Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00646/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2nd September 2016
On 1st November 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D E TAYLOR

Between

Hawre [A]
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Hossein of Counsel instructed by Morgan Dias
For the Respondent: Mrs Pettersen, Home Office Presenting Officer

DECISION AND REASONS
1. This is the appellant's appeal against the decision of Judge Ince made following a hearing at Bradford on 16th March 2016.
Background
2. The appellant is a citizen of Iraq born on 1st November 1985. He arrived in the UK on 10th May 2015 and applied for asylum. He was refused on 7th July 2015.
3. The basis of the appellant's claim is that he is an Iraqi national of Kurdish ethnicity and lived in Mosul. He said that he was threatened by five members of IS because he was selling women's clothes and cosmetics in his shop. He was lashed some twenty to 30 times. When his sisters were told that they were going to be forcibly married and fined 10,000,000 dinars for failing to wear their hijabs, the family decided to leave. The appellant telephoned a relative, his mother's cousin, who was a taxi driver, who agreed to drive them to the Iraqi/Syrian border. At the point of meeting the agent and boarding the lorry the family were separated and the appellant travelled alone.
4. The respondent did not believe that the appellant was telling the truth about the circumstances leading to his departure from Iraq. The judge, however, found that he had been truthful and that he feared persecution from non-state actors, namely IS, if he returned to Mosul.
5. He cited the decision in AA (Article 15(c)) CG [2015] UKUT 544 and then wrote as follows:
"It would appear that, as the appellant has a PDS card, it would not be difficult for him to obtain a replacement CSID card, either from the Iraqi Embassy prior to return to Baghdad, or by having his relative in Mosul obtain one for him using a power of attorney. That would enable him to obtain a passport or laissez-passer. I appreciate that he has not been in contact with his relative for about a year but there is no evidence before me that contact cannot be established since the appellant's evidence is that he had not attempted such contact. In addition, the case of AA indicates that an alternative civil status affairs office of the appellant's governorate, namely Mosul, has been established in Baghdad, which can assist him in obtaining a CSID card."
6. The judge concluded that it would be feasible for him to return to Baghdad and on that basis dismissed the appeal.
The Grounds of Application
7. The appellant sought permission to appeal on two grounds. First that, according to AA, the appellant did not possess the documentation required to obtain a replacement CSID card from outside of Iraq and his inability to obtain a replacement one would expose him to a real risk of destitution. Second, in his consideration of internal flight, the judge had confined his analysis to financial sustainability which was an error of law.
8. Permission to appeal was initially refused by Judge Foudy on 24th May 2016.
9. The appellant then renewed his grounds to the Upper Tribunal arguing that Judge Foudy had failed to engage with the arguments.
10. Permission to appeal was subsequently granted by Upper Tribunal Judge Frances on 1st August 2016.
11. The respondent served a reply on 31st August 2016 asserting that the Grounds of Appeal amount to no more than a mere disagreement with the decision.
Submissions
12. Mr Hossein submitted that the judge's findings in relation to the CSID were unreasoned. There was no evidence that he could contact a relative in Mosul in order to obtain the relevant documentation.
13. Mrs Pettersen, having initially defended the determination, acknowledged its shortcomings.
Consideration of whether there is an Error of Law
14. The crux of this appeal is the appellant's ability, or lack of it, to obtain a CSID card. If he could do so it is likely that he could reasonably return to Baghdad. If not relocation to Baghdad is likely to be unreasonable/unduly harsh in accordance with paragraph 15 of AA.
15. It does not seem to have been explored at the hearing whether the taxi driver who took the appellant and his family to the border is still in Mosul or indeed if there are other relatives in Iraq who could assist. That evidence is crucial to the outcome of this appeal.
16. There is less merit in Ground 2. However the judge did err in law in failing to identify the evidence upon which he had concluded that relatives would be in a position to assist the appellant in replacing a CSID card.
17. The decision is set aside.
Resumed hearing.
18. When this matter came back before me I heard brief oral evidence from the appellant who confirmed that the contents of his latest witness statement dated 8th September 2016 were true and correct.
19. In that statement Mr [A] reiterated his case, which was found to be credible by the Immigration Judge, that he would be at risk on return to Mosul on account of being targeted by ISIL, having owned a shop selling cosmetics and women's clothing. He also said that his life would be in danger as his father was an informant loyal to the Ba'ath Party, which meant that they were not on good terms with the family. When they left Iraq he was separated from his mother and sisters, and his mother kept his Iraqi ID card and his nationality ID card. The only document which he had was his monthly ration book.
20. He said that he had no way of obtaining a CSID card but, when questioned by Mrs Pettersen, acknowledged that he had not approached the Iraqi Embassy for any help. Neither had he been in contact with any family member since he left.
21. Mrs Pettersen accepted that, in reality, given the present situation in Mosul, it would not be possible for the appellant to access help from anyone there in obtaining a CSID card, although she submitted that it was unlikely that he had no contact numbers for any relative there because it was in his own interest to say that he had lost contact. She did however submit that it was likely that the appellant could obtain a replacement CSID card on the basis of his ration book and the fact that he had made no attempt to do so indicated his lack of interest in obtaining one.
22. Mr Hussain submitted that the present situation in Mosul prohibited any possibility of obtaining assistance in getting a card from there. He also submitted that the Iraqi Embassy in London would not issue a CSID card on the basis of a ration book (paragraph 177, AA (Article 15(c)) (Rev 1) CG [2015] UKUT 544 (IAC)). If he was unable to obtain the CSID, relocation to Baghdad would not be reasonable. On that basis he asked that the appeal be allowed on humanitarian protection grounds, with respect to Article 3.
Findings and Conclusions
23. Mrs Pettersen realistically accepted that any argument that the appellant could realistically contact a relative in Mosul in order to ask him to go to the Civil Status Affairs Office there was hopeless in the light of the major offensive by the Iraqi Army which in fact commenced today.
24. So far as the Iraqi Embassy here is concerned, at paragraph 177 of AA the Tribunal said:
"In summary, we conclude that it is possible for an Iraqi national living in the UK to obtain a CSID through the consular section of the Iraqi Embassy in London, if such a person is able to produce a current or expired passport and/or the book and page number for their family registration details. For persons without such a passport, or who are unable to produce the relevant family registration details, a power of attorney can be provided to someone in Iraq who can thereafter undertake the process of obtaining the CSID from such person from the Civil Status Affairs Office in their home governorate. For reasons identified in the section that follows below, at the present time, 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. ... 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 a person could apply for formal recognition of identity. The precise operation of this court is, however, unclear".
25. When I asked Mrs Pettersen specifically whether she had any information upon which her rather optimistic submission that the appellant could obtain a CSID in London on the basis of his ration card, she said that she had no such information.
26. The appellant has been found to be credible in all material respects by the previous Immigration Judge. There is therefore no basis to doubt his word that he does not have the relevant documents, namely an expired passport or a record of the family registration details.
27. His inability to obtain a CSID is important, because, according to paragraph 151 of AA:
"A person returned to Iraq who was unable to replace their Civil Status ID Card or Nationality Certificate (who would) be likely to face significant difficulties in accessing services and a livelihood and would face destitution which is likely to reach the Article 3 threshold".
28. AA held, at paragraph 11 of the head note:
"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".
29. It was not argued at the hearing that there is any other possible relocation alternative to Baghdad. The first Immigration Judge concluded that there was no evidence that the appellant had family members or friends there able to accommodate or otherwise assist him. Although the appellant is a Kurd he does not originate from the IKR and therefore permission to enter there would only be given for an initial ten days extended by a further ten days on renewal.

Notice of Decision
30. The original judge erred in law and his decision has been set aside. It is re-made as follows. The appeal is allowed on Article 3 grounds.

No anonymity direction is made.

Signed Date 31 October 2016

Deputy Upper Tribunal Judge Taylor