Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
UI-2022-000693
PA/52847/2020 (IA/02644/2020)

THE IMMIGRATION ACTS

Decision under rule 34
Decision & Reasons Promulgated
On the 5 July 2022
On the 06 July 2022

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

RKA
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Unless the Upper Tribunal or a court directs otherwise no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, the appellant and the respondent. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

Introduction

1. This decision is made without a hearing under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Consequent to the respondent confirming that she no longer contests the appeal at the error of law stage, observing the importance of these proceedings to the appellant and being mindful of the overriding objective that requires the Tribunal to deal with cases both fairly and justly, I am satisfied that it is just and fair to proceed to consider this matter under rule 34.

2. The appellant is represented by Sutovic & Hartigan Solicitors.

3. He appeals a decision of Judge of the First-tier Tribunal Dineen (‘the Judge’), dated 21 December 2021, dismissing his international protection appeal. The challenged decision of the respondent is dated 1 December 2020.

4. Upper Tribunal Judge Grubb granted permission to appeal to this Tribunal by a decision dated 11 April 2022.

5. Mr. C Avery, Senior Presenting Officer, confirmed on behalf of the respondent by means of a ‘rule 24’ response dated 11 May 2022 that there was no opposition to the appellant’s appeal at the error of law stage and this Tribunal was invited to set aside the Judge’s decision. Both parties subsequently communicated that they were content for the remaking of the decision to be undertaken by the First-tier Tribunal.

Anonymity

6. The Judge issued an anonymity order. The appellant is seeking international protection and it is presently in the interests of justice that the anonymity order continues. The order is confirmed above.

Brief Facts

7. The appellant is an Iraqi national who is presently aged 20. He is ethnically Kurdish. He asserts that he has a well-founded fear of persecution consequent to a blood feud.

First-tier Tribunal

8. The appeal came before the Judge sitting at Hatton Cross on 26 November 2021. The Judge found, inter alia:

The appellant is not a credible witness, at [51]

The appellant has not lost touch with his family, at [49]

9. As to the existence of a blood feud, the Judge observed, at [43]-[44]:

‘43. There is a substantial number of matters, which I would expect to be central to the appellant’s account and therefore his recollection, on which he claims to have no memory. These include:

[R’s] family name.

Her siblings and their names.

The date on which the appellant and [R] had sex in her family’s home and how long thereafter it was before the appellant left Iraq.

Where the rest of her family were when this occurred.

How long the appellant and [R] were at her home on this occasion.

When [R] was killed.

Who killed her.

The manner in which she was killed.

When the appellant’s family’s house was attacked.

The nature of the attack on members of the appellant’s family, and any injuries, such as any bullet wounds, which they suffered.

Any treatment, in hospital or otherwise, which they received.

Where his family moved to.

Whether they are living in satisfactory circumstances.

Whether the appellant’s family members are still alive.

Whether anybody came to look for the appellant when he was staying with his sister prior to leaving Iraq.

44. While the appellant might not have known, or might have forgotten, individual matters, I find that his claimed extensive lack of knowledge undermines the credibility of his account.’

10. In respect of relevant documentation, the Judge concluded, at [52]-[53]:

‘52. As to the practicability of return to that country, and the issues of redocumentation to enable that to take place, the procedures referred to in the country guidance case of SMO and Others [2019] UKUT, and the other matters set out in paragraphs 32-41 of the appellant’s skeleton argument, are complex.

53. However, the procedures boil down to the fact that the appellant would require a CSID or INID document, and to obtain such would need to establish his identity to the Iraqi authorities. In the light of my finding that he has family in Iraq with whom he is in contact, I am satisfied that such identification, and the obtaining of the necessary documents, can be achieved. There is, therefore, as I find, no difficulty about redocumentation or re-entry to Iraq, with the ability to pass through any checkpoints or security procedures to return to his home area.’

Grounds of appeal

11. The appellant relies upon grounds of appeal drafted by Ms. C Zapata Besso, Counsel, who did not represent him before the Judge. Four grounds of challenge are identified:

i. The Judge materially erred by adopting a flawed approach to the issue of redocumentation; misapplying relevant country guidance and policy.

ii. The Judge materially erred by failing to take into account relevant elements of the appellant’s evidence.

iii. The Judge adopted a flawed approach to his consideration of section 8 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

iv. The Judge failed entirely to consider the appellant’s human rights (article 8) appeal.

12. Whilst observing the limited merits of ground 3, Judge Grubb granted permission to appeal on all grounds.

Analysis

13. The respondent accepts that the Judge materially erred in her consideration of this important issue. She was correct to adopt this conclusion for the reasons detailed below.

14. I observe, with respect to the Judge’s conclusions at [43]-[44] of his decision, that there is no express reference to the contents of the appellant’s witness statements dated 29 January 2019, 28 September 2020, 14 October 2020 and 26 June 2021 from which can be identified answers to several questions asked by the Judge:

The appellant’s relationship with [R] last 6 months.

They had sex in or around May/June 2018.

[R] was killed in or around August 2018.

[R’s] full name was [RM] and she was born in 2004.

The family home of the appellant was attacked in or around August 2018.

[R’s] family members shot at the appellant’s father and brother.

Both the appellant’s father and his brother received non-life threatening injuries.

They were treated at the house of a relative, who is a doctor.

They appellant stayed with his sister for a short period before leaving Iraq.

The second attack on the family home involved fire, and his brother’s leg was burned.

15. It is observed that several of these answers are identified in the section of the Judge’s decision entitled ‘the appellant’s case’.

16. It is a significant concern that following a hearing where the parties were represented and submissions made, the Judge failed to note in his decision the contents of several witness statements and indeed appeared unaware of elements of the appellant’s evidence. Such error is material.

17. The Judge concluded at [53] that the appellant will be able to return to Iraq and become redocumented with the help of his family members residing in the Kurdish Region of Iraq (‘KRI’) without facing serious risk of harm at checkpoints. It is asserted by the appellant: ‘That conclusion is simply unsustainable in light of the relevant country guidance and policy on this issue.’

18. Relevant country guidance at the time of the Judge’s decision, SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 00400 (IAC), confirmed at paragraph 11 of the headnote:

‘11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel. ‘

[Emphasis added]

19. The respondent’s CPIN ‘Internal relocation, civil documentation and returns’ (June 2020), at para 2.6.18, confirmed at the date of the Judge’s decision that ‘an individual would be unable to travel to their local CSA from Baghdad to apply for new documentation without a CSID or INID’.

20. The judicial consideration of the appellant’s ability to secure a CSID or INID and consequently traverse Iraq lacked adequate reasoning and was materially erroneous in law.

21. The identified material errors of law fatally undermine the judicial assessment of the appellant’s international protection appeal.

22. The Judge further erred by failing to consider the appellant’s article 8 appeal.

23. In the circumstances the only proper course is for the decision of the Judge to be set aside with no credibility findings preserved.

24. The appellant’s legal representatives requested that the Judge’s observation at [35] of the decision be preserved, namely that ‘if his account is true, the appellant would be at risk of ‘honour killing’ on return and would be unlikely to be able to access state protection’. This observation, and it can be no more as the Judge found the appellant incredible, cannot properly be preserved, as it is an issue of fact that is properly to be considered on the evidence as to circumstances then existing at the resumed hearing.

Notice of Decision

25. The decision of the First-tier Tribunal, dated 21 December 2021, involved the making of a material error of law and is set aside pursuant to section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

26. No findings of fact are preserved.

27. This matter is remitted to the First-tier Tribunal at Hatton Cross to be remade. It is to be heard by any judge other than Judge Dineen.

Signed: D. O’Callaghan
Upper Tribunal Judge O’Callaghan

Dated: 5 July 2022