Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/00343/2020
PA/50707/2020

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On the 7 June 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

MSH
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify him. Failure to comply with this order could amount to a contempt of court.

Representation:
For the Appellant: Mr. J Howard, Solicitor, Fountain Solicitors
For the Respondent: Mr. C Williams, Senior Presenting Officer

DECISION AND REASONS
Introduction
1. This is an appeal against the decision of Judge of the First-tier Tribunal Chohan (‘the Judge’), sent to the parties on 2 February 2021, by which the appellant’s appeal against a decision of the respondent to refuse his international protection claim was refused, as was the appellant’s human rights (articles 3 and 8) appeal.
Anonymity
2. The Judge made an anonymity order and no party before me requested that it be set aside. I confirm the order above.
Background
3. The appellant is a national of Iraq, an ethnic Kurd and aged 20. He hails from Halabja, in the Iraqi Kurdish Region (‘IKR’), close to the Iranian border.
4. The basis of his claim for international protection is that towards the end of January 2018, when aged 16, he met a girl, Khaje, at a friend’s house, though they did not speak. They met again the following month, and he handed her a piece of paper detailing his mobile phone number. He informed her that he loved her and wanted to marry her. Khaje contacted him by phone two days later and he again informed her that he wanted to marry her. A friendship developed over the phone. They met in a park in July 2018 along with a friend of Khaje, who took photos of them together. Khaje’s family later saw the photos. Her uncle, brother and cousins attended the restaurant where the appellant worked and threatened to kill him if he continued to have contact with her. Khaje’s paternal uncle and his sons are said to be members of the Patriotic Union of Kurdistan (‘PUK’). The appellant ignored the threat and continued to speak to Khaje. On 11 July 2018 the appellant phoned Khaje, but her phone was answered by her uncle who threatened to kill the appellant. The appellant again ignored the threat. He phoned Khaje two days later and she warned him that her family was planning to kill him. The appellant spoke to his family, and they arranged for him to leave Iraq. The appellant travelled through Turkey, Greece, Italy and France before arriving in the United Kingdom, he states, on 20 November 2018. He claimed asylum on 28 February 2019.
5. The respondent refused the application on 29 June 2020. She accepted that the appellant was a national of Iraq and an ethnic Kurd. She accepted that the appellant had been in contact with Khaje and that he had drawn the adverse attention of her family. No adverse inference was taken as to the appellant’s failure to claim asylum on route to this country.
6. However, it was not accepted that the appellant possessed a well-founded fear of persecution for a Convention reason, the respondent concluding that the appellant was not a member of a particular social group for the purpose of the 1951 UN Convention on the Status of Refugees. The respondent further concluded that Khaje’s family did not have influence in the IKR and so the appellant could internally relocate.
Grounds of Appeal
7. The appellant’s grounds of appeal are not properly delineated into separate, particularised complaints identifying legal error, as required: Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC) and Harverye v. Secretary of State for the Home Department [2018] EWCA Civ 2848, per Hickinbottom LJ at [55]-[58] (obiter). The failing was accepted by Mr. Howard, who was not the author of the grounds.
8. The grounds purport to identify two grounds of challenge. Upon consideration, I was able to identify ten separate grounds as being advanced. There was a failure by the author of the grounds to adequately assess the merits of each individual challenge when preparing the grounds, because whilst some enjoyed merit, others were hopeless.
Decision on Error of Law
9. Mr. Williams accepted at the outset of the hearing that the decision of the Judge could not stand because of material errors of law in respect of the international protection and article 3 appeals. I am grateful to Mr. Williams for his candour, and agree with his assessment.
10. A significant concern arises at [11] of the Judge’s decision. The Judge concludes that the appellant had a ‘superficial relationship’ with Khaje that her family disapproved of, and consequently he would not be at any real risk of persecution at the hands of her family when returned to Iraq. Only then, having reached an adverse conclusion as to the existence of a real risk of persecution, does the Judge turn his mind in the same paragraph to additional evidence relied upon by the appellant, namely a letter from his mother and Facebook posts:
‘11. … The letter from the appellant’s mother purports to corroborate the appellant’s account, but in view of my findings, it does not advance the appellant’s claim. I must agree with Mr. Corden [Presenting Officer] that the Facebook posts do not take matters any further.’
[Emphasis added]
11. The approach adopted is the antithesis of the required approach that all material considerations should be considered cumulatively, unless there is no serious possibility that the facts are as contended for by an appellant: Karanakaran v. Secretary of State for the Home Department [2000] 3 All E.R. 449.
12. Further, Mr. Williams accepted that the Judge’s consideration of the country guidance decision of SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 00400 (IAC) is inadequate in respect of the appellant’s ability to secure a CSID.
13. In the circumstances, the only proper course is to set aside the Judge’s decision in respect of the appellant’s Refugee Convention, humanitarian and human rights (article 3) appeals.
14. The appellant was also granted permission to appeal in respect of a solitary challenge to the dismissal of his human rights (article 8) appeal. In granting permission to appeal Upper Tribunal Judge Keith observed that it was weak. The challenge is identified in general terms: ‘the FTT Judge has failed to provide adequate reasons as to why the appellants’ human rights claim under Article (8) [sic] ECHR was not made out.’ There is no merit to this challenge. The Judge set out clear reasons for refusing the article 8 appeal at [19] of his decision:
‘19. Under article 8, the appellant may well have established some private life, but it must be limited. The appellant is 19 years of age and the bulk of his life he has spent in Iraq and not the United Kingdom. The appellant was born and bred in Iraq, and he is familiar with the customs, culture and language of his home country. The appellant does not speak the English language and there is nothing to suggest that he is financially independent. Perhaps more importantly, any private life that has been established, has been during a period when his status has been precarious. The fact that the appellant has been able to survive in the United Kingdom for just over two years, an alien country to him when he first arrived, suggests he should have little, if any, difficulty on return to Iraq, a country he is familiar with.’
15. Mr. Howard properly observed that there was little he could add to the ground. The problem with advancing generalised grounds is that they often fail to engage with the decision itself, as evidenced in this matter where it is clear that cogent reasons were provided by the Judge. This ground should not properly have been advanced. The appellant’s article 8 appeal is dismissed.
16. I was informed by Mr. Howard that at the resumed hearing the appellant would wish to rely upon his present relationship, which is some four months old, with additional evidence to be filed. Mr. Howard acknowledged that consideration would have to be given to whether a ‘new matter’ could properly be considered by a judge at the next hearing, but I acceded to his request that notice of the proposed ‘new matter’ be detailed in this decision.
Resumed Hearing
17. Having regard to the overriding objective and being mindful of paragraph 7 of the Joint Practice Statement of the First-tier Tribunal and the Upper Tribunal, I am satisfied that the nature or extent of any judicial fact-finding which is necessary in order for the decision in the appeal to be re-made is such that it can only properly be undertaken in the First-tier Tribunal.
Direction
18. Whilst directions in this matter should properly be made by the First-tier Tribunal, consequent to the indication that a new matter may be raised at the resumed hearing, I directed at the conclusion of the hearing:
i. The appellant is to file and serve, if so advised, any additional evidence to be relied upon no later than 14 days before the resumed hearing.
Notice of decision
19. The decision of the First-tier Tribunal involved the making of an error on a point of law in respect of the (1) Refugee Convention, (2) humanitarian protection, and (3) human rights (article 3) appeals, and in respect of these grounds of appeal brought under section 84 of the Nationality, Immigration and Asylum Act 2002 I set aside the Judge’s decision sent to the parties on 2 February 2021 pursuant to section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007.
20. No findings of fact made by the First-tier Tribunal in respect of the (1) Refugee Convention, (2) humanitarian protection, and (3) human rights (article 3) appeals are preserved.
21. The decision of the First-tier Tribunal in respect of the human rights (article 8) appeal stands.
22. The anonymity order is confirmed.

Signed: D O’Callaghan
Upper Tribunal Judge O’Callaghan
Dated: 10 June 2022