Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: UI-2021-001180
IA/02305/2021 (PA/50965/21)

THE IMMIGRATION ACTS

Heard At: Field House
On the 13th April 2022
Decision and Reasons Promulgated
On the 14th June 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SMJ
(anonymity direction made)
Appellant
And

Secretary of State for the Home Department
Respondent

For the Appellant: Ms Kelleher, Barnes Harrild and Dyer Solicitors
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Iraq born on the 11th July 1980. He appeals with permission against the decision of the First-tier Tribunal (Judge O’Garro) to dismiss his appeal on protection grounds.

Background the Basis of Claim

2. The Appellant is a Kurd from Kirkuk who claims to have a well-founded fear of persecution for reasons of his imputed political opinion. He claims that his father was a prominent member of the Ba’ath Party who was killed in 2001 because of that association. After his death local Ba’athists tried to recruit the Appellant and the Appellant’s brother. One of those men, an Abu Omer, was subsequently killed himself, and the Appellant’s brother was blamed for his death. When the brother could not be found, the Appellant and his mother were arrested. The Appellant was held in detention and tortured.

3. All of this is said to have taken place under the former Ba’athist regime. After the American-led invasion of 2003 the Appellant was released from detention and returned to Kirkuk. He took up work as a mechanic and subsequently as a bodyguard for the leader of Kirkuk City council.

4. At some point in 2005 the Appellant came to the attention of the son of Abu Omer. He accused the Appellant of being responsible for his father’s death and threatened to kill him. These threats were delivered by letter, and on one occasion the Appellant was shot at whilst driving on the Baghdad Road – two of his fellow passengers in the car were wounded in that incident. The Appellant was afraid to seek help from the police because they were all Kurdish and he knew that his father had done "bad things to them" when he was an active Ba'athist. Fearing for his life he left Iraq in 2008.

5. That was the claim advanced by the Appellant when he arrived in the UK in March 2008.

6. The Respondent refused to grant asylum and the Appellant’s consequent appeal was dismissed by First-tier Tribunal Judge Lester on the 19th January 2012.

7. On the 19th November 2014 the Appellant filed further submissions with the Respondent, who took until the 21st March 2017 to reject them. A third set of submissions was made on the 17th November 2017 and on the 17th February 2021 the Respondent again refused to grant protection, albeit that she did accept that the latest submissions amounted to a ‘fresh claim’ under paragraph 353 of the Immigration Rules.

8. The matter came before Judge O’Garro on the 21st June 2021. Having heard the Appellant’s evidence, and that of his brother, Judge O’Garro dismissed the appeal. The Appellant now has permission to appeal on all the grounds he advances.

Error of Law: Discussion and Findings

The Medical Evidence

9. The Appellant had relied on a medical report prepared by Dr Frank Arnold. Dr Arnold found the Appellant to have three scars on his body highly consistent with his attribution of torture. He diagnosed him with Post-Traumatic Stress Disorder.

10. In light of Dr Arnold’s report, Judge O’Garro was asked to treat the Appellant as a vulnerable witness, which she duly did, stating at paragraph 37 that she accepted his report “in its entirety”. She then went on to reject his account of detention and torture. Her central conclusions on this matter are encapsulated by this passage at her §56:

To answer the questions about how the appellant received his injuries , one must go back to the general credibility findings and the believability of the appellant’s case. In terms of credibility and believability, I have found the appellant’s claim that he was detained wanting and for that reason, I find the medical evidence carries little probative weight.’

11. Ground (i) is that this approach was contrary to that set out in Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367. Rather than evaluating the evidence as a whole, Judge O’Garro has rather rejected the physical evidence of torture because she had already found the Appellant not to be credible. In making that finding she relied in large part on the findings that Judge Lester had made in 2012. But Judge Lester had of course made those findings without the benefit of the medical evidence: it is submitted on the Appellant’s behalf that it was incumbent upon Judge O’Garro to consider all of the material – including the new material – “in the round”.

12. For the Secretary of State Mr Tufan accepted that this ground was made out. Paragraph 56 contains a classic Mibanga error, and furthermore there would appear to be some contradiction between the Tribunal accepting the report “in its entirety” and then giving it only a little probative weight. Given that concession I need say no more about ground (i) other than I agree that it is made out.

Corroborative Evidence

13. Ms Kelleher submits that First-tier Tribunal acted perversely/made findings unsupported by the evidence when it concluded as it did that the Appellant could have produced documentary evidence to support his claim to have been imprisoned under Saddam Hussein’s regime. The grounds describe this conclusion as “pure speculation”. The Tribunal says at its §49 “I would expect that if he was detained there would have been some legal process, which means there should be some documentation relating to his arrest and detention but he has provided none…”. The decision goes on to reason that since family members in Iraq have been able to provide the Appellant with a number of documents in support of his claim, they should have been able to get these ones.

14. Again, this is an error in the decision that is accepted by Mr Tufan on behalf of the Secretary of State. It cannot rationally be said that records of that detention – if indeed any were made – were evidence of the type discussed in TK (Burundi) v Secretary of State for the Home Department [2009] EWCA Civ 40. They could certainly not be described as “readily available” and in those circumstances it was unfair to weight their absence against the Appellant. He claims to have been subject to a quite arbitrary detention over twenty years ago, under a regime that has subsequently fallen and found all traces of its existence eradicated by a protracted and brutal civil war. The arrest is said to have happened in Kirkuk, a city that in the intervening timespan has seen military occupation by the new army of post-Ba’athist Iraq, Shi’ite militias, Islamic State and Kurdish peshmerga. The likelihood of any documents from the Ba’athist days had to be evaluated in light of that history.

15. It follows that I need not address any of the remaining grounds since the parties were in agreement that the errors identified above were of sufficient gravity that the decision had to be set aside in its entirety.

No Preserved Findings

16. All of the credibility findings made are infected by the errors identified above and are set aside.

17. Although the point did not arise in the grounds, the Tribunal’s finding on whether the Appellant could obtain new documentation in Iraq does appear to be at odds with the conclusions reached in SMO & Ors (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC). Judge O’Garro concluded that he could obtain new documentation with the assistance of family members in Iraq without apparently factoring in the finding in SMO that Kirkuk has a new INID terminal: that being so there is no way that a family member could obtain a new document on his behalf in his absence, since he would need to present himself to give his biometric data. Given that we are imminently to have a new country guidance case on Iraq the parties agreed that at the de novo hearing in the First-tier Tribunal this issue would have to be addressed afresh.

Anonymity

18. The Appellant continues to maintain that he requires protection. In considering whether to make an anonymity order I have had regard to the Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, paragraph 28 of which reads:

In deciding whether to make an anonymity order where there has been an asylum claim, a judge should bear in mind that the information and documents in such a claim were supplied to the Home Office on a confidential basis. Whether or not information should be disclosed, requires a balancing exercise in which the confidential nature of the material submitted in support of an asylum claim, and the public interest in maintaining public confidence in the asylum system by ensuring vulnerable people are willing to provide candid and complete information in support of their applications, will attract significant weight. Feared harm to an applicant or third parties and "harm to the public interest in the operational integrity of the asylum system more widely as the result of the disclosure of material that is confidential to that system, such confidentiality being the very foundation of the system's efficacy" are factors which militate against disclosure. See R v G [2019] EWHC Fam 3147 as approved by the Court of Appeal in SSHD & G v R & Anor [2020] EWCA Civ 1001.

19. In light of that guidance I am satisfied that it would be appropriate to make an order in the following terms, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Decisions

20. The decision of the First-tier Tribunal is set aside.

21. The decision is to be remade de novo in the First-tier Tribunal by a judge other than Judge Lester or Judge O’Garro. It should be listed at Taylor House.

Upper Tribunal Judge Bruce
13th April 2022