Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00418/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
On 11 November 2016
On 21 November 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

D I
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Martin, of Jain, Neil & Ruddy, Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Green, dismissing his appeal against refusal of asylum.
2. There is one ground. Mr Martin accepted its formulation as specified by FtT Judge Brunnen in the grant of permission, dated 20 September 2016:
"? The judge arguably erred in his approach to the issue of internal relocation? necessary because the appellant originates from an area accepted to be unsafe for purposes of article 15 (c).? The judge failed properly to apply the finding in AA that the respondent will return to the IKR only those who originate from there or whose identity has been pre- cleared. The judge proceeded on the basis that the respondent proposed to return the appellant to the IKR via Erbil? the respondent proposed that course based on her mistaken belief Kirkuk, where the appellant originates, is in the IKR. Although this mistake was brought to his attention, the judge nevertheless proceeded on the basis of return to Erbil. It is arguable that this was an error of law."
3. The guidance set out in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) is as follows.
Note: References to Iraq herein are to the territory of Iraq excluding the autonomous Iraqi Kurdish Region ("IKR") unless otherwise stated.
A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE
1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called "contested areas", comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta'min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.
2. The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.
3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).
4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)
5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P's return is not currently feasible, given what is known about the state of P's documentation.

C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).
10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.
11. Where P's return to Iraq is found by the Tribunal to be feasible, 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. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)
14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.
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 CSID or will be able to obtain one (see Part C above);
(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 (women face greater difficulties than men in finding employment);
(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 failed asylum seekers are provided with the support generally given to IDPs.
16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).
E. IRAQI KURDISH REGION
17. The Respondent will only return P to the IKR if P originates from the IKR and P's identity has been 'pre-cleared' with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.
18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a)the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b)the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.
F. EXISTING COUNTRY GUIDANCE DECISIONS
22. This decision replaces all existing country guidance on Iraq
4. Mr Martin said that the judge concluded it would be safest for the appellant to be returned via Erbil, which conflicted with AA, a case which remained sound as country guidance. The error stemmed from the respondent's mistake at paragraph 37 of the refusal letter, which said that Kirkuk is part of the IKR, and went on to say that the appellant could travel, avoiding any contested area. Kirkuk is not in the IKR, and is a contested area. The appellant could not be removed there. He would presumably be returned to Baghdad, for onward travel. If return was feasible at all, as held by the first-tier tribunal, the appellant, being undocumented, could not be expected to enter the IKR, and would not have pre-clearance. He would not be in a position to establish himself there. He could not obtain employment, without documentation. If not returnable to the IKR, then the appellant would be returned to Baghdad. It should not be found that he might have the option of going to southern or central Iraq. His statement that he speaks no Arabic had not been challenged. He is a member of the Kurdish ethnic minority and the Sunni religious minority. That would inhibit his relocation. The decision should be set aside and the appeal should be allowed on the basis of humanitarian protection or of article 3 of the ECHR.
5. A rule 24 response by the respondent states that irrespective of error in the respondent's suggestion that the appellant might be returned via Erbil, the judge at paragraph 15 correctly applied AA; "as he does not originate from the IKR, he will be able to gain entry for 10 days as a visitor and then renew his entry permission" and "if he was returned to Baghdad, his onward journey would have to be by air to Erbil".
6. Mrs O'Brien relied upon that response, and submitted that although there was an unfortunate error in the refusal letter, any consequent slip by the judge was immaterial. The judge was well aware of the likely route of return, and applied AA, headnotes 14 and 15, correctly. The appellant had not been found to be a reliable witness. He did not fall into any of the risk categories suggested in AA. There was no reason to think that he could not relocate in Baghdad, or in the IKR if chose. There was nothing in the AA findings which entitles him to protection.
7. I reserved my decision.
8. The refusal letter said at paragraph 37, "You originate from Kirkuk which is part of the IKR. Following [AA] ? you can travel by air to Erbil ? avoiding any contested area ? "
9. The judge said at paragraph 15, "The respondent does not appear to be proposing to send the appellant to Baghdad which would then require further onward travel. He would not be able to travel safely by land from Baghdad ? to the IKR ? his onward journey would have to be by air to Erbil. The safest option would be ? to travel to Erbil direct without first having entered via Baghdad ?"
10. Any slip by the Judge may have been only typographical. He perhaps meant to say, in light of corrected information before him at the hearing, "The respondent does now appear to be proposing to return the appellant to Baghdad ?.", which would fit better with the rest of the sentence and paragraph.
11. At highest, the judge erred on a factual point, repeating the respondent's error that direct travel to Erbil was feasible, based on the misconception of origins in the IKR.
12. There is nothing to show that the appellant would qualify for protection, based on return to Baghdad. He might relocate there; travel onwards by air to Erbil to relocate; or relocate elsewhere in Iraq.
13. I have been unable to find in the judge's conclusions (other than those relating to direct return to Erbil), in the guidance in AA, and in the submissions for the appellant, which taken together might entitle the appellant, as an ordinary Sunni Kurd from Kirkuk, to any form of international protection.
14. I find in the submissions essentially no more than an argument against internal relocation of a nature which found no favour with the UT in AA.
15. The determination of the First-tier Tribunal shall stand.
16. An anonymity direction was made in the FtT. There does not appear to be any particular need for one, but as the matter was not addressed in the UT, I have maintained anonymity in this determination.

18 November 2016
Upper Tribunal Judge Macleman