Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00227/2016

THE IMMIGRATION ACTS

Heard at Manchester
Decision Promulgated
On 28 March 2017
On 19 April 2017

Before

UPPER TRIBUNAL JUDGE PLIMMER

Between

MS
ANNONYMITY DIRECTION MADE
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the appellant: Mr Nicholson, Counsel
For the respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant in this decision identified as MS.

Introduction

1. I have anonymised the appellant’s name because this decision refers to his international protection claim.

2. The appellant has appealed against a decision of First-tier Tribunal (‘FTT’) Judge Pickup dated 20 September 2016, in which he dismissed his appeal on asylum and humanitarian protection grounds.

3. The appellant is a citizen of Iraq. He claims that he was born in 1999 but his age has been assessed to be 19/20 as at the date of hearing before me.

FTT decision

4. The FTT did not accept the appellant to be a credible witness and rejected his account of events that led him to leave Iraq [25-30]. These factual findings have not been the subject of any challenge in the grounds of appeal.

5. The FTT accepted the more basic aspects of the appellant’s claim at [39]. Having done so, the FTT went on to consider, in light of AA (Article 15c) Iraq CG [2015] UKUT 544 (IAC) whether the appellant would be able to obtain a CSID and whether he could internally relocate to Baghdad. The FTT answered both those questions positively, and it is these two issues that have been challenged in the grounds of appeal submitted on behalf of the appellant.

6. In granting permission to appeal in a decision dated 25 November 2016 Upper Tribunal Judge Kekic observed that it is arguable that the findings of fact were sufficient to support the submission that it would not be reasonable for the appellant to relocate to Baghdad.

7. In a rule 24 response dated 7 December 2016 the SSHD submitted that the FTT did not make any material error of law.

Error of law

8. At the hearing before me Mr Bates accepted that the FTT erred in law in the two areas identified in the grounds of appeal. He was correct to do so for the reasons I set out below.

Reasonableness

9. The FTT was obliged to consider both the safety and reasonableness of internal relocation to Baghdad. Although the FTT directed itself to the factors relevant to assessing the reasonableness of relocation at 15 of the headnote in AA, and noted some of the relevant factors specific to this appellant at [39], it did not complete a comprehensive reasonableness analysis. The AA headnote states the following at 15:

“In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are however, likely to be relevant:
(a) whether P has a SCID or will be able to obtain one;
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female…
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned asylum seekers are provided with the support generally given to IDPs.”

10. The FTT clearly concluded that it would not be reasonable to expect the appellant to travel from Baghdad to IKR [50] but then said this, “However, I am satisfied that he can relocate to Baghdad”. The FTT then provided its reasoning for this conclusion at [51-54] after the sub-heading ‘Sunni Minority’. At [51] the FTT noted that the appellant could reside in a Sunni neighbourhood of Baghdad, and found that there are therefore “safe areas within Baghdad” for him [52 and 54]. The FTT rejected the submission that it would be unduly harsh to expect the appellant to live in Baghdad [53] but the reasoning for this is unclear and inadequate. The FTT had already accepted a number of the relevant factors tending to show that relocation to Baghdad would be unreasonable or unduly harsh [39]: appellant is Kurdish; inability to speak Arabic; no friends / family in Baghdad; no sponsor in Baghdad; Sunni minority community membership. As Mr Bates noted, the FTT appears to have attached great weight to the appellant’s ability to reside in a Sunni enclave without considering the difficulties he is likely to face there as a Kurd who does not speak Arabic. The assessment of reasonableness at [53] does not engage with all the AA factors relevant to reasonableness or [202] of AA, which states:

“It is clear from the evidence before us that Arabic speaking males with family connections to Baghdad and a CSID are in the strongest position. At the other end of the scale, those with no family connections in Baghdad who are from minority communities and who have no CSID are least able to provide for themselves. There is a wide range of circumstances falling between these two extremes. Those without family connections are more vulnerable than those with such connections. Women are more vulnerable than men. Those who do not speak Arabic are less likely to be able to obtain employment. Those from minority communities are less likely to be able to access community support than those from the Sunni and Shi'a communities.”

11. The FTT has not directed itself to where this appellant’s circumstances fall between the “two extremes” identified in AA.

12. The FTT appears to have conflated the safety of Baghdad for this appellant with the reasonableness analysis. Even though the appellant was found not to be at risk of persecution for reasons relating to his Sunni minority status in Baghdad, it was still necessary to consider whether this risk factor when combined with the other risk factors made relocation unreasonable. At [53] the FTT appears to have found that because there are opportunities available for displaced persons generally and he will be safe in Baghdad, that is the end of the matter. The FTT has erred in law in failing to follow the country guidance in AA requiring it to assess whether there will be opportunities available in Baghdad for this young, inexperienced Kurdish appellant given the absence of family connections / community support there, and his inability to speak Arabic.

CSID (Civil Status Identity Document)

13. AA [11 of the headnote] makes it plain that it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. This is because a CSID is required to access financial assistance, employment, housing, education and medical treatment, and in the absence of family support, a lack of a CSID is in general likely to result in a real risk of destitution and serious harm.

14. The FTT concluded that the appellant is able to obtain sufficient information to obtain a CSID from the Iraqi embassy in London [41]. This was reasoned as follows: the appellant’s family members in his home governorate could go to the Civil Status Affairs Office there to obtain the relevant page and book number, which could then be taken to the Iraqi embassy for a CSID [46].

15. In my judgment this reasoning fails to adequately take into account the guidance in AA that the process of obtaining a CSID from Iraq is likely to be “severely hampered” if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring [177 and 187]. It was not in dispute that at the date of the decision, Hawija, the appellant’s home area, was such an area. The FTT accepted that the appellant could not be expected to go to his home civil affairs status office (if it still exists) because of the Article 15(c) risk there, but found that his uncle could go to the office on his behalf. The FTT has overlooked the fact that because of the risk of Article 15(c) harm occurring in Hawija, the uncle’s ability to go to the office is as likely to be as severely hampered as any other person’s. The fact that family assisted the appellant to leave Iraq illegally and without documentation does not mean that they can reasonably be expected to attend a public office and run the risk of serious harm.

16. It follows that the FTT decision contains two material errors of law.

Re-making the decision

17. Although the grounds of appeal focussed on Article 15(c), Mr Bates accepted that given the updated country conditions, I should consider for myself whether or not the appellant is entitled to refugee status and then alternatively humanitarian protection.

Approach to asylum claim

18. Both representatives agreed that I should remake the decision by applying the guidance in AA and BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC), together with the updated country evidence, to the following accepted facts:

(i) Kurdish ethnicity;
(ii) Sunni minority community;
(iii) The appellant cannot safely or reasonably be returned to Northern Iraq by any route;
(iv) He is at real risk of harm in his home area of Hawija because of Daesh’s continuing presence there;
(v) He has family members in Hawija but none in Baghdad and he has no other support mechanism or sponsor in Baghdad;
(vi) He is a relatively young man about the age of 20;
(vii) He left Iraq in August 2015 and has resided in the United Kingdom since September 2015;
(viii) He does not have a CSID and is unlikely to be able to obtain one.

CSID / feasibility of return

19. Both representatives agreed that the appellant is a person without any documentation and that it is unlikely that he will be able to obtain a CSID. His family members cannot be expected to obtain the relevant information from their local office, for the reasons set out above. Daesh remain in control of Hawija – see the country policy and information note: security and humanitarian protection, Iraq, March 2017 at 3.2.2.

20. This means that it would not be feasible to return the appellant to Iraq because of a lack of relevant documentation. The appellant will not be returnable to Iraq because he is not in possession of a current or expired Iraqi passport or a laissez-passer. This appellant has never had a passport. I have considered whether or not he can obtain a laissez-passer in light of the guidance in AA at [170-186] but find that this will not be possible. The Court of Appeal’s observations when granting permission to appeal in AA v SSHD [2016] EWCA Civ 779 are not directly relevant to the facts of this case.

21. In any event, both representatives agreed that the unfeasibility of the appellant’s return does not preclude his claim to international protection from succeeding if the asserted risk of harm is not solely based on factors rendering his actual return unfeasible – see [169] of AA. That a person whose return is not currently feasible may, nevertheless, still succeed in a claim to international protection, if and insofar as the claim is based on a real risk of harm, which arises otherwise than by not having the requisite documentation, was clearly anticipated by the Upper Tribunal in AA at [207]:

“Given that the appellant's return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraphs 169 and 170 above, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation and that an applicant should not be precluded for pursuing a claim to international protection in circumstances where the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person's actual return unfeasible.”

22. This approach has recently been applied in R (H) v SSHD (application of AA (Iraq CG) IJR [2017] UKUT 00119 (IAC) at [42-43].

Risk in home area

23. Both representatives agreed that the appellant is at real risk of serious harm in his home area for reasons relating to an imputed political opinion. Daesh are likely to impute an anti-‘Islamic state’ opinion to him. I acknowledge and accept the FTT’s adverse credibility findings. However, notwithstanding those, the appellant remains at real risk of serious harm in his home area.

Internal relocation to Baghdad

24. I am satisfied that it would be unreasonable or unduly harsh to expect the appellant to relocate in Baghdad given the risk factors identified above. He is at the “other end of the scale” identified in AA at [202] as he has no family connections in Baghdad, is from a minority community and has no CSID. He falls squarely within the category of people AA accepts at [203] cannot generally be expected to relocate to Baghdad, notwithstanding the limited support given to IDPs.

25. The appellant will not have access to alternate adequate support mechanisms in Baghdad. There is no viable family for him to turn to and he has no friends or contacts there. This is likely to make relocation particularly difficult in circumstances where displaced persons often find it very difficult. AA emphasises that careful consideration must be given to the ability of family members to support the appellant [197]. It is not disputed that his family reside in an area where conflict continues. Their ability to support him from there is most unlikely. As set out in AA [202] those without family connections in Baghdad are more vulnerable. I am satisfied on the evidence currently available that the appellant will not have access to family members or resources to enable him to obtain accommodation in Baghdad. If returned to Baghdad, he would be going there as a Kurd and a Sunni, who does not speak Arabic. He will therefore be in a minority community, but with no contacts within that community and unlikely to be able to obtain employment for this reasons taken together with his inability to speak Arabic.

26. These factors must be viewed alongside other factors placing the appellant at increased risk and reasonably likely to render life in Baghdad to be precarious for him – see the BA headnote, which states:

“(v) Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.

(vi) Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.

(vii) In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection.”

27. Although the majority of Sunnis are able to lead a relatively normal life in Baghdad, it is not without risk. This appellant, a young Sunni man with no experience of Baghdad at all and no contacts there, is at increased risk of being perceived as an ISIL / Daesh supporter. For these reasons he is also at increased risk of kidnapping and killing in the current environment. The level of political and sectarian violence in Baghdad remains high even if it does not meet the threshold required to show a generalised risk of indiscriminate violence. The background evidence shows that checkpoints are largely manned by Shia militias, with the attendant risks and insecurity that presents for a young man with the appellant’s characteristics.

28. Having considered all of the circumstances cumulatively I am satisfied that the appellant's individual profile is such that it would not be reasonable to return him to Baghdad. Mr Bates candidly accepted that it was difficult to see how the accepted facts in this case could lead to any other conclusion.

29. The pertinent AA risk factors already identified must be considered alongside the constant state of anxiety and insecurity the appellant is likely to face in the current environment, as set out in BA, because of his particular profile. This appellant is reasonably likely to face many different serious challenges as a result of his particular profile, and for this combination of reasons it is unduly harsh to expect him to relocate to Baghdad.

Conclusion

30. I accept that the appellant faces a real risk of persecution for reasons relating to his imputed political opinion in his home area and that he cannot internally relocate to Baghdad or any other part of Iraq.

31. In the alternative, the same factors would give rise to an enhanced individual risk for the purpose of Humanitarian Protection under Article 15(c) of the Qualification Directive or for the purposes of Article 3 of the ECHR.

32. Having made these findings there is no need for me to consider Article 8.

Decision
33. The decision of the FTT contains errors of law and is set aside.

34. I remake the decision by allowing the appellant’s appeal and find that his removal would breach the Refugee Convention and Article 3 of the ECHR.

Signed:
Ms M. Plimmer
Judge of the Upper Tribunal

Date:
28 March 2017