AA/12069/2015

• Status of case: Unreported
• Hearing date: 26 Jan 2017
• Promulgation date: 2 Feb 2017
• Publication date: 13 Sep 2021
• Last updated on: 13 Sep 2021

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12069/2015


THE IMMIGRATION ACTS


Heard at Birmingham
Decision & Reasons Promulgated
On 26 January 2017
On 2 February 2017


Before

Deputy Upper Tribunal Judge Pickup


Between

Salar Azeez Mohammed
[No anonymity direction made]
Appellant
and

Secretary of State for the Home Department
Respondent


Representation:
For the appellant: Mrs O Duru, instructed by Jemek Solicitors
For the respondent: Mr D Mills, Senior Home Office Presenting Officer


DECISION AND REASONS
1. The appellant, Salar Azeez Mohammed, date of birth 1.1.74, is a citizen of Iraq.
2. This is his appeal against the decision of First-tier Tribunal Judge James promulgated 31.3.16, dismissing his appeal against the decision of the Secretary of State, dated 26.8.15, to refuse his protection claim.
3. The Judge heard the appeal on 10.3.16.
4. The grounds of application for permission to appeal assert that the judge of the First-tier Tribunal (1) failed to give adequate reasons for his findings; (2) reached flawed credibility findings; (3) failed to properly consider the evidence; and (4) failed to consider and apply relevant Country Guidance case law in finding at [34] of the decision that for article 15(c) reasons the appellant could not return to Makhmour, but that he "would be able to relocate to Erbil or Kabul to avoid risks that he would face in Makhmour." The grounds, and in particular ground 4, are somewhat incoherently drafted. Ground four makes no reference to the relevant Country Guidance decision in AA (Article 15(c)) Iraq CG [2016] UKUT 000544 (IAC), which was promulgated in October 2015.
5. I note that whilst the judge must have been confused in referring to Kabul, which is in Afghanistan, rather than Baghdad, Iraq, as drafted ground four also makes a geographical error referring to return to Iran rather than Iraq.
6. First-tier Tribunal Judge Pedro granted permission to appeal on ground four only, noting that in applying findings to the background position in Iraq, the judge has omitted to make any reference to the current Country Guidance and persistently referred to relocation to Kabul rather than Baghdad.
7. Thus the matter came before me on 26.1.17 as an appeal in the Upper Tribunal, with only ground 4 pursued by Mrs Duru.
Error of Law
8. In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that the decision of Judge James should be set aside.
9. Mr Mills accepts that the judge erred by referring to Kabul instead of Baghdad and failed to reference the country guidance of AA. The Rule 24 response submits that the error is not material as the judge has properly considered relocation to Erbil, as set out in the refusal decision. At [33] the judge did not accept as valid the appellant's concerns about relocation to Erbil, and did not accept that he is of interest to the KRG.
10. However, without a careful, anxious consideration of the circumstances in the IKR and the means of return, and given the absence of any consideration of the relevant case law, I cannot be satisfied that the judge has properly and adequately addressed the risk on return and the feasibility of return to either Baghdad or the IKR via Erbil. The decision as made is unsafe and in error of law so that it should be set aside to be remade afresh.
Remittal
11. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal vitiate all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
12. In all the circumstances, at the invitation and request of both parties to relist this appeal for a fresh hearing in the First-tier Tribunal, I do so on the basis that this is a case which falls squarely within the Senior President's Practice Statement at paragraph 7.2. The effect of the error has been to deprive the parties of a fair hearing and that the nature or extent of any judicial fact finding which is necessary for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2 to deal with cases fairly and justly, including with the avoidance of delay, I find that it is appropriate to remit this appeal to the First-tier Tribunal to determine the appeal afresh.
Conclusions:
13. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated

Consequential Directions
14. The appeal is remitted to the First-tier Tribunal sitting at Birmingham;
15. The appeal is to be relisted at the first available date;
16. The appeal is to be decided afresh with no findings of fact preserved;
17. The ELH is 3 hours;
18. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge James;
19. The appellant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
20. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.
Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did not make an order pursuant to rule 13(1) of the Tribunal Procedure Rules 2014.
Given the circumstances, I make no anonymity order.
Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: no fee is payable and thus there can be no fee award.

Signed

Deputy Upper Tribunal Judge Pickup

Dated