Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00983/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision Promulgated
on 20 May 2016
on 31 August 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

MOHAMMAD JADER KARIM
(Anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Schwenk instructed by Fadigia & Co Solicitors.
For the Respondent: Mr A McVeety Senior Home Office Presenting Officer.

DECISION AND REASONS

1. Following a hearing at Manchester on the 5 February 2016 it was found a First-tier judge had made an error of law material to the decision to allow the appeal and that determination was set aside. A copy of the reasons for this finding is annexed to this decision at Annex A below.
2. The immigration decision under challenge is a decision dated 1 April 2014, made pursuant to section 32(5) UK Borders Act 2007 to deport the appellant.

Background

3. The appellant is a national of Iraq born on the 13 January 1990 who arrived in the United Kingdom in October 2002 together with his father, brother, step mother and step sister. His father claimed asylum naming the appellant as his dependant. The applications were refused on 10 December 2002 and an appeal against that decision failed. The appellant's father became appeal rights exhausted on the 13 November 2003.
4. On 27 February 2008 at Leicester Crown Court the appellant was convicted of possessing a Class A controlled drug with intent to supply, heroin and crack cocaine. Between 5 and 11 August 2008 at Leicester Crown Court the appellant was convicted of possessing a firearm without a certificate and on 18 September 2008 sentenced to 6 years detention in a young offender's institution.
5. The appellant's father, step-mother and step siblings were granted ILR on 10 June 2009 although the appellant was not granted such leave in line due to his conviction.
6. On 12 October 2009 a signed deportation order was made and served providing the appellant with an out of country right of appeal. The decision was withdrawn on the 9 May 2011 after the respondent agreed to reconsider the decision.
7. On 16 June 2011 a fresh human rights claim was made and refused and on 26 September 2011 the signed deportation order was sent for service. The appellant lodged an appeal against the deportation order on the 10 October 2011 which was allowed to the extent the decision was remitted for the Home Office to consider paragraph 395C of the Immigration Rules. A further liability for deportation notice was sent for service on the 18 May 2012. The appellant completed the document indicating he relied upon asylum and human rights grounds as a result of which he was interviewed on the 30 January 2014.
8. On 1 May 2014 the respondent issued a comprehensive refusal letter which served as the decision to deport pursuant to section 32(5) UK Borders Act 2007. It is against this decision that the appellant appealed.

The law

9. Mr Schwenk submits that the applicable rules are those in force at the date of decision. Reliance is placed upon paragraph 39 of the Judgement of YM (Uganda) [2014] EWCA Civ 1292 where is was found:
39. So far as the 2014 Rules are concerned, it is clear from the provisions of Rule A362 itself, as well as the statement under "implementation" in the Statement of Changes and paragraphs 3.4 and 4.7 of the Explanatory Memorandum, that the 2014 Rules are to be applied to all decisions concerning Article 8 claims that are made after 28 July 2014. As Lord Hoffmann said in the Odelola case at [7], the Immigration Rules are a statement by the SSHD of how she will exercise powers of control over immigration. Thus, in the absence of any statement to the contrary, the most natural reading of the Rules is that they apply to decisions taken by the SSHD until such time as she promulgates new rules, after which she will decide according to the new rules. The same applies to decisions by tribunals and the courts: that is why in MF (Nigeria) v SSHD[15] (hereafter "MF(Nigeria)"), the Court of Appeal held that both the UT and it were obliged to apply the 2012 Rules to MF, despite the fact that the SSHD had taken her original decision in 2010 under the pre-existing rules.
10. The wording of A362 is as follows:
A362. Where Article 8 is raised in the context of deportation under Part 13 of these Rules, the claim under Article 8 will only succeed where the requirements of these rules as at 28 July 2014 are met, regardless of when the notice of intention to deport or the deportation order, as appropriate, was served.
11. The Statement of Changes HC 532 confirms that the changes set out in paragraphs 14 to 30 of that statement take effect on 28 July 2014 and apply to all ECHR Article 8 claims from foreign criminals which are decided on or after that date.
12. In YM (Uganda) it was held that the relevant time for determining whether the claimant could meet the test in paragraph 339(b) of at least 15 years continuous residence, minus periods of imprisonment, was prior to the respondent's decision to deport the claimant and not at the date of the hearing. The question of whether the Claimant satisfied the requirements in paragraph 399A(b) of the 2012 rules, depended on at what date he was required to be under 25. A fair and practical construction was that the person had to be 25 at the time of the Secretary of State's original decision. That would fit in with the other provisions in paragraphs 399 and 399A, which required periods of residence in the UK of 15 or 20 years prior to the relevant 'immigration decision'. (Note: the provisions have been deleted by the 28 July 2014 changes to the Immigration Rules (paras.43, 45 and 49)).
13. The Immigration Rules are a complete code for deportation decisions. The Rules have been amended over time and now reflect the statutory provisions contained in section 117 of the 2002 Act which have to be considered in any case in which Article 8 is raised in opposing a deportation decision.
14. The appellant was sentenced to two three years periods of imprisonment for the two offences. In YM (Uganda) it was held that paragraph 398 of the Immigration Rules does not require or authorise the aggregation of prison terms to meet the 12 month or 4 year thresholds (para.44), and so the relevant period for considering the applicable rules is that of three years. Hence paragraph 398(b) is applicable. The calculation of the applicable sentence on this basis is also in accordance with section 117D(4)(b) of the 2002 Act.
15. Paragraphs 399 and 399A also need to be considered which provide:
399. This paragraph applies where paragraph 398 (b) or (c) applies if -
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. This paragraph applies where paragraph 398(b) or (c) applies if -
(a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

Discussion

16. In relation to the order of events I shall consider the protection element of the claim first followed by the human rights element (family and private life) thereafter.
17. The appellant relied upon a claim for asylum or humanitarian protection. It has not been established that if returned the appellant faces a credible real risk of persecution for a Convention reason and so the asylum claim is not made out and is dismissed. It is asserted that the appellant is entitled to a grant of humanitarian protection. It is not disputed that the appellant originates from Kirkuk. It is not disputed that the current country guidance case is AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC).
18. In relation to the appellants home area it was found in AA that:
(i) There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called "contested areas", comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta'min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive; (ii) The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1; (iii) The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c); (iv) In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
19. It has not been establish that the appellant is able to return to or live in his home area, or even safely travel to the same. The assertion in the refusal letter [105] that the appellant could travel from Baghdad to any area of Iraq should he so wish is not made out by the country material. The respondents own Operational Guidance notes for Iraq note that In the Country Guidance (CG) case of AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) (30 September 2015), the Upper Tribunal (UT) found, based on evidence up to April 2015, that the degree of armed conflict in the 'contested' areas does engage Article 15(c) of the QD (paragraph 204, A1) [2.3.5].
20. This reflects the finding in AA that that, in the 'contested' governorates, indiscriminate violence was at such a level that substantial grounds existed for believing that a person, solely by being present there for any length of time, faced a real risk of harm which threatened their life or person (thereby engaging Article 15(c) of the Qualification Directive and entitling a person to a grant of Humanitarian Protection).
21. In the respondents more recent operational guidance, August 2016, it is asserted that following the recent military actions of the Iraqi government some of the area identified as being 'contested ' areas in Iraq no longer are and that a person in such areas is no longer entitled to a grant of humanitarian protection. This is not the position that existed at the date of the hearing and it has not been considered appropriate to invite further submissions on this point. The situation in Iraq is fluid and the content of the document does not warrant this tribunal departing from the country guidance case. If a further country guidance case changes the finding in relation to Kirkuk or other contested areas the situation can be re-appraised at that time.
22. I find it has not been made out that the appellant can safely return to live in Kirkuk at the date of the hearing or successfully travel to reach this are through the disputed territories.
23. The respondent raised the issue of internal relocation in the refusal letter. This can only be by return to the Kurdish regions (IKR) in the north of the country or to Baghdad.
24. In relation to the IKR, it was held in AA that (i) the Respondent will only return an Iraqi national (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; (ii) the IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR; (iii) 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; (iv) 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 - 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).); (b)the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR; (v) 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.
25. The appellant is from Kirkuk which is not within the boundary of the autonomous zone recognised by Iraq in 2005. The appellant is therefore not a person originating from the IKR. The respondent has not shown that the appellant will be accepted for entry to the IKR through the pre-clearance policy referred to in AA. It is accepted the appellant is a Kurd and that a greater part of the north of Iraq is now under the control of the Kurdish forces but this does not warrant a departure from the country guidance case law at this stage.
26. If the appellant is unable to relocate to the north return to Baghdad will have to be considered. In relation to this element the Tribunal in AA found (i) 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 comments in this case on humanitarian protection and areas of the country where there is an internal armed conflict) the Baghdad Belts; (ii) In assessing whether it would be unreasonable/unduly harsh for and Iraqi national (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 (comments in this Chapter, this section, section on Iraq generally and returns); (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. (iii) 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).
27. It is not disputed that this is a decision that will spit this family with the appellant's wife and children remaining in the UK and the appellant returning alone.
28. It is accepted by the respondent in paragraph 25 of the refusal letter that the appellant does not possess a CSID. It is accepted there is no evidence that appellant will be unable to obtain the required identity document to enable his return to Iraq, an issue commented upon further below.
29. The appellant is a Sorani speaker whose command and use of Arabic is poor. This will have a direct impact upon his ability to secure employment in Baghdad.
30. The appellant does not have access to accommodation in Baghdad. There is no evidence of a sponsor as the appellant has no connection to Baghdad.
31. Mr Schwenk challenges the respondent's assertion that support is available to the appellant on return on the basis no evidence of any such support has been provided and that submissions claiming support is available are not evidence. This is factually correct on both points.
32. The appellants country expert reports [report of Professor Joffe - 20 July 2014] when considering the implications for the appellant on return:
'84. In general, Mr Karim, if he is actually returned to Iraq, will arrive there at what is probably the most dangerous and uncertain period since both the American-led invasion in 2003 and the outbreak of intense sectarian violence in 2006. Security provision in Northern Iraq, outside Baghdad, has broken down completely; the Kurdish region is now isolated from the rest of the country except for Christians and Sunni Muslim families - and then only under very stringent conditions; and the south of the country is an extremely hostile environment for anyone who is not a Shi'a Muslim. The difficulties that would be faced by an individual who does not speak good Arabic and has few marketable skills would be vast.
85. Quite apart from this consideration, it has to be said that Mr Karim would face extremely difficult conditions in general, were he to be returned to Iraq. Firstly, it would be extremely difficult for him to relocate elsewhere than Baghdad, unless he can acquire the appropriate documentation, even though his birthplace has been said to be in Kirkuk. It also seems unlikely that he can obtain such documentation since he possesses no means of identity. There is also the question of his personal security in the light of the current wave of violence which is likely to spread into the Baghdad area from Anbar and Nineveh Provinces. Iraq today is still extremely dangerous society and violence is on the rise again. Death rates amongst the civilian population are still extremely high and now seem to have reached a level in excess of 800 per month or about 9,000 a year. There is every possibility that they will increase during 2014 as the sectarian struggle in Iraq intensifies. There is still very high unemployment and public service provision is deplorable. It is extremely difficult to see how Mr Karim could survive in such conditions, as he will find working there with very little knowledge of Arabic or the dominant Kurdish languages virtually impossible.
86. I now turn to address certain specific questions that arise, some of which resume matters already discussed above:
i. I do not consider that the former political activities of Mr Karim's father represent any threat to Mr Karim, were he to be returned to Iraq. Not only has the Saddam Hussain regime disappeared but irredentist Ba'athist supporters are now engaged in struggling against the al-Malili government or have been eliminated over the past decade. They would have no time or inclination to settle old scores which are now of purely historical interest.
ii. Nor do I consider that Mr Karim's comportment or appearance would necessarily put him at risk. However, his inability to speak Arabic may well do so because he will be assumed to be from Europe or the United States and therefore potentially wealthy. As such, he could easily become the target of criminal gangs engaged in kidnappings. The fact his religious observance is deficient and that he has used drugs will only be a threat to his personal security if he were to go out of his way to draw attention to himself in these respects - by eating or using drugs in public during daytime hours in Ramadan, for example.
iii. Nor do I consider the fact that his family have lived abroad and in Europe to be in and of itself a potential threat to his personal safety. Many Iraqis today have close relatives living abroad in precisely this way.
iv. Mr Karim would be able to visit Iraqi Kurdistan simply by registering with the Kurdish security authorities at the border check point, provided he had the correct identity documentation. However, to stay there would need the documents listed above in paragraphs (29) and (30), as well as a Kurdish sponsor and may well meet obstructions to such plans from the Kurdish authorities, particularly in the current political climate.
v. I have to say that I cannot imagine how Mr Karim could survive in Iraq without family support, not least given the fact he is wholly unqualified to work there. He does not speak the language; I am not aware that he has any special skills; he lacks family contacts that could facilitate access to employment; in short, be is bereft of virtually every quality necessary for survival in an extremely dangerous and fraught environment. Family is an essential guarantor of survival in a country like Iraq and the risk of destitution facing him without familial support is very high indeed.
vi. Although Mr Karim could easily stay in touch with his family in Britain through mobile or fixed line telephony as well as the internet, provided he could afford the equipment and services that this would require, it would be extremely difficult, if not impossible for his current partner and her child to join him in Iraq. Firstly, she will only be able to join him as a non-Iraqi spouse, a status that she will have to demonstrate to the Iraqi foreign ministry. She would also have to provide HIV free certificates for herself and her child together with two passport photographs for each individual. Then, within ten days of arrival, she must present a request for a residence permit and pay the requisite fee. Thereafter, she will only be able to leave Iraq after payment of a $20 fee for an exit permit. Quite apart from this, she will find it extremely difficult to find work and, not speaking Arabic, will be totally isolated inside Iraqi society. Also, the fact that she would be a non-Arabic speaking Muslim would further isolate her and might lead to explicit persecution, given the ongoing sectarian attacks on Muslim women in Iraq in the wake of the violence there in the past ten years.
vii. There is no doubt that the security situation has significantly deteriorated, as demonstrated above in paragraph 76-to-83. It is certainly far worse than is described in the UK Border Agency's latest report on the security situation inside the country or as is described in the most recent Country Guidance case. Nor is this situation likely to improve in the near-term or medium-term future.
viii. In short, Mr Karim is quite correct when he asserts that safe relocation inside Iraq is not possible and that the Kurdish region is as inaccessible and insecure as elsewhere in the country as far as he would be concerned.'
33. It is accepted this report was written before the decision in AA was promulgated but many of the views and opinions stated have been confirmed in AA.
34. The respondent raised the issue of travel by air from Baghdad to the IKR but it has not been shown the appellant will have the required documents to be permitted to travel by air and the required funds. It has not been show the fact he may be able to fly will result in the appellant being permitted to remain in the IKR. The appellant will also have to be able to remain in Baghdad until able to leave.
35. Having considered the country guidance case and the appellants personal circumstances I find it has been made out that at this point in time, and in relation to a person with the appellants profile, return to Kirkuk will result in a breach of the appellants Article 3 rights or entitle him to a grant of humanitarian protection pursuant to Article 15(c). In relation to Baghdad, that it will be unsafe or unduly harsh for the appellant to live there making internal relocation unavailable at the date of this hearing. No other viable option has been established on the facts.
36. The appellant relies upon Exception 1, section 33(2) UK Borders act 2007. This arise where deportation would breach the Refugee Convention or the ECHR. Although Humanitarian Protection is not mentioned this is probably caught by Article 3 ECHR in practice and I find the exception made out on this basis.
37. Paragraph 399 and 399A are only applicable to a claim in which an appellant is resisting deportation on the basis of a claim his deportation would be contrary to the United Kingdom's obligations under Article 8 ECHR. This was an issue raised by the appellant although may now be academic. For the sake of completeness I have considered the claim on its merits as this was an area in which it was found legal error had be made.
38. The issue in relation to both the appellant, his partner, and her child, is whether it would be unduly harsh for them to remain in the UK without the appellant.
39. The Court of Appeal has provided clarification of the correct way in which this element should be assessed in the case of MM (Uganda) [2016] EWCA Civ 450 which upheld the decision of KMO that a holistic approach is required.
40. It is submitted that the appellant has not reoffended for almost five years and has been rehabilitated. The pre-sentence report dated 27 August 2008 was commissioned in relation to the firearms and possession of Class A drugs with intent to supply offences. Paragraph 4 of the report dealing with the assessment of 'Risk of Harm and Likelihood of Reoffending' is in the following terms:
'4.1 The risk of further offending is assessed as medium for the following reasons. Mr Karim takes little responsibility for his offending, attributing much of his behaviour to associates and co-defendants. This risk could be reduced if Mr Karim took a greater level of responsibility for his offending behaviour and then completed work addressing his pro-criminal attitudes, problem solving and consequential thinking skills.
4.2 In the commission of the current offences, it is clear that Mr Karim has been heavily involved in offending with his associates and whilst he may have not taken direct action to harm others he is heavily implicated in this behaviour. As such, I feel he has displayed concerning behaviour and presents a medium risk of harm to the general public and associates he feels aggrieved by.
4.3 There is an apparent or identified risk of self-harm.'
41. Whilst Mr Karim has not offended, especially during the time he is aware of the respondents desire to deport him, there is insufficient evidence to show he has acted in the manner suggested by the probation officer who wrote the report and dealt with his offending and reason for the same. Passage of time in not reoffending may therefore not be sufficient in isolation.
42. The error of law finding identified a failing in the original appeal by the appellant in not providing medical evidence to support the claim of depression or evidence to adequately detail the impact on the family of his removal. Further evidence has now been obtained in the form of a psychiatric report from Dr Pablo Vandenabeele in relation to the appellant's wife, Mrs Sophie Ahmed.
43. Dr Vandenabeele was asked the address the following issues:
i. The mental health of the children's mother (needs and diagnosis)
ii. The ability of the children's mother to care for the children in the event the appellant is deported from the United kingdom with particular emphasis on:
a) The impact upon the children's mother's psychological and/or psychiatric presentation
b) The standard of care she will be capable of providing for the children
c) The availability of care from family and others to assist in the event that she is not able to care alone
d) The impact of the appellant's removal on the children in relation to their physical and emotional well-being in light of a-c above.
44. Dr Vandenabeele set out his opinion in section 14 of the report in the following terms:
'14.1 Unfortunately, to date I have not had sight of her medical notes. I therefore reserve the right to alter my opinion, in light of information that may be contained within such documents, should these be made available to me.
14.2 It seems that Mrs Ahmed has been suffering from mental health difficulties for a considerable period of time. As far as I was able to ascertain it appears that she first developed difficulties in terms of her mental health when she was 21 years of age and studying at the University of Salford. She explained to me that her current difficulties emerged following the birth of her son three years ago.
14.3 Based upon the information provided to me by Mrs Ahmed and the findings obtained during my assessment it is my view that she is currently suffering from a depressive disorder which is of moderate severity. She described a history of low mood, tearfulness, anhedonia, low self-esteem and some ideas of hopelessness towards the future. She also reported the presence of biological symptoms that can often be seen in those suffering from a depressive illness.
14.4 It is also my view that Mrs Ahmed is suffering from a comorbid anxiety disorder and that such an anxiety disorder is characterised by her suffering from generalised anxiety and panic attacks.
14.5 As far as I was able to establish it seems that to date Mrs Ahmed has not had any treatment for her mental health difficulties. She told me that she had not consulted her GP for her mental health problems as she felt "stupid".
14.6 The information provided to me by Mrs Ahmed is highly indicative of the fact that her mental health difficulties have had a significant impact upon her day-to-day functioning. She appears to be highly reliant upon her husband in order to assist with childcare and as far as I was able to establish she felt no longer confident to travel places or go out on her own. I also understand that there has been different occasions whereby she had to call her husband when he is out due to her suffering from what appears to be panic attacks. Further, it is also the case that Mrs Ahmed explained to me that as a result of her mental health problems she has increasingly isolated herself during recent years; this is not uncommon for people suffering from the type of difficulties as those experienced by Mrs Ahmed.
14.7 It is also my view that the deportation of her husband will also be a very stressful life event for Mrs Ahmed in its own right and that such stressors are likely to have a detrimental impact upon her mental state and thereby cause likely worsening of her physical condition.
14.8 The deportation of her husband would therefore have a detrimental effect upon Mrs Ahmed via two separate processes. First, it would remove an important source of support for her. Second, it would introduce a further stressor that may lead to a deterioration in her mental state.
14.9 Whilst to date I have not seen any evidence that the needs of the children are not being met as a result of Mrs Ahmed's mental health difficulties, it appears that some of those needs are currently directly and indirectly fulfilled by her husband. I consider it likely that in the event of her husband being deported that due to the processes identified in paragraph 14.8 Mrs Ahmed's mental health may deteriorate and that therefore this may have a negative effect upon the children and possibly upon their physical needs. The extent of this impact at this stage is difficult to foresee. However, in view that she currently finds it already difficult to leave the house unaccompanied it can be envisioned that aspects such as obtaining shopping, taking the children for social visits or taking the children for activities outside the home will be complicated. It is also the case that the biological symptoms of her condition (such as her poor sleep) may result in there being a negative impact upon the children.
14.10 I am aware that Mrs Ahmed does have a good relationship with her parents and that they live nearby. Therefore, there may be a possibility of them to assist Mrs Ahmed in the event her husband being removed from this country. Further, I am also aware that she is close to her younger sisters. However, I am not clear to what extent Mrs Ahmed's parents or her sister would be able to support her and the children. It is also the case that such support would not counteract the detrimental effect that would likely occur in Mrs Ahmed's mental state as a result of the stress caused by her husband's removal. Therefore the negative emotional impact of Mrs Ahmed's disordered mental state upon her children can less readily be replaced by the support offered by others.
14.11 In the event of the appellant's removal I consider it likely that a further deterioration in Mrs Ahmed's mental state will occur and that she will also be losing an important source of support. Whilst there is a possibility that, in such an event, the physical wellbeing of the children can be maintained by support offered by others it is the case that the emotional impact of Mrs Ahmed's disordered mental state upon the children would be more difficult to counteract. Having carefully considered all the issues it is my view that the removal of Mrs Ahmed's husband is most likely to result in there being a negative impact upon the children's emotional well-being.
45. It is still the case that Mrs Ahmed's medical notes have not been made available to Dr Vandenabeele. It has been stated that Mrs Ahmed has not sought the assistance of her GP in relation to her depression and so there is no evidence of the effectiveness of medication or other forms of intervention such as cognitive therapies upon her in relation to her mental health issues.
46. Oral evidence was received from Mr Karim, his wife Mrs Ahmed, and Joanne Mason (Mrs Ahmed's mother). All gave evidence in chief and were cross-examined without incident.
47. Mr Karim stated he had contacted the Iraqi Consulate in Manchester and asked how he could obtain an Iraqi passport or ID document. He visited the following day and was told he was required to provide a birth certificate or to answer specific questions but that for an interview to proceed he would have to produce a letter from a person in authority such as the Police or Home Office. I find at this stage that it has not been established that the appellant will be unable to secure the documentation required to enable him to return to Iraq. If the situation in that country improves the respondent can organise the interview with the Iraqi authorities in the UK.
48. There has been delay in this matter between conviction, now six years ago, and the date of this hearing but it has not been made out that responsibility for the same can be laid at the respondent's door of that of the Presenting Officers Unit.
49. The offences Mr Karim committed, involving a firearm and Class A drugs, are serious. As recognised in section 117C(2) of the 2002 Act the more serious the offence committed by a foreign criminal the greater the public interest in his or her deportation. It has not been made out that the public interest in Mr Karim's deportation has lessened during the intervening period.
50. It is accepted that deportation will split this family and result in loss of the current family dynamics and relationships and resultant emotional trauma, especially for Mrs Ahmed. This is what deportation does.
51. It is accepted that the children will go from a two parent family to a one parent family and that the best interests of children are ordinarily to be brought up by both their parents in a loving and caring environment.
52. There is insufficient evidence to show that the physical and emotional needs of the children are currently not being met or to show that the effect of deportation is such that the impact of the appellants removal will have such a detrimental impact upon the family that there is no option other than to enable him to remain to prevent irreparable or serious harm to the children
53. It is accepted that Mrs Ahmed will need a lot of support if her husband is removed but it has not been shown that sufficient adequate support in not available within the family or with the assistance of the health and social support networks in the local area. Mrs Ahmed only lives a relatively short distance from her parents and other family and although it is accepted her mother has issues of her own, it has not been shown that in this close family Mrs Ahmed and the children will be effectively abandoned and left to fend for themselves.
54. Whilst it is accepted that Mrs Ahmed and the family will face hardship in readjusting to the consequences of removal, and that initially these may be harsh in light of the medical evidence, I do not find it has been shown they are unduly harsh when all competing facts are considered in the round. The submission focused upon the best care available for the children but this is not a prerequisite. It has not been shown that even if the care available falls below the standard of 'best possible care available' that it will not be adequate in terms of meeting the essential needs of the children. It is not as if the children are being placed in foster care or with strangers as they will continue to be cared for in their family by their mother, with assistance if required. Readjusting to the post deportation lifestyle may take time but it has not been made out that this tips the balance in the appellants favour.
55. I find there are other family members such as Mrs Ahmed's two sisters who it has not been shown will be unable or unwilling to provide assistance if required.
56. Mr McVeety referred to both the lack of Mrs Ahmed's medical history being provided to the psychiatrist and the lack of evidence from other family members who are not referred too at paragraph 1.3 of the report.
57. In conclusion I find the appellant has failed to establish an entitlement to rely upon the exception set out in section 117(5) of the 2002 Act as he has not established that there will be unduly harsh consequences, but as I have found the exception in 117C(4)(c) has been made out this appeal must be allowed.
58. If Mr Karim was not from Iraq the respondent may have succeed but he is and for this reason, at this time, it is Mr Karim who does.

Decision

59. The First-tier Tribunal Judge materially erred in law. I have set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

60. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No application for anonymity before the Upper Tribunal having been made.

Signed
Upper Tribunal Judge Hanson

Dated the 30 August 2016

Annex A

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00983/2014

THE IMMIGRATION ACTS

Heard at Manchester
Decision Promulgated
on 5 February 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MOHAMMAD KADER KARIM
(Anonymity direction not made)
Respondent

Representation:
For the Appellant: Mr A McVeety Senior Home Office Presenting Officer
For the Respondent: Mr M Schwenk instructed by Fadiga & Co Solicitors.

ERROR OF LAW FINDING

1. This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge G Bruce promulgated on the 22 January 2015 following a hearing at Manchester on 8 January 2015.
2. Mr Karim is a national of Iraq born on the 13 January 1990 who is the subject of an order for his deportation from the United Kingdom pursuant to section 32(5) Borders Act 2007. An agreed chronology is set out at paragraphs 2-10 of the determination.
3. The index offending is set out at paragraph 4 of the decision under challenge in the following terms:
4. On the 27 February 2008 the Appellant was convicted of possessing Class A controlled substances (heroin and crack cocaine) with intent to supply. On the 11th August 2008 he was convicted of possession of a firearm without a licence (a sawn-off shotgun). The circumstances relating to that offence was that the Appellant's co-defendants had conspired to use that gun to threaten some people that they had an altercation with, and had fired it at a car in a busy street. The gun had thereafter been stored at the Appellant's premises with his knowledge. In respect of the drugs the trial Judge found him to be "an active drug dealer", albeit a "comparative foot soldier" in the operation. The Appellant was aged 17 at the date of both offences and on the 18th September 2009 received 3 years imprisonment for the drugs offence and a further 3 years for the possession of firearm. These were to be served consecutively. The Judge declined to make a recommendation that the Appellant be deported.
4. The scope of the appeal was limited to the assertion the appellant fell within an exception contained in the UK Borders Act on the basis his deportation from the United Kingdom will interfere disproportionately with his human rights. It was accepted the appellant was unable to pursue a Refugee Convention ground as he is excluded from international protection by virtue of section 72 Nationality Immigration and Asylum Act 2002 although it was argued before Judge Bruce that the proposal to return the appellant to Baghdad, from where he can make his own way overland to his home area of Kirkuk, was too dangerous to undertake as a result of the presence of 'Islamic State'.
5. Judge Bruce found on the facts that Mr Karim fell within paragraph 398(b) of the Immigration Rules which meant that if he was able to show he satisfied one of the exceptions set out in 399 he must succeed in his appeal. The appellant relied upon section 399(a) in respect of the relationship he has with his son Noah and his daughter Aria.
6. The appellant and his witnesses were found to be credible.
7. It is noted in the determination that the family members claim that the effect upon the children of Mr Karim's removal would be 'devastating' [24]. It was found that it would be unduly harsh to expect the British children to go and live in Baghdad with their father [27].
8. The refusal letter referred to the point of return being Baghdad. Judge Bruce refers to the evidence relating to the 'contested' areas north of Baghdad and finds there would be a real risk of serious harm to Mr Karim and his family should they try and travel through Iraq in the manner suggested by the Secretary of State, such that it was found Mr Karim had discharged the burden of proof upon him pursuant to section 399(a)(i)(a) [29].
9. Judge Bruce properly directed herself to the fact this was not sufficient as Mr Karim also had to show it would be 'unduly harsh' for the children to remain in the United Kingdom without him. In relation to this aspect it was found [30]:
"? In this case however, I find there to be particular circumstances that would render this decision to be unduly harsh. The first, and perhaps most important factor, that I have taken into account is that the Appellant has - perhaps unusually - a very close relationship with his young children. I say unusually because it is very often the case that in infancy at least, it is the mother who is the main carer for the child. In this family the parenting is shared equally between the mother and father. I accept the evidence of the witness that the impact on the children, but in particular Noah, of losing his father would be "devastating". Secondly I am not satisfied, as suggested by Mr Dillon, that the grandparents would be able to "fill the void" left by the children's father. Mrs Mason is clearly a woman under a lot of stress. As she put it "everyone brings their troubles" to her. She helps her daughter where she can but having health concerns herself this is not easy and she does not have the capacity ot make up for the absence of the Appellant. Thirdly, it was apparent that Mr Ahmed is very much dependent upon her husband. She has had two children in very close together in age and like any mother of young children is physically and mentally exhausted. She is able to cope with the support of the Appellant, but I share her concern that her anxiety may overwhelm her should he leave. This is particularly so because of the stress and worry that she will inevitably feel if he is returned to Iraq, a destination she not unreasonably describes as a "war zone". Her distress will inevitably be felt by the children. The final factor I have taken into account is that there has been a substantial delay in this case. The Appellant committed the offences aged 17 and went to prison. He has been out of prison for well over three years and during that time has, I accept, turned into a "mature and responsible adult". I find the risk of reoffending to be very low. I have given great weight to the fact that the Appellant has committed serious crimes and that his removal is in the public interest. I cannot however accept that the very harsh, "devastating" impact on the children would, in all the circumstances, be proportionate. I therefore find that the appellant has discharged the burden of proof in respect of 399(a)(i)(b) and allow the appeal under the Immigration Rules."
10. In paragraph 31 the Judge returns to the issue of protection finding that the situation north of Baghdad is extremely precarious and expressing concerns in relation to Mr Karim's safety in those areas controlled by the Iraqi government on the basis he may face "some suspicion" if travelling through a government controlled area on the basis the fact IS attracts jihadists from the West is well documented. The Judge concluded on this issue "?The Appellant has no family, nor tribal affiliations that he can call upon, to offer him assistance or protection. In those circumstances I find him to be at risk over and above that faced by other Iraqi civilians".

Grounds and submissions

11. The Secretary of State seeks to challenge the decision on three grounds.
12. Ground 1 asserts Judge Bruce, in concluding Article 3 is engaged, failed to undertake a holistic assessment of the evidence. It is submitted the Judge, whilst finding a risk in relation to travel by land, failed to consider the option of travel by air using a domestic flight to Kurdistan which are said to occur regularly. There is also a challenge to what is described as the Judge's uncorroborated opinion in relation to the situation north of Baghdad and a failure to properly consider the relocation option. This is of relevance as it is said Mr Karim spent a large proportion of his formative years in in Iraq and has experience and an understanding of life there.
13. The grant of permission to appeal makes specific reference to this issue where it is stated at paragraph 4 :
"It is clear from the determination that the Judge did not consider the issue of internal flight or indeed as to the availability of air travel internally in Iraq. The issue of internal flight was considered by the respondent at [82] to [89] of the refusal letter dated 1 May 2014 but the Judge's findings on these issues at [31] of the determination was not sufficiently reasoned.
14. Ground 2 asserts the Judge erred in assessing whether the effect of the decision would be 'unduly harsh' for a number of detailed reasons set out at Ground 2 (ii) to (xiii) which do not need to be repeated here.
15. Ground 3 asserts inadequate reasoning for the conclusion the decision is unduly harsh or why Mr Karim is not able to relocate within Iraq.
16. Permission has been granted on all grounds.

Discussion

17. In relation to Ground 1 I find arguable legal error proved. The refusal letter clearly raised the issue of internal relocation within Iraq at [82] as an alternative to Mr Karim being able to return to his tribal areas. This element has not been considered by Judge Bruce who focuses upon the prospect of return via the overland route between the point of return to Baghdad and Kirkuk.
18. In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) the Tribunal held that Article 8(1) of the Qualification Directive provides that Member States may determine that a person is not in need of international protection "if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. Article 8(3) states that Article 8(1) applies "notwithstanding technical obstacles to return to the country of origin"
19. The two limbs of the exercise, to decide whether Mr Karim would be safe in another part of Iraq and secondly whether Mr Karim could reasonably be expected to live there, still await determination.
20. It is accepted by Mr McVeety that the Secretary of State only raised the overland route in the refusal letter and at the hearing and so the failure of the Judge to consider air travel as an option within Iraq cannot be criticized.
21. The findings in relation to Article 3 ECHR or Article 15C are therefore infected by material legal error and are set aside.
22. In reaction to the assessment of the impact upon the family in the United Kingdom it is not adequate explained why the fact Mr Karim plays an active role in the life of his family is such a surprise. Shared parental care arrangements are not unusual and it has not been explained why this constitutes 'exceptional circumstances'. The nature of the relationship with the children is not in issue but the focus needs to be upon the effect of the decision upon the children. In similar terms the phrase used by the Judge that "like any mother of young children is physically and mentally exhausted" when referring to Mr Karim's wife may be too wide and generalised a finding as there is no evidence all mothers of young children are so affected, although it is accepted some are and Mr Karim's wife may be one of those.
23. In this regard the test is not that of the 'best available' in terms of the care provided but whether it is adequate to meet the needs of the family. The evidence in relation to the family is limited. The finding the impact will be 'devastating' is not adequately reasoned. Such a term indicates a highly destructive or damaging consequences but no clear findings are made in relation to the same or how the availability of family and professional careers can ameliorate the impact and whether the result is sufficient to satisfy the required test. A bare acceptance of the claim by the family this will be so arguably requires more in a case in which all members wish to prevent Mr Karim's deportation.
24. The nature of the evidence available to support the contention as to the impact of the deportation is also limited. The appellant has the benefit of public funding and commissioned a country report, Probation report, and DNA tests in reaction to issues raised in the refusal letter, yet failed to obtain any medical evidence to support the claim of depression or evidence to adequately detail the impact on the family of Mr Karim's removal.
25. Whilst it is for a judge to decide on the weight to be given to the evidence they receive, the evidence must provide support for the findings made. In this case the evidence is lacking, making the findings arguably unsafe.
26. The issue of delay is noted by the Judge but this is not determinative. Mr Karim is subject to an automatic deportation order in relation to which Parliament has considered and set out the public interest. The impact of the delay is relevant to the nature and quality of the human rights being relied upon and the weight to be given to the same in assessing the required tests. Delay in itself does not provide an exception to deportation set out in UK Borders Act 2007.
27. The determination is set aside to be re-made in accordance with the directions issued to the parties dated 5 February 2016.

Decision

28. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. List for a substantive hearing before Upper Tribunal Judge Hanson sitting at Manchester on Friday 20 May 2016 at 10.00am. Time estimate 3 hours.

Anonymity.

29. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008).

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 5 April 2016