Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00108/2020

THE IMMIGRATION ACTS

At: Manchester Civil Justice Centre
Heard on: 21st June 2022
Decision & Reasons Promulgated
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

RHH
(anonymity direction made)
Appellant
and

Secretary of State for the Home Department
Respondent

For the Appellant: Mrs Johnrose, Counsel instructed by Broudie Jackson & Canter
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a national of Iraq born in 1998. He appeals with permission against the decision of the First-tier Tribunal (Judge Handler) to dismiss his protection and human rights appeal.

2. When the Appellant arrived in the United Kingdom in December 2018 he sought asylum on the grounds that he had a well-founded fear of persecution for reasons of his ethnicity (Kurdish), and political opinion (anti-ISIS). For reasons that I need not address in this decision, the Respondent rejected that claim for want of credibility, as did Judge Handler when the appeal duly came before her in the First-tier Tribunal.

3. The issue raised in this appeal is the approach taken to both decision makers to the Appellant’s claimed lack of identity documents. As is well established by a series of country guidance cases and the Secretary of State’s policy position, individuals such as the Appellant cannot be returned to Iraq if there is a real risk that they do not have valid identity documentation, or the ability to acquire the same within a reasonable time frame. That is because without an identity document an Iraqi citizen cannot travel internally, rent or buy accommodation, get a job, or access state support. Such a predicament gives rise to a real rise of destitution. It is therefore accepted, most recently in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) (‘SMO II‘) that a person who faces such a prospect must have their appeal allowed on the grounds that enforced return to Iraq would put the United Kingdom in breach of its obligations under Article 15(b) of the Qualification Directive/Article 3 of the European Convention on Human Rights. The appropriate outcome in such cases is a grant of Humanitarian Protection.

4. The salient findings made by Judge Handler about this matter were that the “appellant is in contact with his father, mother and sister in Iraq and that either he has his CSID card or it is with his family in Iraq and can be sent to him in the UK. Alternatively he can provide the information and evidence required to obtain a replacement CSID card in the UK through the Consulate”. The Tribunal rejected the evidence that the Appellant could not recall the volume and page number of his entry in the ‘Family Book’ which would enable him to get a new card.

5. There are several findings rolled up in these sentences. Some can be dispensed with immediately.

6. The finding that a new card could be obtained in London must be set aside for error of law. That is because the Respondent now accepts that this is very unlikely to happen, a finding supported by the country guidance in SMO II. It is therefore an error of fact.

7. The finding that the Appellant could obtain a new CSID by recalling his own relevant data must be set aside for error of law. Although that was indeed the finding in the country guidance applicable at the time that Judge Handler made her decision - SMO, KSP and IM (Article 15 (c) identity documents) Iraq CG [2019] UKUT 00400 (‘SMO I’) - it was a finding subsequently agreed to be irrational and withdrawn before the Court of Appeal.

8. The finding that the Appellant could obtain a new CSID at all (regardless of his memory) must be set aside for error of law since it is inconsistent with the findings in SMO I: in that decision the Tribunal had accepted, at its paragraph 431, that the Appellant’s home town of Kirkuk is now issuing only new biometric identity documents – the ‘INID’ – which would require his physical attendance at the civil registry. Without a card he cannot get to Kirkuk to get one, and such a card would not be handed over to a family member or other proxy. He would therefore be stranded in Baghdad at face a real risk of encountering conditions contrary to Article 15(b)/Article 3.

9. That leaves this finding: “the appellant is in contact with his father, mother and sister in Iraq and that either he has his CSID card or it is with his family in Iraq and can be sent to him in the UK”. This finding flowed from the Tribunal’s rejection of the Appellant’s evidence that he had left Iraq in possession of his CSID but it had been handed over to an agent en route.

10. The real difficulty with that finding is that is entirely unsupported by reasoning. No explanation at all is given as to why that evidence has been rejected. It has been the Appellant’s consistent evidence since the day he arrived, and unlike other aspects of his claim, there does not appear to be any good reason to reject it. By the date that the Appellant made his journey the country guidance in the UK had established two things. First, that CSIDs are a valuable item which can be used in Iraq to obtain services including food rations. Second, that without one, it is very difficult to send anyone back to Iraq. Both of those matters point strongly towards the Appellant telling the truth about handing over his card, since it seems likely that the agents would have advised him that he would be better off being undocumented (as is indeed the case); the agents would be able to themselves recycle the card back onto the black market. That CSID cards could be misappropriated in this way is the very reason given as to why the Iraqi state has introduced the INID, with its biometric safeguards. Seen in this way it is reasonably likely that the consistent evidence of the Appellant on this point is true. I am satisfied that neither he nor any family member in Iraq is today in a position to access his old CSID, now in any event of questionable validity given the passage of time, and the introduction of INIDs.

11. I set the decision of Judge Handler aside for the reasons I have given (error of fact/failure to apply country background evidence/inconsistency with the country guidance/failure to make findings). I remake the decision by finding that it is reasonably likely that the Appellant gave his old CSID to an agent in 2015 and that in order to get redocumented he will need to travel himself to Kirkuk, where new INIDs are being issued. Unable to reach the civil registry in Kirkuk in order to do that, there is a reasonable likelihood that he will find himself stranded in the environs of Baghdad international airport and face a real risk of destitution breaching his fundamental human rights and the UKs humanitarian obligations under the ECHR and the Qualification Directive.

Decision and Directions

12. The decision of the First-tier Tribunal is flawed for error of law and it is set aside.

13. The appeal is allowed on protection and human rights grounds.

14. I have had regard to the Presidential Guidance Note 2022 No 2: Anonymity Orders and Hearings in Private, in particular paragraph 28 dealing with asylum claims1. Having done so I am satisfied that it would be appropriate to make an order for anonymity in the following terms:

“Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings”

Upper Tribunal Judge Bruce
Date21st June 2022