Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/12849/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On 2nd November 2016
On 22nd December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr SHEIRA MOHAMMED
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Sharif, Solicitor
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iraq born on 1st January 1996. The Appellant left Iraq during 2014, travelled through France and other unknown countries before arriving in the UK on 1st January 2015. The Appellant's claim for asylum was based on a well-founded fear of persecution in Iraq on the basis of his fearing ISIS and the country situation in Iraq. His application was refused by the Secretary of State by Notice of Refusal dated 9th October 2015.
2. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal Gribble sitting at Birmingham on 3rd June 2016. In a decision and reasons dated 29th June 2016 the Appellant's appeal was dismissed on all grounds.
3. On 13th July 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended that there was a material misdirection in law due to the failure of the judge to apply the country guidance authority of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and that the judge had failed to consider paragraph 276ADE of the Immigration Rules.
4. On 25th July 2016 Judge of the First-tier Tribunal Froom granted permission to appeal. In very short grounds in granting permission, Judge Froom granted permission on the basis that there was a potential failure to apply the country guidance authority of AA but refused permission on the argument of failure to consider paragraph 276ADE of the Immigration Rules. The judge found it was arguable that the First-tier Tribunal Judge did not apply the detail of the country guidance in deciding the Appellant had a viable internal flight alternative to the Independent Kurdistan Region and that there was, for example, no consideration of the safety of return there from Baghdad.
5. On 3rd August 2016 the Secretary of State responded to the Grounds of Appeal under Rule 24. Those grounds noted that in his consideration the First-tier Tribunal Judge had made findings on the background information and the Appellant's own evidence between paragraphs 24 and 29 and had given reasons for finding that the Appellant does not have a well-founded fear of persecution. Further, at paragraph 28, the First-tier Tribunal Judge gave specific reasons for finding the Appellant would be able to gain entry to the IKR.
6. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed solicitor, Mr Sharif. The Respondent appears by her Home Office Presenting Officer, Mr McVeety. I noted that the Appellant personally had failed to attend. The Appellant lived locally to the Tribunal. I enquired of Mr Sharif as to why the Appellant was not in attendance. Mr Sharif indicated that he had expected him and had contacted the Appellant but that the Appellant advised him that he had other things to do.
Submissions/Discussions
7. Mr Sharif relies on the Grounds of Appeal. He points out that when the determination is looked at it is brief and that there are limited findings of fact. He submits that the judge failed to apply the country guidance authority of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and the factual matrix when assessing the persecutory risk the Appellant would face on return. He points out the judge notes and accepts that the Appellant is Kurdish from Jalawla, that he fled that area when ISIS took over the town, and that the Appellant spent some time in a refugee camp run by the Kurdish authorities and lost contact with his family. He submits that Jalawla is found within the Diyala governorate and, as such, is part of the contested area of Iraq and that the judge had failed to make an assessment whether the Appellant was at risk of persecution in his home area and to make findings regarding this. Further, he submits that removal would be to Baghdad and that the judge failed to consider the risk that the Appellant would be exposed to on such removal and the difficulty of travelling back to the Kurdish Region from Baghdad.
8. In response Mr McVeety takes me to the decision. He acknowledges that the decision is relatively brief but that does not mean it discloses any material errors of law. He points out that the judge has made extensive reference to the lead authority of AA and at paragraph 26 has noted the current country guidance relating to people from the contested area of Iraq. Consequently he points out the judge starts on the correct basis and that whilst Grounds 1 and 2 submitted by the Appellant overlap, he emphasises that the country guidance authority is fact sensitive and that the judge has looked in detail at paragraph 27 as to whether the Appellant could relocate to the IKR and then given reasons at paragraph 28 as to why he would be able to gain entry to the IKR. Mr McVeety even reminds me that at paragraph 21 the judge had specifically invited the Appellant's representative to make representations relating to the Appellant's ability to relocate to the IKR.
9. He further indicates that the judge noted there was no evidence put forward as to why the Appellant could not relocate. He reminds me that the burden of proof, albeit on a lower standard, is on the Appellant and that the judge decided the evidence on that that was put before him. He submits there was no evidence that the Appellant would be unable to travel to Irbil or would be unable to survive on his own in Baghdad. He contends there is no material error of law in the decision of the First-tier Tribunal Judge and asked me to dismiss the appeal.
10. In brief response Mr Sharif points out that there was a detailed skeleton argument available before the First-tier Tribunal Judge and I am referred to this and have considered it. He submits the judge was duty bound to consider all the evidence including the skeleton argument and that the judge had simply bypassed some of the Appellant's account.
The Law
11. 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.
12. 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
13. The thrust of the Grounds of Appeal and the submissions of Mr Sharif are that the judge failed to apply the country guidance authority of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) in assessing the persecutory risk the Appellant faced on return to Iraq. With the greatest of respect to the legal representatives acting for the Respondent that just is not the case. The starting point is an analysis of the judge's decision. At paragraph 21 he had specifically asked, and gleaned a response from the Appellant's representative with regard to the issue of relocation to the IKR. The judge has gone on at paragraph 22 to note the authorities and the country information guidance and has then gone on to consider them in his findings of fact. He has noted the Appellant's position and on the non-disputed facts at paragraph 27 found that relocation to the IKR would not be unduly harsh. He has made further findings of fact at paragraph 28 and concluded that there are no Article 15(c) risks in the IKR and therefore the Appellant cannot qualify for humanitarian protection on that ground further to AA.
14. It is not necessary for a decision to be lengthy providing it addresses the salient issues. This is a judge who has identified immediately the issues outstanding in this case and has addressed them. Full reasons for his findings have been set out and it is clear that he has been aware of, and applied, country guidance. In such circumstances the appeal amounts to little more than an argument of disagreement with the findings and application by the judge. For all the above reasons this is a decision that discloses no material error of law and in such circumstances the Appellant's appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.

Notice of Decision
The decision of the First-tier Tribunal Judge discloses no material error of law. The appeal is dismissed and the decision of the First-tier Tribunal Judge is maintained.
No anonymity direction is made.

Signed Date 22/12/2016

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