Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/51322/2021
IA/03572/2021 [UI-2021-001306]

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 17 March 2022
On the 09 May 2022

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY JUDGE of the UPPER tribunal JARVIS

Between

MR PAS
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms A. Radford, Counsel instructed by Elder Rahimi Solicitors
For the Respondent: Mr S. Walker, Senior Home Office Presenting Officer

DECISION AND REASONS

Direction regarding anonymity
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, we make an anonymity order. 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 or members of his family. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

INTRODUCTION

1. The Appellant is a national of Iraq, born on 9 August 1982. On 3 August 2021 First-tier Tribunal Judge Sweet (hereafter “the Judge”) dismissed the Appellant’s appeal against the Secretary of State’s decision to refuse his international protection and human rights claims, dated 5 March 2021.

2. In response to this the Appellant applied for permission to appeal to the Upper Tribunal which was granted by First-tier Tribunal Judge Chohan on 23 November 2021.

The judgment (3 August 2021)

3. In the circumstances which we lay out below we do not say very much about the Judge’s decision other than to summarise that the Appellant’s claim to have been attacked by Hashd al-Shaabi in Chorija (Kirkuk) leading to him being shot and injured was rejected on the grounds of adverse credibility. On the basis that the Appellant was a wholly incredible witness, the Judge concluded that the Appellant had failed to show that he could not be redocumented by obtaining a replacement CSID applying the learning in SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC).

The appeal hearing

4. The appeal hearing was conducted in person at Field House. At the beginning of the hearing, Mr Walker on behalf of the Secretary of State, in his customary fair and pragmatic way, indicated that although he recognised that the Secretary of State had provided a rule 24 response to the Upper Tribunal (dated 8 December 2021) in which the Appellant’s appeal was opposed, on reflection he had taken a different view.

5. Mr Walker submitted that he agreed with the Appellant’s complaints at ground one that the Judge had provided inadequate reasoning for concluding that the Appellant was not a reliable witness in respect of the core aspects of his international protection claim.

6. He also indicated that, after discussions with Ms Radford, he agreed that the Judge had failed to carry out a proper assessment of whether or not the Appellant would be able to be re-documented in line with the guidance given by the Upper Tribunal in the country guidance case of SMO.

7. Mr Walker also accepted that the Appellant’s second point about the lack of findings in respect of re-documentation issues was a Robinson obvious point and that he did not object to the Upper Tribunal having regard to it.

8. Unsurprisingly Ms Radford was content with the Secretary of State’s view and asked us to find that, in light of those concessions, the decision of the Judge should be set aside for a full rehearing of the appeal at the First-tier Tribunal.

FINDINGS AND REASONS

9. In light of the agreement between the parties we are prepared to accept that there are material errors in the credibility findings by the Judge such as to cause those findings to be set aside in their entirety. We also accept the joint view of the parties about the Robinson obvious redocumentation point.

10. In fairness to the Judge we should add that neither representative was able to particularly assist in what arguments (if any) or what evidence was led (if any) in respect of redocumentation in this case at the First-tier hearing – it appears to us that this may not have been properly argued.

11. We ourselves had noted in our own preliminary review of the case that the Secretary of State’s position in the refusal letter (dated 5 March 2021) at paragraph 60, in which the decision maker asserted that the Appellant could reasonably obtain a replacement CSID card from the Iraqi embassy in the UK, was plainly at odds with the Secretary of State’s own policy position dating from June 2020 in the CPIN document entitled ‘Iraq: Internal relocation, civil documentation and returns’, despite the Secretary of State claiming that she had considered this guidance as part of the decision-making, see paragraph 7 of the refusal.

12. In the ‘Internal relocation, civil documentation and returns’ CPIN, the Secretary of State expressly concedes at section 2.6.15 that it was not (even in June 2020) possible for an Iraqi national to apply for an INID card outside of Iraq. The passage also states that specific information provided to the Returns Logistics Department by the Iraqi embassy in London indicated that Iraqi nationals were being advised to apply for a 1957 Registration document.

13. We also noted the Secretary of State’s express concession at 2.6.16 that it is highly unlikely that an Iraqi national can obtain a CSID from the Iraqi embassy in London as had previously been the position before the Upper Tribunal in SMO.

14. We therefore concluded that the Robinson point raised by the Appellant holds further force due to the Secretary of State’s plain misapplication of her own extant published policy.

15. For completeness, we are also prepared to accept that the single ground challenging the adverse credibility findings is also capable of being read into the corollary matter of redocumentation especially bearing in mind the Judge’s own finding that the adverse conclusions on credibility interplayed with this issue, at [34].

16. Both parties are therefore strongly encouraged to provide detailed assistance to the next judge who considers this case in respect of the potential for redocumentation from the Iraqi embassy in London. Both parties will also be expected to make submissions on whether or not the position taken by the Secretary of State in the CPIN document has any material impact upon the Upper Tribunal’s view of the potential for a returnee to use a proxy to obtain a relevant document as laid out in SMO at [382-396].

17. Having considered the appropriate course of action, we conclude that a remittal to the First-tier Tribunal is, in the circumstances of this case, appropriate. There needs to be a wholesale consideration of the Appellant’s credibility.

NOTICE OF DECISION

18. We therefore conclude that the making of the decision by the First-tier Tribunal did involve an error on a point of law by reference to s. 12(1) of the Tribunal, Courts and Enforcement Act 2007 and the appeal is therefore allowed.

19. The case is remitted to the First-tier Tribunal.

DIRECTIONS TO THE FIRST-TIER TRIBUNAL

(1) This case is remitted to the First-tier Tribunal (Hatton Cross hearing centre) for a complete re-hearing before a judge other than Judge Sweet;

(2) The First-tier Tribunal shall address every aspect of the Appellant’s protection and human rights claims, including re-documentation;

(3) The First-tier Tribunal will issue any further case management directions it deems appropriate.

Signed Date 31 March 2022

Deputy Judge of the Upper Tribunal Jarvis