Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00062/2015

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
on 26 August 2016
on 1 September 2016

Before

UPPER TRIBUNAL JUDGE HANSON

Between

AW (Iraq)
(Anonymity direction in force)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Wilkins instructed by Barnes Harrild & Dyer
For the Respondent: Mr Bates Home Office Presenting Officer.

ERROR OF LAW FINDING

1. This is an appeal against a decision of Designated First-tier Tribunal Judge McClure ('the Judge') promulgated on the 18 January 2016, following a hearing at Manchester on the 16 October 2015, in which the appellants appeal against the decision to deport him from the United Kingdom, following the refusal of his asylum and human rights claims, was dismissed.
2. On the 25 August 2016 the Upper Tribunal received a letter from the appellant's solicitors, written by Shayela Khan, stating that they intended to serve a supplementary bundle including a new experts report and up to date objective evidence in the region of 180 pages in length. The letter states they had been unable to serve the bundle as a result of problem with their photocopier, scanner and fax machine, all week. A request is therefore made that if an error of law is found the matter is listed at a later date for a substantive hearing to enable the additional evidence to be filed.
3. Whilst it is accepted that office machinery can, at times, be temperamental and break down it appears unfortunate to say the least that this firm found itself in difficulty with all three pieces of equipment at the same time. If what is being said is true the problems are only said to have arisen in the week commencing 22 August 2016. The directions issued by the Resident Judge on the granting of permission to appeal specifically state that parties are required, not later than 21 days after the directions were sent, to file an indexed and paginated bundle containing all the documentary evidence they are intending to rely upon pursuant to rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The directions were sent by first class post on the 30 March 2016. The time period therefore expired on the 20 April 2016. The error of law hearing was initially listed for 11 August 2016 but changed to 26 August 2016.
4. No rule 15(2A) application has been made and, if legal error is found, an application to file the additional evidence out of time shall have to be made. The conduct of the appellant's representatives in relation to this aspect, including a wilful disregard of a direction of the Tribunal is not acceptable. The whole incident is suggestive of a last minute rush to try and get the papers in, having realised the hearing date was imminent, rather than by reference to the directions.
5. The Senior Partner in Barnes, Harrild & Dyer is therefore directed, no later than 14 days from service of this decision upon that firm, to write to the Upper Tribunal explaining how this situation has been permitted to develop, what supervisory arrangements the firm has in place for recording key dates such as those contained in directions, how the same are monitored to ensure compliance, and why in this case the situation set out in the letter of the 25 August 2016 was allowed to develop. Confirmation of the failure of the office equipment is required and why, if this did occur, use was not made of other copy and fax services of which there are many commercial outlets providing the same in Croydon (in addition to other solicitors who may have been willing to assist). The dates of the expert report and additional materials shall also be provided.
6. The date of the immigration decision is after 5 April 2015 and one to which the appeal provisions in force from 10 November 2014 apply. It is not suggested this is an appeal affected by the issues identified by the Upper Tribunal in Nkomo [2016] UKUT 00285. It is also clear that Designated Judge McClure was fully aware of the relevant appeal structure as evidenced by the 'Decision' section of the determination where the conclusions on the protection and human rights issues are set out.

Background
7. The appellant is a national of Iraq born on the 1 January 1980 who claims to be from the Kirkuk area. This was not disputed before the Judge.
8. The appellant was charged with an offence of violent disorder for which he was convicted at Bolton Crown Court on 21 October 2002 and sentenced to three years imprisonment. A detailed chronology is set out at paragraph 3 of the decision under challenge.
9. The respondent attempted to exclude the appellant from the protection of the Refugee Convention on the basis of the commission of a particularly serious crime but the Judge found that the presumption the appellant constituted a danger to society had been rebutted [35]. The respondent has not appealed this element of the decision.
10. In relation to the protection claim the Judge found:

a. That the appellants account is not credible [39].
b. The appellant was 21 or 22 when he left Iraq. It was not found credible that he was unaware of what his father was doing [39].
c. The appellant's assertions with regard to the circumstances in which he came to leave Iraq are not credible [40].
d. At the time the appellant left Iraq it was found he was at no risk of mistreatment from any source [40].
e. There are clearly areas of Iraq which would be safe for the appellant [42].
f. "Whilst the Appellant was reluctant to admit that he had family members, his father although he is dead, did have brothers including at least one uncle. Whilst the Appellant claimed the uncle has a family of his own in the short-term I am satisfied that the uncle could provide some assistance to support the appellant."[42].

11. At paragraphs 43 and 44 the Judge sets out his conclusions in relation to the protection claim in the following terms:
"43. Taking into account the circumstances in Iraq and taking account of the current country guidance case I am satisfied that the Appellant has family members on who he can rely and who would provide him with support and assistance. I am satisfied therefore that the Appellant could return to Iraq without any problems.
44. In the circumstances I find that the Appellant is not entitled to asylum or humanitarian protection."
12. The Judge thereafter consider the human rights claim in which his conclusions are set out at paragraph 50 in the following terms:
"50. As a final matter having considered all the circumstances I am satisfied that the decision is proportionately justified. It has to be noted that the Appellant must have well known that there were deportation orders against him going back to 2005. He must have known that he had no right to remain in the United Kingdom. Taking all those factors into account the fact he then seeks to establish a relationship has to be taken into account. Having considered all those factors I find that the decision to remove the Appellant is proportionately justified."
13. Permission to appeal was sought by the appellant but refused by Designated First-tier Tribunal Judge Peart on the 19 February 2016. The application was renewed to the Upper Tribunal and permission granted by Upper Tribunal Judge Rintoul, on the 24 March 2016, on the basis "It is arguable that Designated Judge McClure erred by failing to take into account the expert report put before him as to the difficulties the appellant would face on return to Iraq". Although it was recognised that the remaining grounds had less merit permission was granted to pursue these aspects of the claim too.
Error of law
14. Before the Upper Tribunal, in relation to Ground 1 which asserts the Judge failed to take into account relevant matters, Miss Wilkins submitted that the appellant's case was that even if Judge McClure had read the expert report he had not incorporated its findings into the decision. As the appeal was heard shortly after the Upper Tribunal handed down its decision in AA(Article 15(c)) Iraq CG [2015] UKUT 000544 (IAC) a supplementary bundle was provided containing a copy of the decision. It is accepted Judge McClure set out the AA factors but it is asserted he failed to examine them in sufficient depth in light of the expert report.
15. It was also submitted Judge McClure failed to consider where the appellants family that he found lived in Iraq will be and that there was no basis for the Judge finding that such family support existed.
16. I find that Judge McClure was aware of both the decision in AA and the expert report and records in his note of the evidence submissions being made in relation to the same. It is not legal error for the Judge not to set out detailed findings on each and every element of an appeal provided a reader of the decision is able to understand the conclusions reached and reasons for the same.
17. The report by Nadje Al-Ali is dated 27 July 2015 which predates the decision in AA which is dated 30 September 2015. It is noted Mr Al-Ali was not the country expert who appeared before the Upper Tribunal in AA. The submissions made on the appellant's behalf fail to address the key issue which is in what way the opinion of Mr Al-Ali differs from that set out in AA. Both the report and case law speak of difficulties that will be faced by returnees. It has not been made out that the Judge was entitled to depart from the findings in AA on the basis of the report. The Judge clearly considered the country conditions and difficulties that will be experienced by returnees through the prism of the findings in AA. No arguable legal error is made out.
18. The appellant was interviewed for his asylum claim. At question 25 of that interview he was asked when he last had contact with his family in Iraq to which he replied "Never since I arrived in the UK" [R's bundle, copy of SEF interview, page 6].
19. The issue of family in Iraq arose during the course of the appellant's oral evidence. Judge McClure's note of the evidence records:

Question
Answer
You are an Iraqi Kurd - any family in Kurdistan
No
Last contact with family in Iraq
It is was moment when I fled
Very young - but 22 when left. How survive without working
Well my dad was providing for me. Until you get married that is the way it is. When get married have own family
When left Iraq what family in Iraq
Mother and sister
Dad
He had been injured and due to injury he passed away
No contact family when left since 2002
Yes
Any contact anyone
No
How enter the UK
When I left my paternal uncle arranged people smugglers for me. I don't know how must paid
What extended family [ref to paternal uncle]
Have no other family. My uncle has his own family. Cause father passed away mother asked uncle to help me.
No answer
My mother didn't have any brothers or sisters.

20. There was sufficient evidence to enable the Judge to find that the appellant has family in Iraq. The appellant has not claimed that all the family are dead, all he states is that he has made no contact with them since he arrived in the UK. His reluctance to admit the existence of family members was noted by the Judge who had the opportunity of seeing and hearing the appellant give evidence. Two issues arise. The first is that Miss Wilkins confirmed there was no evidence before Judge McClure from the Red Cross or any similar organisation confirming they had been unable to trace the appellant's family, at his request. The appellant knew where the family lived as he must have liaised with his mother and paternal uncle before departing. He was a young man in his 20's at that time and not a child. It is also the case that Judge McClure was unable to make further findings in relation to the family as the appellant clearly failed to provide the required additional evidence to enable him to do so.
21. The second issue is that the remainder of the appellant's case has been found, for arguably sustainable reasons, to be a lie. It is noted the grounds of appeal challenge the finding in relation to the ability of the appellant to return to Iraq and relocate internally and not the adverse credibility findings. The Judge was entitled to put little weight upon the appellant's claims in relation to his family in light of the lack of credibility in the claim in general. The Judge clearly considered the evidence made available with the required degree of anxious scrutiny and has given adequate reasons for the findings made. As such the weight to be given to the evidence was a matter for the Judge.
22. The existence of family is a key element of life in Iraq and for a person returning after a period of absence of greater importance, as family are not only able to provide funds and/or accommodation but also to assist with employment and the practical issues faced in day to day life in any community. A person settling within an established family of their own is also not likely to be viewed as a stranger.
23. The Tribunal in AA wrote at length about the contested areas of Iraq in light of the advances made by ISIS who at one point captured Kirkuk. It was not found that the conclusions on the evidence before the Tribunal in AA were wrong but it is necessary to consider the country situation that existed at the date of the hearing.
24. The restriction on those not from the Kurdish Autonomous Area in gaining access to that part of Iraq is not disputed in the decision and nor is the fact that without the correct identity documents the appellant will not be able to return to Iraq as he will not be permitted entry. There was no evidence that he will be unable to obtain such documentation that will enable him to fly to Baghdad and be admitted to the country.
25. If the appellant was to remain in Baghdad the input of the family will be important in providing assistance and the appellant did not claim they were unable to assist. Indeed it was his evidence that his paternal uncle had paid a 'people smuggler' to bring him the UK which ordinarily can cost as much as $5,000US. The Tribunal has judicial notice of the modus operandi of such people which often involves the person being trafficked informing the person responsible for payment that they have arrived safely to enable the balance of the funds to be paid. The fact the uncle was willing to assist in this manner is a clear demonstration of the extent to which family are able and willing to help the appellant. Even if the family are based in Kirkuk this is a city now in the control of the Kurdish Peshmerga and not ISIL and it has not been shown that find cannot be made available from there to assist the appellant.
26. The country material shows that Internally Displaced Persons (IDP) are returning to all 'contested' governorates, including Kirkuk. It was not made out before the Judge that if the family are in Kirkuk that they will be unable to assist the appellant on his return in 2016. The respondent's Operational Guidance Notes (OGN) published in August 2016 show that the situation in all bar two of the 'contested areas' is now such that an automatic grant of humanitarian protection will not be made. This change is based upon the successes by the Iraqi army and Kurdish Peshmerga forces in displacing ISIS from territory they captured in the past and when atrocities arose. Any alleged error is therefore arguably not material, even if made out.
27. No arguable legal error material to the decision to dismiss the appeal on protection issues has been made out in relation to Ground 1. No real risk of persecution for a Convention reason was made out and nor was it shown the appellant faced a credible risk of destitution or treatment sufficient to breach the high threshold of Articles 2 and 3 or is entitled to a grant of Humanitarian protection.
28. Ground 2 asserts a failure to consider the family life of the appellant and best interests of the appellant's child, but such a claim has no arguable merit.
29. The grounds are critical of the Judge for not considering paragraphs 398 or 399. These would require the Judge to consider whether it would be unduly harsh for the appellants 'partner' and child to remain in the UK without him [399 (a)(ii)(b) and 399(b)(iii)]. It is not suggested the 'partner' or child can accompany the appellant to Iraq. This is a family splitting case.
30. Judge McClure did consider the relationship issues and the needs of the child. It was found the child's needs are being met by her mother with whom she lives. The appellant and the child's mother have chosen to live apart "as a result of the benefits system" but there is contact. The difficulty with this ground is that there was little if any evidence before the Judge to show that the impact of the appellant being deported upon the child will be so severe that the child's best interests will become the determinative factor. The child born to Miss H was born on the 12 January 2014 and is still very young.
31. When assessing the issue of whether separation will be unduly harsh the case of MAB [2015] UKUT 00435(IAC), a copy of which is in the First-tier Tribunal papers, is not to be followed. The correct approach is that set out in the court of Appeal decision MM (Uganda) [2016] EWCA Civ 450 in which it was held that the phrase 'unduly harsh' plainly meant the same in section 117C(5) of the 2002 Act as it did in paragraph 399 of the Immigration Rules. It was an ordinary English expression coloured by its context. The context invited emphasis on two factors: first, the public interest in the removal of foreign criminals and, secondly, the need for a proportionate assessment of any interference with Article 8 rights. The public interest factor was expressly vouched by Parliament in section 117C(1). Section 117C(2) provided that the more serious the offence committed, the greater the public interest in deportation. That steered the tribunals and the court towards a proportionate assessment of the criminal's deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it would be to show that the effect on his child or partner would be unduly harsh. Any other approach would dislocate the 'unduly harsh' provisions from their context such that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation. In such a case 'unduly' would be mistaken for 'excessive', which imported a different idea. What was due or undue depended on all the circumstances, not merely the impact on the child or partner in the given case. The expression 'unduly harsh' in section 117C(5) and paragraph 399(a) and (b) required consideration of all the circumstances, including the criminal's immigration and criminal history. MAB was wrongly decided (paras 22 - 26).
32. On the basis of the limited evidence made available on this issue it has not been established that the appellants removal will result in unduly harsh consequences for the appellants 'partner' or child. It has not been shown the appellant is able to succeed under the Immigration Rules.
33. The Judge considered Article 8 ECHR and found any interference with a protected rights relied upon to be proportionate. In relation to the child the Judge found at paragraph 48:
"48. Whilst the Appellant has a limited family life with the mother of his child it is not so close at that moment that they are living together or they appear to have made plans to marry. He has an involvement with his chid. Whilst it may be that he would have limited contact with his child I am not satisfied that given that the child will be properly looked after by the mother that such would be so material. I do take into account the best interests of the child. However the child will be looked after by the mother and the best interests are served by the child remaining with the mother."
34. On the basis of the evidence it has not been made out that any alleged error is material or that the Tribunal is likely to make a different decision on the facts. No arguable legal error material to the decision to dismiss the appeal on human rights grounds has been made out.
Decision
35. There is no material error of law in the First-tier Tribunal Judge's decision. The determination shall stand.

Anonymity.

36. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to protect the identity of the minor child.

I make such an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 31 August 2016