Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/51905/2020
IA/01902/2020 (UI-2021-001428)

THE IMMIGRATION ACTS

Heard at : Manchester Civil Justice Centre
Decision and Reasons Promulgated
On the 8th April 2022
On the 14th June 2022

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

HIWA MUHAMMAD ALI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Holmes, instructed by GMIAU
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appeals, with permission, against the decision of the First-tier Tribunal dismissing his appeal against the respondent’s decision refusing his asylum and human rights claim.

2. The appellant is a citizen of Iraq of Kurdish ethnicity, born on 1 October 1982 in Sulaimaniyah. He arrived in the UK on 17 July 2018 and claimed asylum the same day. His claim was initially refused on the basis that he could be returned to Italy where he had previously been fingerprinted. However the deadline to return him to Italy lapsed and his claim was then considered in the UK and he was interviewed on 30 January 2020 and 14 February 2020. He made further representations on 25 February 2020, commenting on the interview and enclosing further documentary evidence. His claim was refused on 15 September 2020 and he appealed against that refusal decision.

3. The appellant’s claim was made on the basis that he feared the Head of the anti-terrorist & security forces in the Kurdish Region of Iraq (IKR), Wuhab Halabji, after disclosing information to the police about dead bodies found in his garden. The appellant claimed that he was employed as a digging machine operator in Iraq and that on 25 March 2018 the owner of the company where he worked asked him and his friend Delshad, to do some gardening work for Wuhab Halabji. Wuhab Halabji showed him an area to dig, which was to be turned into a swimming pool, and he started digging there but ran into problems when he came across a big mains water pipe. After consulting with Wuhab Halabji the gardener directed him to a new area to begin digging. However, in the middle of the job the gardener told him to stop and he observed that three dead bodies had been exposed. He and Delshad left and went to inform the police. About 15 minutes later one of Wuhab Halabji’s security guards told him to keep the bodies a secret and not disclose anything to the police or media, or he would be killed. He then went to the police station and made a complaint against Wuhab Halabji and handed in a complaint letter to the court as he was told to do. He went to stay with his uncle. On 27 March 2018 an armed group with face coverings raided his family home at 2am looking for him and told his mother that they would find him. He then contacted the police again and reported the incident and went to the police station with Delshad the following day. The police informed him that they had visited Wuhab Halabji’s place and had found the dead bodies, but no arrests were made. The police told him to make a complaint at a court which he did. However on the way a car with tinted windows drove towards him and fired shots at him and Delshad. Delshad was fatally wounded. The appellant claimed that he went to his uncle’s house and saw the shooting incident reported on the news and internet. The police confirmed that they had CCTV footage of the incident, but still no one was arrested. He decided that it was not safe to stay and he went to his uncle’s friend in Erbil and then fled the country with a smuggler. He claimed that his CSID was taken from him by the agent.

4. With his further representations of 25 February 2020, the appellant produced a news article from Rachlaken News, about the incident when his friend Delshad was shot and referring to the digging up of bodies in the garden of a security agency director.

5. The respondent, in refusing the appellant’s claim, did not accept his account of the dead bodies found buried in Wuhab Halabji’s garden and accorded no weight to the news article which was found to be inconsistent with his own evidence. The respondent considered that the appellant was at no risk on return to Iraq. It was considered that even if the account was true, the police had demonstrated that they were willing and able to assist him and the appellant could also relocate to another part of Iraq. The respondent considered that the appellant could re-document himself and therefore would have no problems returning to Iraq. His removal to Iraq would not breach his human rights.

6. The appellant appealed against that decision and his appeal was heard by First-tier Tribunal Garratt on 23 September 2021. Judge Garratt heard from the appellant. He had before him an expert report from Dr Giustozzi. He did not accept that the appellant had provided a credible account of his reasons for leaving Iraq and accorded little weight to the internet media report of the shooting incident in which the appellant claimed his friend had been killed. The judge did not accept that the appellant was at risk on return to Iraq on the basis claimed. As for the feasibility of return to Iraq, the judge considered that, in light of his adverse credibility findings, and noting that the appellant had managed to travel from his home area to Erbil without problems, it may be that he still had his CSID available to him. However on the assumption that he did not have the CSID the judge considered that the appellant’s identity could be established, either through the police in Kurdistan or through his family and he would be able to return to his home area and resume his former life there. The judge also noted the respondent’s contention that he could obtain a CSID in Sulaimaniyah as the new INID terminals had not yet been fitted there. The judge concluded that the appellant was therefore at no risk on return and he dismissed the appeal on all grounds, in a decision promulgated on 25 November 2021.

7. The appellant sought permission to appeal to the Upper Tribunal on five grounds,: that the judge had failed to take account of material matters when rejecting the news report, namely the expert evidence and the evidence of the website domain; that the judge had failed to give adequate reasons as to why he rejected the appellant’s undisputed and uncontested case that he was no longer in possession of his CSID; that the judge had failed to apply the country guidance in SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 when concluding that the appellant could travel safely and freely without a CSID; that the judge failed to address the evidence and submissions as to the installation of the INID system in Sulaimaniyah; and that the judge had conflated speculation with deduction in regard to the identity of the people shooting at him.

8. Permission was granted on all grounds, but with particular reference to the first and third grounds. The respondent did not file a rule 24 response.

9. Both parties appeared before me at the hearing and made submissions on the error of law. On the basis of those submissions, I am persuaded that Judge Garratt’s decision is materially flawed and has to be set aside.

10. There are two principal grounds of challenge to the decision: the first concerned the judge’s adverse credibility findings and the second concerned his findings on re-documentation and the ability of the appellant to travel safely back to his home area. I find both to be made out.

11. With regard to the first ground, there was evidence before Judge Garratt upon which the appellant relied to support his claim about the unearthing of the dead bodies and the subsequent threat to his life in the shooting incident, namely an internet news article from Rachlaken News. The judge dealt with that evidence at [34], giving several reasons for according it no weight, finding that there was no evidence of the authority of the media resource ‘rachlaken’. However, as Mr Holmes submitted, there were two items of evidence which were before the judge which explained the authority and website domain of Rachlaken News but which he appeared to have given no consideration. Firstly, there was the expert report of Dr Giustozzi which, at [16], referred to and confirmed the authenticity of the website and opined that the news article was not fake. Secondly, there were various documents at pages 63 to 67 about the website of rachlaken news giving details of the website and its domain and registration in Suleymaniah in Iraq.

12. Mr Bates’ response to the submissions made in that regard was that the judge had referred to the expert report and that the information provided therein had come from a researcher and not directly from Dr Giustozzi in any event and that the judge was therefore entitled to give the report little weight. However I cannot see how that is a sufficient response. It is correct that Judge Garratt referred to Dr Giustozzi’s report, but he did so in relation to the part of the report confirming Wuhab Halabji’s identity and position and the section referring to re-documentation and relocation within Iraq, but not in relation to [16] confirming the existence of Rachlaken news. As for the fact that Dr Giustozzi relied on a researcher rather than his own direct knowledge of the rachlaken news website, that may have been a matter of concern to the judge, but it also may not have been and it cannot be said that he would have reached the same finding had he considered that section of the expert report. That is particularly so when there was other information about the website domain and its registration which he clearly failed to consider at all. Mr Bates made no submission on that.

13. It may be, given the other concerns set out at [34] of his decision, that Judge Garratt would still have accorded little weight to the Rachlaken media report even if he had considered the expert’s observations at [16] and the articles at pages 63 to 67, but it is certainly not the case that such an assumption can be made in that regard. It seems to me that the failure to consider that evidence was a material omission which is fatal to the judge’s overall credibility findings and indeed to the decision as a whole.

14. In such circumstances, the other challenges in the grounds are not material. Nevertheless, I would comment on the second principal ground relating to re-documentation as it seems to me that that ground is also made out. Mr Bates accepted that Judge Garratt’s finding at [39], that the appellant could travel from Baghdad to his home area without a CSID, was an unjustified departure from the country guidance in SMO, but he resisted the challenge to the judge’s decision on the basis that he was entitled to conclude, as he did, that the appellant had retained his original CSID and would therefore not need to obtain new documentation. However the judge’s finding in that regard was not a clear one, as he considered that the appellant’s CSID “may still be available to him”, and in any event that was based upon his view of the appellant not having given a credible account in relation to the core aspect of his claim. For the reasons already given, the judge’s adverse credibility findings were not ones which were sustainable and accordingly his conclusion on the availability of the appellant’s original CSID is similarly unsustainable.

15. For all of these reasons it seems to me that the judge’s decision has to be set aside in its entirety and the decision re-made afresh before another Tribunal. The appropriate course is for the case to be remitted to the First-tier Tribunal for a de novo hearing.

DECISION

16. The making of the decision of the First-tier Tribunal involved the making of an error on a point of law and the decision is set aside. The appeal is remitted to the First-tier Tribunal pursuant to section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Statement 7.2(b), to be heard before any judge aside from Judge Garratt.

Signed: S Kebede Dated: 13 April 2022
Upper Tribunal Judge Kebede