Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00019/2017

THE IMMIGRATION ACTS

Heard at the Royal Courts of Justice
Decision & Reasons Promulgated
On 20 March 2017
On 10 April 2017

Before

Upper Tribunal Judge Southern

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Z. A. A.
Respondent

Representation:
For the Appellant: Ms A. Radford of counsel, instructed by Duncan Lewis, solicitors
For the Respondent: Mr T. Wilding, Senior Home Office Presenting Officer

DECISION

1. Z.A.A., who is a citizen of Iraq, claimed asylum on arrival in the United Kingdom in May 2009. His appeal against refusal of that claim was dismissed in August 2009. However, he remained in the United Kingdom and after further submissions made on his behalf were accepted to amount to a fresh claim for the purposes of paragraph 353 of the Immigration Rules, a fresh decision to refuse his claim on asylum and human rights grounds was made on 21 November 2016.

2. His appeal against that refusal came before First-tier Tribunal Judge Baldwin on 24 January 2017. By a decision promulgated on 30 January 2017 the judge allowed the appeal on asylum and human rights grounds.

3. The Secretary of State has been granted permission to appeal against that decision. Although, therefore, the Secretary of State is the appellant before the Upper Tribunal, as it will be necessary to reproduce some extracts from the decision of the First-tier Tribunal, I shall refer to Z.A.A. as the appellant and to the Secretary of State as the respondent. In granting permission to appeal, First-tier Tribunal Judge Bird said:

“The respondent seeks permission to appeal against this decision on the grounds that the judge made an arguable error of law in failing to make a finding on the presence of the appellant’s family in Iraq which is particularly relevant in light of the judge’s finding that the appellant would be vulnerable if returned to Iraq…

It is arguable that the judge’s conclusion that the appellant would be vulnerable does not take into account the possibility that the appellant’s family was in Iraq…”

4. The judge summarised the appellant’s claim as follows:

“The appellant… fears persecution and serious ill-treatment in Iraq on account of his Kurdish ethnicity, and (his) father’s work in the police in Iraq and for the US Forces in 2009. Daesh have his city and his house, and have raped and sold the girls. He cannot be expected to relocate within Mosul as he has no contact with his family since he left Iraq and he would not be able to support himself elsewhere in Iraq.”

The respondent’s case before the judge was summarised as follows:

“Whilst it is accepted that the appellant is an Iraqi Kurd from Mosul, the only new aspect of the appellant’s claim is the rise of Daesh in 2014. It is accepted that he cannot be expected to return to Mosul at this time, but he can be expected to relocate in the IKR where he would not face a well-founded fear of persecution or serious ill-treatment.”

5. One matter that was in issue between the parties was whether or not the appellant was in contact with his family in Iraq. The judge who had dismissed the earlier appeal rejected as untrue the appellant’s account of why his father decided the family should leave Iraq and his account of how the family had done so. The appellant said that he was not in contact with his parents, and produced letters from the Red Cross reporting no progress in attempts to locate his family. However, in those letters the Red Cross made clear that:

“… the fact that a Tracing Request is or is not opened should not be considered as evidence that the sought person is/is not missing…”

And in the most recent letter that:

“… due to the security situation, all cases are on hold in the area of Mosul until the situation improves and access is possible…”

6. At paragraph 24 of his decision the judge made this finding of fact:

“Whilst it is clear that the appellant has looked to the Red Cross for help in tracing his parents, the Red Cross make it clear that the fact that this has been done should not be considered as evidence the sought person is missing. The request does not, I find, add significant weight to the appellant’s claim he became separated from them en route to the UK or that he does not know where they are. Given the generally adverse view I have formed of his credibility, I find his claim in this regard also unproven even to the low standard required.”

7. Having rejected the appellant’s account of having lost contact with his parents, the judge then considered the question of relocation within Iraq, recognising the acceptance by the respondent that the appellant could not be expected to return to Mosul. The judge noted that the appellant lacked documentation that he would require on return to Iraq and recognised the difficulty the appellant would face in securing it. He continued:

“… Whilst he speaks Arabic and a Kurdish dialect, there is no suggestion he has ever had any family or contacts in Baghdad and he has psychiatric problems, cluster migraines and a recurrent anal cyst which requires another operation. Such issues may well not meet the high threshold set for an article 3 medical claim, but they are part of the factual matrix which has to be assessed. He would be considered quite a vulnerable person in the UK and he would, I find, certainly be vulnerable in Iraq where he would be likely to find particular difficult finding work in his condition and with no contacts outside his former home area, one to which it is accepted he cannot possibly return at this time. As a Kurd in Baghdad, he would be part of a minority community and his mental state would clearly not help him to access medical services or survive generally. Into this factual matrix has to be added his return from the West after an absence of nearly 8 years. He would, I find, in all these circumstances be at real risk of kidnapping by those who might well believe there was money in the family given how much it must have cost to get the appellant to the UK… His health issues and Kurdish ethnicity and lack of contacts in Baghdad would present very significant obstacles to his integration in the city. His ability to be able to relocate in IKR would be highly problematic given the need to get there without at present having any travel documents…

… I do not find credible his claim that he became separated from his parents en route to the UK. However, the situation in Iraq has changed dramatically as far as he is concerned, because he cannot possibly be expected to return to Mosul, his home area. For all the reasons which I have set out above I find that this particular appellant would face a well founded fear of persecution and serious ill-treatment were he to be returned to Iraq…”

8. The difficulty with that reasoning is that the judge has made no finding in respect of the appellant’s parents or family, other than to reject the appellant’s claim that he has lost contact with them. As the respondent has pointed out in her grounds for seeking permission to appeal, this was a particularly relevant matter as if the appellant’s family were found to be in Iraq, they would be able to assist the appellant not simply by providing material support to assist with his reintegration on return to Iraq but also in securing the documentation that he currently lacks. Also, as the appellant has said in a witness statement that he lost his documents when he lost his family by getting onto the wrong lorry. That suggests that his documents were held by his father. Therefore, the finding that he has no access to his documents is one that does not sit comfortably with the finding made by the judge rejecting the appellant’s claim to have lost contact with his family.

9. What is required, but is absent from this decision, is a finding of fact as to the likely whereabouts of the appellant’s family and the materiality of any assistance they might be able to render the appellant in the process of re-establishing himself in Iraq. It cannot be assumed that the judge was satisfied that they also had left Iraq because he has not said so. The failure of the judge to engage with and resolve these matters discloses an error at the very core of the findings that lead directly to his decision to allow the appeal. As I cannot be confident that the outcome would have been the same had the judge made these findings, this amounts to a material error of law.

10. The consequence is that the decision of the judge must be set aside. The appeal to the Upper Tribunal succeeds to the extent that the appeal will be remitted to the First-tier Tribunal to be determined afresh.

Summary of decision:

(i) The Judge of the First-tier Tribunal made a material error of law error of law and the decision of the judge to allow the appeal is set aside in its entirety.

(ii) The appeal is remitted to the First-tier Tribunal to be determined afresh.

Signed

Upper Tribunal Judge Southern

Date: 23 March 2017