Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/11407/2014

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 11 August 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

k n s
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Cole, Parker Rhodes Hickmotts, Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. I have written this decision following a resumed hearing at Bradford having found (in a decision promulgated on 15 June 2016) that the First-tier Tribunal had erred in law such that its decision fell to be set aside. My reasons for making that decision were as follows:
1. The appellant was born on 25 December 1980 and is a male citizen of Iraq. He appealed to the First-tier Tribunal (Judge Birkby) against a decision of the Secretary of State to refuse him asylum and to make directions for his removal to Iraq. The First-tier Tribunal, in a decision and reasons promulgated on 25 March 2015, dismissed the appeal. The appellant now appeals, with permission to the Upper Tribunal.
2. Both parties agree that this appeal turns on the question of internal flight. Having said that, Judge Birkby did not find the appellant to be a credible witness and I can see no reason to interfere with his findings as to credibility. For reasons which will be explained later, this does have an impact upon the assessment of the Tribunal's treatment of the internal flight alternative. He is from a disputed area of Iraq to which it is safe for him to return. The respondent proposes that he is returned to Baghdad. At [39], the judge wrote:
However the respondent asserted it would be reasonable for the appellant to relocate to Baghdad and it would not be unduly harsh for him to do so. I find that it is clear from the background documentation that there was a significant degree of violence in Baghdad. There was a significant Kurdish population in Baghdad although the majority are either Shia, Arab ethnicity or Sunni Arab ethnicity. There is significant evidence that the Shia militias target Sunnis. There is some evidence that Kurdish people in Baghdad who are generally Sunnis as is the appellant have been targeted although it is clear from the documentation that Kurdish Peshmergers and other Kurdish groups are fighting against ISIS in the same way that Iraqi Shias are fighting against ISIS. Clearly if the appellant were to return to Baghdad he would have difficulty settling down. He has on the face of the evidence no relatives in Baghdad. He has not lived in Baghdad. Nevertheless he is an Iraqi citizen and despite the difficulties would be able to obtain Iraqi documentation on returning to Baghdad. Such documentation could well be obtainable from the Iraqi Embassy in the United Kingdom before he were to return. The Appellant himself is a young man he is 23 years of age who had the wherewithal to come to the United Kingdom when he did travelling all the way across Europe. He has a partial secondary education in Iraq. He is of Kurdish ethnicity and there are a significant number of Kurdish people living in Baghdad. Despite the difficulties I find that it would be reasonable for the appellant to return to Baghdad and it would not be unduly harsh for him to do so. Pursuant to Article 15(c) of the Qualification Directive I am not satisfied that the level of violence is so indiscriminate in Baghdad so as to make a person returning to Baghdad without any profile save that he is from Nineveh which is now under the control of ISIS that the appellant would be at real risk of any form of serious harm or ill-treatment. He would be able to re-establish his life in Baghdad which is part of the country of his heritage. He has no relatives in the United Kingdom. I am not satisfied that he has proved that he has no relatives in Iraq.
3. This appeal has taken a very long time to reach the Upper Tribunal (more than a year). In the interim, the Upper Tribunal was given country guidance regarding returns to Iraq (AA). The question of the re-documenting of returnees to Iraq is addressed at length in the case of AA. Obviously, the judge cannot be criticised for failing to anticipate the findings of the Tribunal in AA though it does appear that some of the evidence before him at the First-tier Tribunal was the same or very similar to that before the Upper Tribunal. Having said that, I am not satisfied that the judge has addressed adequately the question of documentation for this particular appellant on return to Iraq. The central part of the paragraph which I have quoted in full above [39] contains little reference to the evidence which was actually put before the judge. It alludes, somewhat cryptically, to "difficulties" which the appellant might encounter obtaining documentation upon returning to Baghdad. It would have been helpful if the judge had given details of those difficulties or to have explained how the appellant might expect to be able to overcome them. Likewise, the judge make the rather unhelpful finding that the documentation "could well be obtainable" by the appellant from the Iraqi Embassy in the United Kingdom. Again, there is an absence of detail in the analysis.
4. In the circumstances, I set aside the decision and shall re-make it in the Upper Tribunal following a resumed hearing. All the findings of fact made by Judge Birkby shall stand including all his findings as regards credibility. As Judge Birkby noted at the end of [39] the appellant had failed to prove that he has no relatives living in Iraq; the assessment of internal flight by the Upper Tribunal shall be on the basis that the appellant has relatives or friends in Iraq who may be able to assist him; to put it another way, he will not be returning to a country where he has no personal contacts whatever or has nobody to whom he may look for assistance. The Upper Tribunal will examine the question of internal flight in the light of the latest country guidance of AA.
Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 25 March 2015 is set aside. All of the findings of fact shall stand. The Upper Tribunal will re-make the decision at a resumed hearing but shall consider only the issue of internal flight (to Baghdad) within Iraq.

2. At the resumed hearing, both parties agreed that the only issue before the Upper Tribunal was that of the internal flight alternative (IFA) for this appellant in Baghdad. Since Judge Birkby gave his decision in the First-tier Tribunal, the Upper Tribunal has delivered its country guidance in respect of Iraq in AA (Article 15(C)) Iraq CG [2015] UKUT 544 (IAC). The relevant parts of the head note of AA are B, C and D:
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.
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.
3. To summarise, the circumstances of the appellant are that he has never lived in Baghdad. He is a Sunni Muslim. He has no Iraqi identity documents and would have to return to Iraq on an emergency travel document only. His home area of Iraq is Nineveh where it is unsafe for him to return. As will be noted from my decision on error of law [4] the resumed hearing proceeded on the basis that the appellant has relatives and friends in Iraq who may be able to assist him. However, there was no evidence to show that those relatives are living anywhere other than in Nineveh and there is no evidence to show that the appellant has friends or relatives living in Baghdad who may be able to assist him. The appellant is a single male who is now aged 25 years and who appears to be in good health.
4. Mr Cole, for the appellant, submitted that it was not feasible for the appellant to obtain a CSID prior to returning to Iraq. If he returned on an emergency travel document or laissez passer there was no evidence that he would be able to obtain a CSID in Baghdad. He has no friends or relatives in Baghdad who would be able to assist him or accommodate him. It would be unsafe for him to travel to Nineveh in order to obtain a CSID (see [13] of the head note of AA). There was no evidence that friends or relatives living in Nineveh could travel to the office on his behalf and obtain from there CSID or other identity document which would be of use for the appellant in Baghdad. As AA noted, there was no evidence that the National Status Court in Baghdad would be able to assist the appellant as "the precise operation of the court ... is unclear." Mr Cole submitted that the appellant would, in consequence of these circumstances, face destitution in Baghdad. He would be unable to support himself and, as a failed asylum seeker, may not necessarily be recognised or assisted as an internally displaced person (IDE). It is likely the circumstances would lead to a breach of Article 3 ECHR but, even if that were not the case, the individual circumstances would be such that it would be unduly harsh for him to relocate to Baghdad (Januzi [2006] UKHL 5).
5. For the respondent, Mr Diwnycz submitted it would not be unreasonable to expect the appellant to contact his family in Nineveh (there was evidence that there was a "duplicate government office" at Najaf which may be able to assist the appellant) and that, within reasonable time certainly before the appellant fell into destitution, CSID could be obtained for him to enable him to continue living in Baghdad.
6. Mr Cole submitted it would not be safe to expect any member of the appellant's family to travel to Najaf, through its contested area. He submitted that the appellant fell into the category of returnee for whom return would not be feasible. He referred me to paragraph [203] of AA:
On the evidence before us, whilst we accept that for a person who has no family or other support in Baghdad and who also does not have a CSID, and cannot obtain one reasonably soon after arrival, it would be unreasonable and unduly harsh to relocate to Baghdad, for the generality of Iraqis, despite difficulties that may be experienced in respect of such matters such as access to health care, education and jobs, we consider that relocation to Baghdad is safe and not unreasonable or unduly harsh - one reason being that a person can only be returned to Baghdad if such person has a current or expired Iraqi passport or a laissez-passer.
7. This paragraph appears to illustrate the somewhat circular nature of the argument; it is likely that a person who actually returns from the United Kingdom to Baghdad can reasonably relocate to that city because he or she will be able to obtain a CSID and he or she will be able to obtain such a document because they will only have been returned to Baghdad in the first instance because they had an Iraqi passport. Further, the Tribunal in AA went on to consider AA's particular circumstances at [207]:
Given that the appellant's return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraphs 169 and 170 above, 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 the lack of documentation and that an applicant should not be precluded for pursuing a claim to international protection in circumstances where 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.
8. A distinction is made here by the Tribunal between problems arising from a lack of documentation for those living in Iraq and problems which a lack of such documents may pose to entering Iraq in the first instance. In the latter case, return is "unfeasible" and, following the decision of the Court of Appeal in HF (Iraq) [2013] EWCA Civ 1276, an appellant cannot succeed in a claim for international protection where the "asserted risk of harm is ... based on factors (such as lack of documentation) that currently render a person's actual return unfeasible."
9. I am aware the Court of Appeal has granted permission on AA in order to consider this very issue. I have, of course, written this decision unaware of the eventual outcome of that appeal but, on the basis of the appellant's current circumstances, I have concluded that it would be unduly harsh to expect him to relocate to Baghdad. I am aware that the appellant has relatives living in Iraq but, given that they are living in Nineveh, I am unable to conclude that they are likely to be able to assist the appellant even assuming he was able to establish contact with them. I do not consider it reasonable to expect such relatives to put their own lives at risk travelling to a government office where, in the light of the appellant's lack of documentation, they are not likely to be successful in obtaining by proxy a CSID or other relevant document which might assist the appellant in Baghdad. Notwithstanding the appellant's youth and good health, I accept Mr Cole's submission that his lack of local contacts in Baghdad together with his inability to access government services through the agency or a CSID or to be accommodated by friends and relatives whilst having no prospect even in the medium term of obtaining any of those comforts, would expose him to conditions rendering internal flight unduly harsh in his particular case. For that reason, I allow the appeal. The appellant is at real risk of serious harm in his home area of Iraq whilst it is unduly harsh to expect him to relocate to Baghdad. The appellant is entitled to a grant of humanitarian protection.

Notice of Decision

The appeal is allowed on the grounds that the appellant is entitled to a grant of humanitarian protection.

No anonymity direction is made.

Signed Date 1 October 2016

Upper Tribunal Judge Clive Lane

No fee is paid or payable and therefore there can be no fee award.

Signed Date 1 October 2016

Upper Tribunal Judge Clive Lane