Froom’s decision:
“… On the facts as found, the appellant is a Kurd from Kirkuk whose home village was overrun by ISIS and who has no documents. He was a minor when he left Iraq and his parents were killed. The appellant's home area is in a contested region in which there is an internal armed conflict. The panel concluded, somewhat briefly, that the appellant could be returned to the territory of the IKR [Iraqi Kurdish Region], subject to being pre-cleared by the IKR authorities. Arguably it was incumbent on the panel to make findings on whether the appellant, who does not originate from the IKR, can be returned there. If not, the panel ought to have considered return to Baghdad and the possibility of internal relocation there or expecting the appellant to travel to the IKR from Baghdad. Permission to appeal is granted on this ground only.”
3. Permission was refused to challenge the panel's assessment of credibility as well as on the ground that the panel erred in not departing from the country guidance given in AA.
Basis of appellant's claim
4. The basis of the appellant's asylum claim may be summarised as follows: He is an Iraqi national of Kurdish ethnicity from Basheer in Kirkuk where he lived with his parents and his siblings (two sisters and one brother) until June 2014 when he went to visit his paternal uncle who lived in Pishdar Hama in a different part of Kirkuk. When he tried to leave, his uncle told him not to return. Three days later, he was told by his uncle that ISIS had taken over his home village and his parents killed by ISIS.
5. The appellant stayed on with his uncle but then experienced problems. His uncle mistreated him. He gave the appellant little food; he accused him of sleeping with his daughter; and he burned him on the arm with a hot knife. There were several other incidents of violence. They also argued when the appellant asked for the return of money that his uncle owed his father. His uncle did give him the money. The appellant left his uncle's home and made his way out of Iraq, crossing into Turkey with the help of an agent, eventually arriving in France and then travelling to the United Kingdom hidden in a lorry.
The panel's findings
6. The appellant's age was in dispute before the panel. The panel considered the appellant's evidence about his age. It took into account the fact that it found the appellant generally an unreliable witness. It therefore preferred to rely upon the age assessment carried out by social services. On that basis, it is plain that the panel found that the appellant was born on 1 January 1998.
7. The panel said that the “first strand” of the appellant's case, that his parents were killed when ISIS overran his home village in Iraq, was not in dispute between the parties. The panel found that the appellant had fabricated what it described as the “second strand”, i.e. the appellant's account of his problems with his uncle, summarised at my paragraph 5 above. It gave its reasons for rejecting this aspect of the appellant's case at paras 49-52. Since permission has been refused to challenge the panel's assessment of credibility and its findings of fact on his account of the basis of his asylum claim, these findings stand.
8. The panel then turned to assess whether the appellant was at risk because he is an Iraqi Kurd whose parents were killed when ISIS attacked and overran his home village. At paragraph 54, it referred to the country guidance case of AA. The panel's assessment of the risk in the instant case is set out at para 55 which reads:

“Although Mr Scott presented us with additional material, he confirmed that he was not seeking to advance an argument that we should depart from AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC), and we are bound by it. Based on the guidance in that case, we are satisfied that the Appellant could safely be returned to the territory of the IKR, subject to that being pre-cleared with the IKR authorities. In respect of the risk of being forcibly recruited by ISIS, such risk could only arise in territory controlled by the group, and would not be a risk in territory under the control of the IKR. In respect of the Appellant's argument that he would not be returned to the territory under the control of the IKR for reasons of voter registration, this is not consistent with the position set out in AA (Article 15(c)) Iraq CG [2015].”
Assessment
9. The appellant does not come from the IKR. Pursuant to para 5 of the head-note in AA, he would not be returned to IKR but to Baghdad. In AA, the Upper Tribunal gave guidance concerning the assessment of whether it would be unsafe and unreasonable to relocate. Pursuant to the guidance in AA, it was necessary for the panel to consider whether the appellant, as an individual who comes from the contested area of Kirkuk as opposed to the IKR and who would therefore be returned to Baghdad, could relocate safely and without undue hardship to Baghdad or alternatively to the IKR. The Upper Tribunal explained, at para 15 of the head-note, the factors that fall for consideration in deciding whether it would be unduly harsh for an individual to relocate to Baghdad. This includes consideration of whether the individual concerned has a Civil Status Identity Document (CSID) or would be able to obtain one.
10. It is clear that the panel simply failed to consider these issues and incorrectly decided the appeal on the basis that the appellant can be returned to the IKR directly subject to this being cleared with the IKR authorities, contrary to AA which makes it clear that only Iraqi nationals who were formerly resident in the IKR will be returned to the IKR and that all other Iraqis will be returned to Baghdad.
11. Mr Wilding said that it was difficult to say that the panel’s consideration of the future risk was adequate in the light of the guidance in AA.
12. I am satisfied, for the reasons give at paras 9-10 above, that the panel materially erred in law in its assessment of the future risk, in that: (i) it applied the guidance incorrectly, as explained at para 10 above; and (ii) this led it to omit considering the issues set out at para 9 above. I am satisfied that these errors are material.
13. I therefore set aside the decision of the panel to dismiss the appeal of the appellant on asylum, humanitarian protection and human rights grounds. I give the following directions:
i) The panel's assessment of credibility and its findings of fact on the appellant's evidence of the basis of his asylum claim stand.
ii) The panel’s record of the evidence before it stands.
iii) The panel's decision on the appellant's Article 8 claim stands.
iv) The re-making of the decision on the appellant's appeal will be limited to the asylum claim, humanitarian protection claim and Article 3 claim.
14. Ms McCarthy was unable to proceed notwithstanding the directions that had been given stating that there is a presumption that the Upper Tribunal will proceed to re-make the decision at the same hearing if the decision of the FtT is set aside. There was no evidence before the panel about the whereabouts of the appellant's uncle. Mr Wilding and Ms McCarthy agreed that, on the findings of the panel, there were gaps in the evidence and that the issue of the viability of internal relocation required detailed assessment in the light of the panel's findings.
15. Mr Wilding was unable to inform me of the respondent’s position in the instant case in relation to paras 4-5 of the guidance in the head note of AA. The respondent now has the benefit of the panel's findings of fact on the appellant's evidence. I have therefore decided to direct her to notify the Upper Tribunal in writing of her position in relation to paras 4-5 of the guidance in the head note of AA before the resumed hearing takes place.
16. In that regard, the appellant is to take notice that the period allowed for direction 1 is intended to ensure that the respondent has the benefit of his witness statement and skeleton argument before she notifies the Upper Tribunal of her position in relation to paras 4-5 of the head- note in AA. He is also to take notice of the fact that the timescale permitted for compliance with direction 3 is intended to give the respondent sufficient opportunity to consider the expert report.
Notice of Decision

The decision of the First-tier Tribunal involved the making of errors on points of law such that the decision to dismiss the appeal on asylum grounds, humanitarian protection and human rights (Article 3) is set aside. The decision in relation to Article 8 stands. This case to be listed for a resumed hearing before Upper Tribunal Judge Gill in the Upper Tribunal.
DIRECTIONS:
1. The appellant to file and serve any witness statement(s) and skeleton argument concerning the internal relocation issue no later than three weeks from the date on which this decision and directions are sent to the parties.
2. No later than six weeks from the date on which the respondent receives the appellant’s witness statement(s) and skeleton argument, the respondent to notify the Upper Tribunal in writing of her position in relation to paras 4-5 of the guidance in the head note of AA in the instant case. If she is unable to do so within the 6-week period, she must make an application for time to be extended, giving a brief explanation of what steps are required to be taken by her to consider her position in relation to paras 4-5 of AA and how long such steps will take.
3. Any expert report to be relied upon by the appellant to be filed and served at least 15 clear working days before the resumed hearing.

Signed Date: 20 August 2016
Upper Tribunal Judge Gill