Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00044/2020

THE IMMIGRATION ACTS

Heard Remotely via Skype for Business
Decision & Reasons Promulgated
On 31 March 2021
On 12 April 2021

Before

UPPER TRIBUNAL JUDGE LANE

Between

MHM
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Johnrose
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a male citizen of Iraq. He appeals to the Upper Tribunal against a decision of the First-tier Tribunal which was promulgated on 2 October 2020.
2. At the Upper Tribunal initial hearing heard remotely on 31 March 2021, Mr Diwnycz, who appeared for the Secretary of State, told me that the appeal was not opposed for the following reasons. First, the judge (apparently following an error initiated at the Case Management Review) wrongly proceeded on the basis that the appellant would be returned to Sulemaniyah and not Baghdad. Mr Diwnycz said that all non-voluntary returns continue to be to Baghdad only. Secondly, the Secretary of State agrees that the judge erred at ([25] - on page 7- there are two paragraphs numbered [25]) by finding that the appellant's claim to have been threatened by relatives of the woman SF could not be accepted without corroborative evidence.
3. I agree that the decision is flawed by legal error for the reasons outlined by Mr Diwnycz. The Case Management Review judge and Judge Drake who conducted the substantive hearing appear to have been misled by representations made by the Presenting Officer regarding non-voluntary returns to Iraq returns but the fact remains that the Tribunal's assessment of risk on return has failed to address the position of the appellant in Baghdad and how he might safely travel onwards to his home area. I also agree that, although he does not say so in terms, it is clear that the judge considered that he could attach little, if any, weight to the uncorroborated 'assertions' of the appellant. That was a error in law. Moreover, it is not obvious how this part of the evidence of the appellant (that he had been threatened by individuals in Iraq) might ever easily be corroborated especially given that the appellant has been living in the United Kingdom since December 2018.
4. In the light of these errors, there will need to be a hearing de novo. That hearing is better conducted before the First-tier Tribunal to which this appeal is now returned for it to remake the decision.
Notice of Decision
The decision of the First-tier Tribunal is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision following a hearing de novo. The parties may adduce fresh evidence provided copies of any documentary evidence (including witness statements) are sent to the other party and to the Upper Tribunal no less than 10 days before the next hearing.
Listing Directions: first available date; First-tier Tribunal to determine whether remote or face to face hearing; Kurdish Sorani interpreter; Not Judge Drake; Manchester or Bradford (whichever offers earlier date); 2 hours.

Signed Date 31 March 2021
Upper Tribunal Judge Lane

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.