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IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005635
First-tier Tribunal No: PA/50483/2022
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 28 April 2023
UPPER TRIBUNAL JUDGE O’CALLAGHAN
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(ANONYMITY ORDER MADE)
For the Appellant: Ms A Everett, Senior Presenting Officer
For the Respondent: Ms J Norman, Counsel, instructed by Biscoes Solicitors
Heard at Field House on 21 March 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, AM is granted anonymity.
No-one shall publish or reveal any information, including the name or address of AM, likely to lead members of the public to identify AM. Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
1. The parties are referred to as they were before the First-tier Tribunal: AM is the ‘appellant’, and the Secretary of State for the Home Department is the ‘respondent’.
2. The respondent appeals with permission against a decision of Judge of the First-tier Tribunal Seelhoff (‘the Judge’), sent to the parties on 25 October 2022 allowing the appellant’s appeal on asylum grounds.
3. The Judge issued an anonymity order in respect of the appellant. Neither party requested that the order be set aside. Whilst being mindful of the competing rights protected by article 8 and article 10 ECHR arising in this matter and observing paragraphs 27 and 28 of the Upper Tribunal’s Guidance Note 2022, No. 2 ‘Anonymity Orders and Hearings in Private’, I am satisfied that as the appeal concerns a claim for international protection it is in the interests of justice that the anonymity order continue.
4. The appellant is a national of Iraq, aged 39, and is of Kurdish ethnicity. His wife and their three minor daughters are dependent upon his claim for international protection.
5. The appellant was born in Sulaymaniyah at a time when Iraq was governed by the Ba’athist regime led by Saddam Hussein. The appellant’s father was an officer in the Iraqi army, rising to hold the rank of major by the time he died in 2014. Whilst serving under the Ba’athist regime, his father undertook operations against Kurdish nationalist groups, including the Patriotic Union of Kurdistan (PUK). The appellant asserts that several persons detained by his father were subsequently tortured and killed by the regime, leading to enmity being directed towards his father.
6. The appellant’s family resided in Sulaymaniyah until 1991, at a time when it remained under the control of the Ba’athist regime. Upon the intervention of Allied forces and the implementation of a no-fly zone in March 1991, the Iraqi authorities withdrew from what is now the Kurdish Region of Iraq (KRI), leaving a political vacuum. At this time, the appellant, now aged 7, relocated with his family to Kirkuk, where he resided until 2003.
7. At the age of 19, the appellant left Kirkuk after the Iraqi government lost control of the city to the Peshmerga, the KRI’s military forces, and relocated to Tuz Khurmatu, situated in Salah Al-Din Governorate. This city, also known as ‘Duz Khurmatu’ or ‘Duz’, is situated in Tooz District in the northeast of the Governorate. The majority of the population are Turkmen, with Arab and Kurdish minorities.
8. Relevant to this appeal, the city has not been a part of the KRI, though it is situated in an area of dispute between the Iraqi federal government and the KRI. The city has at times experienced ethnic and political tension, including armed clashes, between Kurdish Peshmerga forces loyal to the PUK, and Iraqi government forces, the latter supported by the Popular Mobilisation Forces (PMF), an Iraqi state-sponsored umbrella organization composed of over sixty different armed factions, primarily Shi’a in composition, which is presently led by Falih Al-Fayyadh, a former head and advisor of the National Security Council. The Peshmerga withdrew from their areas of control within the city in October 2017 to be replaced by the Iraqi federal government and the PMF. There has been recent cooperation in the region between the Iraqi military and the Peshmerga consequent to joint operations against Islamic State forces.
9. The appellant states that upon arriving in Tuz Khurmatu, he resided in the suburb of Jamouri, which he identifies as a ‘Kurdish’ area controlled by the PUK and the Peshmerga. There is no clarity in the appellant’s substantive interview of October 2021 and his witness statements as to whom he lived with in the city, though in his witness statement of May 2019 he ambiguously refers to ‘we were living’.
10. In 2014, the appellant’s father was killed during fighting between the Brigade which he commanded and the Kurdish Peshmerga. At his substantive interview conducted by the respondent on 21 October 2021, the appellant acknowledged at Q39:
‘… It was a military conflict when my father died yes you see I want to make one thing clear my father’s killing was not a result of the tribal issue/blood feud but needless to say they would be happy to hear he had been killed as today it would be like killing two birds with one stone.’
11. There is an unresolved tension in the evidence, not addressed by the Judge, as to how the appellant, possibly with his parents and brother, was content to reside in an area of Tuz Khurmatu controlled by the Peshmerga and the PUK up until his father’s death when, on his evidence, his father was a target for these related groups because of his actions against Kurdish nationalists under the Ba’athist regime. He explained at paragraph 15 of his witness statement of May 2019 that consequent to the emergence of Islamic State within Iraq, in 2014, the area he resided in was controlled by the Peshmerga and PUK. He further detailed at paragraph 17 that he moved to the Shi’a suburb of Alemam Ahmad because of his fears that the Peshmerga and PUK would come after him and his family. Alternatively, he stated at Q54 of his substantive interview that Tuz Khurmatu had been administered between the Peshmerga and the Iraqi government since the fall of the Ba’athist regime, in 2003. He was clear in his substantive interview at Q47 and Q48 that his family were required to leave both Sulaymaniyah and Kirkuk when Iraqi government control ended, and the cities were taken over by Kurdish political groups, consequent to his father being in the Iraqi military. Further, he was clear in both his witness statement of June 2022 and his substantive interview that he believes the Peshmerga and PUK held an animus towards his father because of the deaths of Kurdish nationalists following his actions to arrest them. At Q27 of his substantive interview he confirmed that his father re-joined the Iraqi military in 2007, having been expelled in 2004. No explanation was provided in writing, or recorded as being addressed at the hearing, as to why the appellant, and possibly his close family, would be content to reside in a suburb under the control of the Peshmerga and the PUK when the appellant’s father had previously been and then returned to be a serving officer in the Iraqi military, when the Iraqi federal government controlled other areas in the city. Nor is there any clarity as to whether he resided with his parents in Tuz Khurmatu, or whether he lived for some or all the period apart from his father.
12. Following his father’s death, the appellant and his younger brother relocated within Tuz Khurmatu to reside in a Shi’a majority area called Aleman Ahmad. Whilst living in this suburb, the brothers ran a mini supermarket. Following the takeover of the entire city by the Iraqi federal government in October 2017, the PMF approached the brothers demanding that they either join or pay protection money. A decision was made by the brothers to pay protection money in the sum of 1.5 million dinar. Subsequently, a further 3 million dinar was paid on demand.
13. In September 2018, the appellant’s brother was kidnapped, and his body was found two days later with visible torture marks. The appellant was fearful and, accompanied by his pregnant wife and their oldest child, left Tuz Khurmatu and travelled to a maternal aunt residing in Laylan, situated close to Kirkuk. The appellant met with his mother and sister at his aunt’s home. A maternal uncle also resides in Kirkuk.
14. The appellant states that the family home in Tuz Khurmatu was subsequently burnt down by members of the PMF.
15. The appellant, his wife and their eldest child travelled to the United Kingdom via Turkey and France, arriving in December 2018. Their second child was born en route in France. The youngest child was born in the United Kingdom.
Grounds of Appeal
16. The respondent’s grounds of appeal can properly be identified as raising seven challenges:
(i) The First-tier Tribunal drew wrong conclusions in respect of the appellant’s actual claim:
In his interview the appellant expressly stated that his father’s death was not a result of his past work concerning the PUK/Peshmerga in respect of a blood feud. He was killed during military conflict.
(ii) The First-tier Tribunal failed to adequately consider sufficiency of protection
(iii) The First-tier Tribunal failed to adequately consider internal relocation
(iv) It is unclear what evidence could establish a real risk of persecution flowing from his father’s involvement with the Ba’athist regime:
Only those military officers of high rank are at risk.
(v) The First-tier Tribunal’s conclusion that the appellant would be known or targeted in his home area lacked adequate reasoning:
There was no evidence that the PMF have issued a summons for the appellant since he left, or why he would be recruited as he is a Kurd and Sunni, whereas the PMF is predominantly Arab and Shi’a.
(vi) The appellant relied upon a CPIN in relation to female genital mutilation (FGM) that was withdrawn the day before the hearing.
(vii) The First-tier Tribunal failed to identify from whom the blood feud risk flowed, or even whether there was a real risk of a blood feud.
17. By a decision dated 26 November 2022, Judge of the First-tier Tribunal Boyes granted the respondent permission to appeal reasoning, inter alia:
‘3. Having considered the grounds and the judgment, permission is granted. The grounds are arguable for the reasons given in the application. The Judge seemingly relies upon a COI which is no longer credible and has been withdrawn and having considered the matters in relation to the appellant’s father, there is, arguably, a failure to crystallise the appellant’s claims into accepted facts and, arguably, a failure therefrom to establish this (sic) a correct platform from which to assess risk.’
18. Underpinning the respondent’s appeal is the approach adopted by the Judge to his Decision and Reasons. This Tribunal identifies from the outset its concern as to the approach adopted by the Judge in addressing the underlying facts, in addition to a failure to adopt an adequate structure in respect of the basic task arising in an international protection appeal of identifying from whom the risk of persecution is said to flow, whether it is well-founded, and if so whether there is an availability of effective, sufficient State protection and/or internal relocation.
19. In this matter the approach to be adopted in respect of the international protection appeal would have been to (1) clearly identify where the appellant’s well-founded fear of persecution arose before leaving Iraq, namely Tuz Kurmatu in Salah Al-Din Governorate, an area controlled by the Iraqi federal government; (2) the instigators of the persecution, the PMF; (3) sufficiency of protection; (4) whether internal relocation within Iraqi federal government controlled territory would be unduly harsh; and (5) whether internal relocation to KRI would be unduly harsh. In respect of (5) consideration as to persecution may arise. In respect of (4) and (5) the issues of FGM may arise and access to a Civil Status ID Card (CSID) or biometric Iraqi National Identity Card (INID) may arise.
20. I have sympathy for the Judge who was required to consider a decision from the respondent, dated 31 January 2022, that addressed personal events chronologically and did not clearly identify the appellant’s primary fears as to persecution. He was also not sufficiently aided by the appellant’s skeleton argument, which appears to have also adopted a chronological approach to the appellant’s history, adopted in seeking to address the respondent’s decision letter, and failed to clearly identify the appellant’s case as to persecution. This is identifiable in terms of the submission as to risk where reference is made at paragraph 12(a) to the appellant be at risk if he ‘returns’ to the KRI, when it is not the appellant’s case that he resided in the KRI. At paragraph 12(b) reference is made to the appellant having a well-founded fear of persecution in the ‘Shi’a-controlled side of Tuz, though at the time the appellant left the city in Tuz it was wholly administered by the Iraqi federal government with the support of the PRF. Reliance upon a lack of access to a CSID was then relied upon. A further error is identifiable at para. 1 of the skeleton argument where it is incorrectly asserted that the appellant’s father was killed by Kurdish forces ‘in a revenge attack, as he had been a military officer and had previously arrested members of that force.’ This has consistently not been the appellant’s evidence during his claim. However, the Judge should have been aware that a skeleton argument is not evidence, and he was required to consider the evidence.
21. The approach adopted by the Judge in this matter has had the unfortunate consequence of requiring this Tribunal to expend valuable judicial time and resources seeking to establish the parties’ cases as advanced before the First-tier Tribunal.
22. It is appropriate to record Ms Everett’s careful oral submission that:
“The amount of untangling this decision has required is a valid criticism. If it requires this much untangling, there is a cogent reason for the respondent’s concern. Having to poke and prod this much has led to the loser not understanding why they have lost.”
23. The Judge’s decision on an international protection appeal runs to fifty-one paragraphs over nine pages. Reasoning is addressed within twenty paragraphs that cover three pages.
24. Short decisions are to be encouraged, when undertaken with care. However, brevity is properly to be accompanied by clarity. The Court of Appeal held in Simetra Global Assets Ltd v. Ikon Finance Ltd  EWCA Civ 1413, at , that it is unnecessary for a judge to deal expressly with every point advanced, but enough must be said to show that care has been taken and that the evidence has been properly considered. The exercise of care can best be demonstrated by using the building blocks of the reasoned judicial process: by identifying the issues to be decided, marshalling the evidence which bears on these issues, and giving reasons why the principally relevant evidence is either accepted or rejected.
25. Sufficient reasons must be provided. A classic statement of the principle is that of Lord Phillips MR in English v. Emery Reimbold & Strick Ltd  EWCA Civ 605,  1 WLR 2409, at . The issues of resolution vital to a Judge’s conclusion should be identified, and the manner of resolution explained. This does not require a lengthy judgment, but it does require a judge to identify and record those matters critical to their judgment.
26. The general principle that fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost was affirmed by the Court of Appeal in Flannery v. Halifax Estate Agencies Ltd  1 WLR 377 with Henry LJ observing that ‘a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.’
27. Therefore, whilst short decisions will often be appropriate for many appeals in this jurisdiction, and an individual judge can properly adopt their own way of setting out their decision and reasons, good structure and a logical explanation of the whole will be the expected foundation of a lawful, reasoned decision.
28. For the reasons addressed below, both Ms. Everett and Ms. Norman considered the approach adopted by the Judge to be of concerning. Both confirmed that the Judge had failed to adequately identify elements of the appellant’s personal history as identified within his various interviews and statements. The parties differed as to the consequence of the identified concerns: the respondent asserted that they amounted to a material error of law, the appellant submitted that though clear errors of law were identifiable, they were not material. Ultimately, the parties agreed that the primary issue in the appeal before this Tribunal was the Judge’s consideration of internal relocation.
Structure and content of the Judge’s decision
29. Consequent to the concerns detailed above, it is appropriate to address the content and structure of the Judge’s decision before proceeding to consider the respondent’s grounds of challenge.
30. The Judge set out the core of the appeal before him at  and  of his decision. He identifies that the appellant ‘claims to have left the Kurdish regions in 2014’. Care has to be used when referencing ‘Kurdish regions’ which is regularly used as a general term for contiguous areas of northern Iraq, south-eastern Turkey, north-western Iran and northern Syria that have significant Kurdish populations. Though located in territory disputed by the Iraqi federal and KRI governments, Tuz Khurmatu is a majority Turkmen city.
31. It is unfortunate that the Judge uses multiple terms that could mean the same thing, but are individually capable of a separate meaning: ‘the Kurdish regions’, at ,  and , ‘the Kurdish controlled regions’, at , ‘the Kurdish region of Iraq’, at , ‘the Kurdish region’, at , ‘the Kurdish areas of Iraq’, at , and the ‘Kurdish control areas’, at . The lack of precision in respect of an issue of some importance in this appeal is of concern.
32. However, upon reading the decision in the round, I am satisfied that it is tolerably clear that when referencing most of the terms above the Judge is referring to the KRI. The one term which I consider is wider in the context of where it is referenced in the decision, at , is that of ‘Kurdish control areas’ which is suggestive of the wider area of land controlled by the KRI including that in the disputed areas.
33. Tuz Khurmatu, a city of 100,000 people, has never been recognised as a part of the KRI. Areas of the city were, up until October 2017, administered by the PUK supported by Peshmerga loyal to the party, with the KRI government asserting that Tuz Khurmatu, and other land to be found in several governorates, were part of Iraqi Kurdistan.
34. The Judge erroneously identified the appellant has having left the ‘Kurdish regions’, or the KRI, in 2014; the appellant having consistently stated that he left the area that subsequently became the KRI in 1991. The error of fact is repeated regularly throughout the decision. The Judge further anchors the act of ‘leaving’ the Kurdish regions with the death of the appellant’s father in 2014, though at this time the appellant had resided in Tuz Khurmatu for over a decade.
35. The Judge turned to the chronology of the case before him at  to . Before addressing this element of the decision, it is plain from reading the decision that the Judge adopts the somewhat unusual, and very concerning, approach in an Iraqi international protection appeal of not taking steps to clearly identify the town, city or region where the alleged persecution arises. Save for referencing the appellant’s home city as ‘Duzz’, the Judge fails to identify with the required clarity that he is considering a fear of persecution arising in both Tuz Khurmatu, and the wider Salah Al-Din Governorate. At times, it is unclear whether the Judge’s attention is properly focused upon the appellant’s primary fear of persecution arising in an area of Iraq controlled by the Iraqi federal government.
36. The respondent’s reason for refusal decision is addressed from  to  of the decision, as are issues of law at  to . Various documents are identified at -. The appellant’s evidence at the hearing and subsequent submissions are detailed at  - .
37. The Judge commenced his reasoning at  by confirming that he found the appellant to be a truthful witness ‘for all of the reasons that follow’. I observe that the Judge’s reasoning thereafter is limited, with repeated failure to explain why the respondent’s challenge to credibility on core elements of the appellant’s claim was unsuccessful.
38. The Judge proceeded to give reasons as to why he accepted the appellant’s account before him as to existing evidential discrepancies in relation to whether his father served in the military or the police, at , his final military rank, at , as well as whether the appellant owned a business in Tuz Khurmatu or was an employee, at .
39. Concern arises at  in respect of the Judge’s reasoning as to the death of the appellant’s father, when he expressly accepts that ‘as a major the father would have been a particular target as officers are always a target in conflict’. Whilst this follows the reference in paragraph 2 of the appellant’s skeleton argument, Ms. Norman accepted before me that the appellant’s case was consistent as to his father not being personally targeted on the day he died; he was a casualty of fighting between his Brigade and the Peshmerga, as confirmed at Q39 of his interview.
40. Up to this point in his reasoning the Judge focused on the appellant’s concern in relation to the PUK. Whilst this is an internal relocation issue, the PUK not being in control or targeting perceived opponents in Tuz Khurmatu, I accept Ms. Norman’s observation that the Judge was addressing matters in a chronological order. However, it was incumbent upon the Judge to be clear in his decision as to whether his findings of fact related to his substantive consideration as to the existence of a well-founded fear of persecution in Tuz Khurmatu, or to an internal relocation alternative.
41. The Judge proceeded to consider the appellant’s account of his interaction with the PMF at -:
‘37. I accept the reason that the Appellant is unable to explain exactly who was targeting him to join the PUK (sic) through the local Mokhtar because the approaches were deliberately ambiguous and were from people who were carefully hiding the full details of their own roles and activities. I do not find that this is so implausible as to undermine the claim.
38. I accept that the Appellant’s (sic) did not say that he had no problems between the initial approach from the Mokhtar and September 2018 because he did say quite clearly in interview that the Mokhtar would discuss the issues whenever he came to buy things in the shop.’
42. These two paragraphs, running to eight lines in total, comprise the entirety of the express reasoning in respect of the appellant’s primary fear of persecution at the hands of the PMF. No reasoning is given to the acceptance of the appellant’s stated history of being targeted by the PMF, and the death of his brother, despite such events not being accepted by the respondent.
43. Attention then diverts to the appellant’s account as to why he is not presently in contact with family members, at .
44. The appellant’s failure to claim asylum en route to the United Kingdom was addressed at  with the Judge considering the fact that the appellant’s heavily pregnant wife travelled to the United Kingdom as a positive factor when assessing credibility.
45. The Judge then found:
‘41. It follows from above that I have accepted that it was not safe for the Appellant to remain living in the Kurdish Region of Iraq because of his father’s past collaboration with the regime of Saddam Hussein. I accept that they had to leave the Kurdish region as a consequence of his father’s activities once his father had died. SMO confirms that there is a risk to those who are perceived to be opposed to local security actors which the Appellant would be as the son of a senior official under the military previously.’
46. The first two sentences of  are founded upon a failure to adequately identify the appellant’s personal history. The final sentence fails to engage with the appellant’s identified fear of the PMF in Tuz Khurmatu, who are allied with the Iraqi military. This paragraph strongly suggests that the Judge considered the appellant’s fear of persecution to arise within the KRI, an area that he has never resided in. On the appellant’s case, neither the PMF nor the Iraqi authorities are targeting him because of his father’s military position within the Iraqi military. Further, no reasoning is provided as to why the rank of ‘major’, the lowest field-grade rank, establishes the father as being a senior official whose children would be targeted because he held such rank. It may be the case in this matter, but such conclusion should be reasoned.
47. Next, at , the Judge found:
‘42. I accept that the region they moved to proved to be unsafe for them as is entirely consistent with the background evidence on Iraq and the most recent guidance country guidance case of SMO and KSP (Civil Status documentation; article 15) Iraq CG  UKUT 00110 (IAC). I accept that once it was no longer safe for the family to stay in Duzz then it was not an option for them to safely return to the Kurdish areas of Iraq given their past problems there.’
48. Again, the same error of fact arises as to the Judge’s continued failure to appreciate the appellant’s personal history relating to his long residence in Tuz Khurmutu. The reference to the country guidance decision of SMO is not explained in respect of the asserted difficulties with the PMF within a suburb of Tuz Khurmatu, or the wider environs of the city and governorate. There is no identification as to the control or presence the PMF exerts in Salah Al-Din Governorate, or in the rest of Iraqi federal government-controlled territory. The Judge’s focus reverts to the KRI.
49. A finding is made at  that the appellant has no paternal relatives able to support his integration elsewhere in Iraq. At  the Judge finds that ‘they are also a family who may well be perceived as having collaborated with Saddam Hussein’s regime’, though no explanation is given as to why this is relevant in respect of internal relocation within the area of Iraq controlled by the Iraqi federal government when the appellant’s father had been a major in the Iraqi military at the time of his death in 2014.
50. The Judge turned to the issue of FGM and the appellant’s three daughters, from  to  and then addressed the lack of a CSID, at .
51. The Judge concluded, at :
‘51. Assessing the evidence in the round I accept that there is a risk from the authorities due to the Appellant’s father’s past activities. I accept that it was not safe for them (sic) to move to the region of Duzz as has been demonstrated by their (sic) experiences. I find that there is not sufficiency of protection available from the authorities in any region who are likely to target him on account of his father’s past activities and his Kurdish ethnicity. I find that internal relocation is not a feasible option for all of the reason outlined above and as a result I find the appeal ought to be allowed on asylum grounds.’
52. The lack of care identified above flows into this concluding paragraph. The appellant’s case as to why he fled Iraq in 2018 is founded upon his fear of the PMF, from whom he believes he will not receive adequate protection from the Iraqi authorities. As his father was an officer in the Iraqi military, the appellant does not assert a fear of the Iraqi federal authorities consequent to his paternal heritage or his ethnicity. There is no ‘region’ called ‘Duzz’ to which he moved.
53. A judge can properly identify his conclusion as to credibility at the beginning of his reasoning. However, whilst a judge does not have to identify and explain every factor they weigh in their appraisal of the evidence, they are required to identify the vital issues and explain how they resolved them. The Judge confirms at  that he will explain why he considers the appellant credible ‘for all the reasons that follow’, but clear reasoning as to resolving dispute between the parties is limited to certain, ultimately peripheral, issues. The Judge fails to give any reasoning at all on several core elements of the appellant’s claim, such as his targeting by the PMF, his brother’s death and whether his father was responsible for the detention of Kurdish nationalists who were subsequently tortured and killed.
54. Despite the manifest failings identified above, I confirmed at the hearing that the respondent’s appeal was dismissed. The respondent accepted that by her grounds of appeal she advanced no cogent challenge to the Judge’s conclusion that the appellant possessed a well-founded fear of persecution of a state agent, the PMF, in Tuz Khurmatu. Such confirmation is an express acceptance that the appellant is credible as to being persecuted by the PMF in his home area. I confirmed orally that the Judge erred in law in respect of his consideration of internal relocation (1) to Kirkuk, (2) to the KRI and (3) on FGM grounds. However, I concluded that the errors were not material because the fourth strand of the relevant internal relocation finding, concerned with the appellant’s inability to secure a CSID document, was not challenged by the respondent on appeal.
55. I note two concessions made by the representatives before me. Ms Everett accepted on behalf of the respondent that the sole challenge to the finding that the appellant possessed a well-founded fear of persecution at the hands of the PMF in Tuz Khurmatu was advanced by the first sentence of  of the grounds of appeal, asserting that there was no evidence of a summons having been issued for him. She further accepted that this single sentence of the grounds was not capable of being read as a challenge to the Judge’s finding of fact that the appellant and his brother were targeted by PMF, that the appellant’s brother was killed by the PMF and that the PMF were seeking the appellant. Whilst the Judge’s reasoning was brief (at best) in respect of the appellant’s fear of the PMF, which appears to have been relegated as a subsidiary consideration to the Judge’s erroneous understanding as to the appellant’s (non-) residence in the KRI, it was properly accepted by the respondent before me that the appellant possesses a well-founded fear of persecution at the hands of the PMF, a state agent armed group working with the Iraqi authorities, in Tuz Khurmatu.
56. Ms Norman accepted the merits of the respondent’s complaint that the Judge had erred in law by failing to adequately identify the appellant’s case as to how his father died, erroneously identifying it as having occurred consequent to his being specifically targeted. It was accepted, as addressed above, that it was the appellant’s express case, as detailed at Q39 of his interview, that his father had been killed during fighting, and not as a result of being specifically targeted for previous acts conducted against the Peshmerga and the PUK. Having made the concession, Ms. Norman confirmed the appellant’s position that whilst such failing established an error of law, it was not material.
57. Both representatives accepted that the chronology of events prepared by the Judge contained errors, particularly as to the appellant and his family leaving the KRI in 2014 following the death of his father. Both identified the evidence filed with the First-tier Tribunal as being clear and consistent as to the appellant’s father serving in the Iraqi military and the family having never resided in the KRI.
Fear of persecution - PMF
58. The decision is undermined by conflation, and attendant inadequate focus upon key issues such as from whom the appellant fears persecution and why. It appears to this Tribunal that the Judge considered the primary agent of persecution to be the PUK, with very limited attention being given to the PMF. Whilst this error may flow from the structure of the respondent’s decision letter and the appellant’s skeleton argument, the Judge was required to identify from whom the well-founded fear of persecution flowed. At the very least, there was a failure to coherently identify where the appellant resided whilst in Iraq. There is no clear identification of Tuz Khurmatu as being the city where he resided at the relevant time, nor as to which part of the country the city was situated in. That the Judge identified the appellant as living in the non-existent ‘region’ of ‘Duzz’ exemplifies the lack of care that flows through this decision.
59. The appellant’s fear of persecution in Tuz Khurmatu is directed towards the PMF. It is unfortunate that the Judge appears confused as to who was targeting the appellant in the city, observing at  that the appellant was being ‘targeted to join the PUK through the local Mukhtar’, whereas the appellant’s case was that he was being targeted to join the PMF.
60. However, as Ms Everett accepted, and I consider that she was correct to do so, the Judge accepted, though without any express reasoning, the appellant’s evidence as to his brother being killed in Tuz Khurmatu by the PMF and that this organisation sought him. Whilst there may potentially have been a meritorious challenge to this conclusion on the ground of inadequate reasoning, the challenge at paragraph 4 of the grounds of appeal was advanced narrowly on a specific issue:
‘4. It is submitted that the FTTJ has erred in finding that the appellant would be known or targeted in his home area, there is no evidence the PMF have, for example, issued a summons for him since he left or why he in particular would be recruited, especially as he is Kurdish and Sunni whereas the PMF are predominantly Arab and Shi’a.’
61. As noted above, Ms. Everett properly accepted that the scope of this challenge did not extend as far as the Judge’s finding that the appellant was credible as to his having to pay protection money to the PMF, his brother being kidnapped and murdered by the PMF, the family home being burnt down by the PMF and members of the organisation were searching for him. Ms. Everett acknowledged the well-established principle that the respondent cannot rely upon a ‘Robinson obvious’ point to remedy a defect in her grounds of appeal: AZ (error of law: jurisdiction; PTA practice) Iran  UKUT 245 (IAC),  Imm. A.R. 1418. It was on such basis that the respondent accepted before this Tribunal that the appellant possesses a well-founded fear of persecution in Tuz Khurmatu at the hands of the PMF.
Sufficiency of protection
62. With the identified persecution originating from a state agent of persecution, the PMF, the Judge was required to consider whether there was sufficiency of protection available from the Iraqi authorities. The Judge did not turn his attention to the guidance provided by the House of Lords in Horavth v. Secretary of State for the Home Department  1 A.C. 489. Rather, the sole engagement with sufficiency of protection is founded upon an erroneous identification of fact at , ‘I find that there is not sufficiency of protection available from the authorities in any region who are likely to target him on account of his father’s past activities and his Kurdish ethnicity.’ Again, it is observed that the Iraqi federal authorities, and the PMF, were not targeting the appellant because of his father’s involvement with the Iraqi military, and it is not his case that the Iraqi federal authorities would withhold protection simply because he is a Kurd. The Judge was required to consider the ability of the Iraqi federal authorities to provide effective protection to the appellant from the PMF. Whilst this Tribunal considers that a lack of sufficient protection could well be established on the face of the documents filed, the Judge’s finding is unsustainable for lack of adequate reasoning. Ultimately, such error is not material because of the Judge’s finding in respect of the CSID issue which is addressed below.
Internal relocation - KRI
63. The Judge erroneously concluded at  that the appellant left the KRI for safety reasons ‘because of his father’s past collaboration with the regime of Saddam Hussein. I accept that they (sic) had to leave the Kurdish region because of his father’s activities once the father had died.’ Whilst again observing the basic failure to identify the relevant chronology arising in this appeal and to correctly note the appellant’s own case, no reasoning is given as to why the father’s involvement with the Iraqi military during the Ba’athist regime is of any relevance at the present time. The Judge fails to engage with the tension in the appellant’s evidence in respect of his living under the Peshmerga and the PUK, possibly for several years, and his fears of the same organisations consequent to his father’s military history.
64. Both the appellant and respondent agreed that the consideration of internal relocation to the KRI lacked adequate reasoning, being founded, in part, upon inadequate care being given to identifying the appellant’s stated history.
65. The consideration of internal relocation to the KRI is unlawful for inadequate reasoning. However, because of the reason detailed below in respect of the Judge’s CSID consideration, the error was not material.
Internal relocation – Kirkuk
66. Though recording that the appellant had travelled to Kirkuk with his family upon leaving Tuz Khurmatu and had briefly stayed with relatives before moving on to Turkey, this element of the appellant’s personal history was overlooked in the Judge’s reasoning when considering internal relocation.
67. The appellant asserts that he could not internally relocate because family members in Kirkuk were targeted by the PMF. The Judge is entirely silent as to whether the appellant’s account is accepted, save for a general finding at  that he found the appellant’s account to be credible. No reasoning was provided as to why it was accepted that the targeting of the appellant and his brother in Tuz Khurmatu would result in their extended family being targeted eighty kilometres away in Kirkuk, a city of over 1 million people situated in Kirkuk Governorate. It is noted that the lack of reasoning arises in circumstances where the respondent did not accept the appellant’s evidence.
68. On this matter, I find that the respondent has established her complaint that the Judge erred in law as to his reasoning in respect of relocation to Kirkuk, but for the reason detailed below in respect of the CSID consideration, the error was not material.
Internal relocation - FGM
69. The Judge found at  to  that whilst the appellant and his wife would have some ability to protect their three female children from FGM, ‘it would be much harder for them to resist if they were heavily dependent on tribal and familial support networks as they would be if they had to relocate elsewhere in Iraq.’ No explanation is provided as to this reasoning.
70. The Judge expressly relied upon a passage of an unnamed ‘report’ - no paragraph number is detailed - issued by the respondent – understood to be the respondent’s CPIN ‘Iraq: Female Genital Mutilation (FGM)’ Version 2.0 (February 2020) - addressing the tradition of FGM in Iraqi Kurdistan. He observed that the respondent had withdrawn the CPIN prior to the hearing. No reasoning is given as to why the document was relied upon in circumstances where the respondent withdrew reliance upon it, nor was there any identification of the weight properly to be given to the document.
71. Further, there is no engagement at all with the basis of the appellant’s concern, namely that his wife’s family wished for the procedure to be undertaken. There is no identification by the Judge as to where the wife’s family reside. I sought clarification from Ms. Norman at the hearing and was informed that they reside outside Tuz Khurmatu. Nor was there any engagement as to how the appellant’s in-laws could enforce FGM if the appellant and his family resided elsewhere, for example close to the appellant’s family in Kirkuk.
72. In paragraphs  and , the Judge’s attention is entirely focused upon FGM undertaken in what is variously described as ‘Kurdish control areas’ and ‘Iraqi Kurdistan’, the latter identifying the Kurdish-populated part of northern Iraq and is greater in territory than the KRI. Concerningly, whilst addressing evidence concerned with Iraqi Kurdistan, the Judge states ‘in the Appellant’s home region for example, the Respondent (sic) policy reports that 56% of women reported in 2019 that they had been subject to the procedure.’ It is impossible for this Tribunal to identify the ‘home region’ the Judge references and has been observed above Tuz Khurmatu is not a majority Kurdish area.
73. The Judge concludes as to FGM and internal relocation at :
“48. I do note that the children themselves are not Appellants before me and so I am not in a position to consider whether a risk of FGM would make them Refugees in their own right but it is highly relevant to the question of whether the family could be expected to relocate within Iraq relying on the Kurdish diaspora.”
74. Ms Norman asked me to find that the last words of that paragraph identify the Judge as having looked at the risk of FGM throughout Iraq. I conclude that such reading is not reasonably possible. The focus of the previous paragraphs is upon the situation in ‘Iraqi Kurdistan’ and does not support the general finding made in the last sentence of , particularly when no express consideration is given to either the position of the appellant’s family in Kirkuk to FGM, or as to how the family of the appellant’s wife could ensure that FGM is undertaken. The Judge identified no cogent evidence as to the prevalence, or otherwise, of FGM in Kurdish areas governed by the Iraqi federal government.
75. In respect of this matter, I find that the respondent has established her complaint that the Judge erred in law as to his reasoning in respect of FGM and internal relocation, but for the reason detailed below in respect of the CSID consideration, the error was not material.
Internal relocation – CSID
76. Turning to the issue of the appellant’s ability to secure a CSID, the Judge observed the recent country guidance decision of SMO and KSP (Civil status documentation: article 15) Iraq CG  UKUT 00110 (IAC).
77. The Judge found as a fact at  that the appellant has limited family support left available to him in Iraq, having one maternal uncle and no relatives on his paternal side. He further found as a fact that the appellant has no siblings elsewhere in Iraq who could help him integrate.
78. The Judge concluded as to the ability of the appellant to secure a CSID, at :
‘49. Because I have found the Appellant’s claim to be credible, I also accept that he no longer has the CSID document. In reliance on SMO I accept that it would require male relatives on the male side to be able to assist them (sic) in securing documentation before they (sic) returned to the country. I accept that there are no suitable male relatives on the father’s side who would be able to assist them (sic) in obtaining documents from the UK. Without documents return would be extremely difficult if not impossible and travel within Iraq would not be feasible.’
79. Ms Everett appropriately observed that there was no challenge in the respondent’s grounds of appeal to the conclusion reached by the Judge that the appellant could not secure a CSID document and would therefore not be able to travel from Baghdad to any other part of the country, including the KRI. She stated that whilst not being able to advance a new ground of appeal the issue as to CSID is one that is not without nuance. I was asked to find that consequent to SMO the appellant and his family could reside in Baghdad.
80. I appreciate Ms Everett’s candour that this was not a ground raised in the respondent’s grounds of appeal and accept that her argument was advanced as being contingent on the errors of law already identified.
81. I am satisfied that Ms. Everett sought to raise an impermissible new ground of appeal. In any event, if permission had been granted on this ground, it would have been dismissed. The Judge have cogent, lawful reasons for concluding at  that the relocation to Baghdad would be unreasonable, or unduly harsh, because of a lack of support to aid his integration. I observe that the Judge expressly referenced paragraph 25 of the headnote of SMO:
‘Relocation to Baghdad is likely to be reasonable for Arab Shia and Sunni single, able-bodied men and married couples of working age without children and without specific vulnerabilities. Other individuals are likely to require external support, i.e., a support network of members of his or her family, extended family or tribe, who are willing and able to provide genuine support.’
82. As there was no challenge within the grounds of appeal to the clear finding of fact made by the Judge in respect of his inability to secure a CSID, I conclude that in respect of arrival in Baghdad, residence in the city and the ability to leave the capital and move elsewhere in Iraq without a CSID, coupled with the Judge’s conclusion that the family could not reside in the capital because of an absence of any network of family members able and willing to provide them with effective support, means that the multiple errors of law identified in respect of the Judge’s internal relocation consideration addressed above are not material.
83. It therefore follows that the Judge lawfully found as a fact that the appellant possesses a well-founded fear of persecution in Tuz Khurmatu. The sole lawful reason for the appellant not being able to internally relocate is his inability to secure a CSID upon return to Baghdad. All other findings of fact made as to internal relocation are properly to be identified as errors of law but are not material and so do not require the decision of the Judge to be set aside.
84. It is unfortunate that three pages of reasoning issued by the First-tier Tribunal has resulted in Upper Tribunal requiring seventeen pages to address the multiplicity of errors of law.
Decision and Reasons
85. The decision of the First-tier Tribunal sent to the parties on 25 October 2022, is not subject to a material error of law.
86. The Secretary of State’s appeal is dismissed.
87. The anonymity direction issued by the First-tier Tribunal is confirmed.
Judge of the Upper Tribunal
Immigration and Asylum Chamber
27 March 2023