Tribunal decisions

The decision

IAC-AH-dh-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11145/2015

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 7th December 2016
On 19th January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr ali tahsen hassan
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr I Hussain, Solicitor
For the Respondent: Mr C Bates, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iraq born on 12th May 1990. The Appellant claims to have left Iraq on 4th February 2015 travelling via Turkey arrived in the UK on 14th February 2015 when he claimed asylum. On 15th February 2015 the Appellant was convicted at West London Magistrates' Court after pleading guilty to having entered the UK without a valid travel document and was sentenced to three months' imprisonment.
2. The Appellant's claim for asylum is based upon a fear that if returned to Iraq he would face mistreatment due to his political opinion because he fears the mujahedeens who have targeted him and threatened to kill him because his father used to work for the Americans. The Appellant's claim for asylum was dismissed by Notice of Refusal dated 29th July 2015.
3. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Birrell sitting at Manchester on 1st August 2016. In a decision and reasons promulgated on 11th August 2016 the Appellant's appeal was dismissed on all grounds.
4. On 23rd August 2016 Grounds of Appeal were lodged to the Upper Tribunal. On 5th September 2016 First-tier Tribunal Judge Grant granted permission to appeal. Judge Grant noted that the First-tier Tribunal Judge accepted much of the Appellant's evidence of what had happened to his mother and father as a result of his father's work for the international coalition in Iraq and the reasons that the Appellant fled Iraq and finds that the Appellant would be at risk on return to Baghdad. Judge Grant noted that the First-tier Tribunal Judge found the Appellant did not come within the risk factors set out in AA because he had previously lived in Iskandarya for five years and has relatives there and can relocate there. It is the Appellant's case he has no family in Iskandarya and the grounds submit that the judge erred in fact which amounts to an error of law.
5. On 19th September 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24 noting that the judge had given adequate reasons for finding that the Appellant could relocate to Iskandarya. The findings are set out at paragraphs 63 and 67 and the judge considers the issue of the Appellant's claim in relation to religion at paragraph 64. The judge had found that the Appellant did not have any significant problems regarding religion.
6. It is on that basis that the appeal comes before me to determine whether or not there are any material errors of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor Mr Hussain. The Respondent appears by her Home Office Presenting Officer Mr Bates.
Submission/Discussion
7. Both legal representatives acknowledged that the question outstanding is whether or not the Appellant is capable of return to Iskandarya which is some 35 miles from Baghdad. Mr Hussain relies on the Grounds of Appeal but submits that the claim in fact goes further than the simple relocation point contending that the judge erred with regard to the claim on the basis that the Appellant is no longer a Muslim and his case is that the Appellant had become an atheist. He submits that at paragraphs 63 to 77 of the judge's decision she has failed to give due and proper consideration to the issue of religion. He submits that apostates are killed and are at risk in Iran and that non-Muslim minorities (which he submits includes the Appellant) are obliged to follow Islamic beliefs. He submits that the judge has failed to look properly at the Appellant's atheism and that it is implicitly accepted at paragraph 64 that the Appellant has given up his Islamic faith and that there is no finding that the Appellant was not credible in such circumstances. He thereafter submits that the judge has not engaged with the country evidence.
8. He takes me to the Appellant's bundle that was before the First-tier Tribunal Judge and submits that Judge Birrell has not properly taken into account comments found therein with regard to persecution of atheists and secondly that the Appellant has no close family to return to in Iskandarya and that he has no contact with extended family members.
9. Mr Bates starts by considering the family members that the Appellant has indicated he has in Iskandarya pointing out that he answered this at question 17 of the initial interview and that at the time of his interview he made no such claim that he could not return there. In any event he submits that this is not material, the Appellant led an independent life as a lorry driver travelling around and to what extent the Appellant had need of other family members was not an issue that was considered nor needed to be and that the findings made by the judge were open to her.
10. As to the Appellant's atheism he submits that this is different from being an agnostic or a lapsed Muslim. He points out that the Appellant's evidence was that he was no longer a practising Muslim. Consequently the Appellant may merely be someone who has rejected the practice of Islam. He submits that this has been thoroughly dealt with at paragraphs 64 and 65 of the judge's decision. Further he points out that the judge had noted that the Appellant at paragraph 65 states that he had had no significant problems and that he merely states that he is an atheist. No evidence was available before the Tribunal that he had renounced Islam and no suggestion has been made that he disparages the religion.
11. Returning to the issue of family he points out the Appellant does have family in Iskandarya, he could contact them if he wanted to but the Appellant has lived an independent life and the fact that he has not attended a mosque for a long time has never previously caused any problems. He submits that the judge has given cogent reasons and that there is no error of law and asked me to dismiss the appeal.
12. In brief response Mr Hussain points out that it is acknowledged the Appellant has given up on Islam and therefore he would be at risk. He points out it has been accepted that the Appellant would be at risk in Baghdad so why would he not be at risk in Iskandarya and that the risk remains. It is his contention that there are material errors of law, that I should set aside the decision and remake the decision allowing the appeal.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
15. There are two issues raised in this matter by the Appellant's legal representatives contending that there are material errors of law. The first relates to the ability of the Appellant to relocate to Iskandarya and the second as to whether he would be at risk on the basis that he is an atheist. I remind myself that the judge heard full evidence in this matter. She has addressed the issues upon which concerns are expressed. At paragraph 62 she has given reasons as to why the Appellant would be at risk in Baghdad. Thereinafter at paragraph 63 she has given cogent reasons as to why the Appellant could return to Iskandarya pointing out that he had no problems there before he fled from Iraq; that Iskandarya is not a contested zone and that he has both Iraqi ID and his nationality certificate. The judge pointed out that the Appellant is fit and healthy, well-educated and has previously worked in Iraq and that he has relatives in Iskandarya who might be able to provide him with support.
16. Further as Mr Bates has pointed out the Appellant lived an independent life and was a lorry driver. The issue as to the extent to which he would need relatives for support is one that received scant consideration by any party before the First-tier Tribunal. I find that the judge has considered the issue and given cogent reasons as to why the Appellant would not be at risk on return to Iskandarya. That ground discloses no material error of law.
17. The second ground relates to the risk contended by the Appellant and his legal representatives that the Appellant would be exposed to on the basis that he is an atheist. This has been thoroughly addressed by the judge at paragraphs 64 to 66 in her decision. She has noted that there is no evidence to say that the Appellant has renounced Islam nor turned to another religion. All the Appellant's evidence is, is that he is no longer a practising Muslim. These factors have been fully addressed and considered by the judge particularly at paragraphs 64 and 65. Further the judge has gone on to consider the objective evidence at paragraph 66.
18. At paragraph 67 the judge has made findings having considered all the material in the round and noting that the Appellant may be at risk in Baghdad but that he could reasonably relocate to Iskandarya where he had lived for five years without any serious problems in a non-contested area. Further Judge Birrell has gone on to consider the position relating to the Appellant's loss of faith and concluded on a reasoned analysis that the Appellant had not demonstrated that he came within any of the risk factors set out in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).
19. Overall this is a very thorough decision from an experienced judge who has set out a full and well-reasoned decision. The submissions in essence of Mr Hussain amount to little more than disagreement with the findings of the judge. The decision overall discloses no material error of law and the Appellant's appeal is consequently dismissed and the decision of the First-tier Tribunal Judge maintained.
Notice of Decision

The decision of the First-tier Tribunal contains no material error of law and the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris