Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/00663/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 29 September 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

SHOO
(ANONYMITY DIRECTION MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mrs A Chaudhry, instructed by IAS, Leeds
For the Respondent: Mrs Pettersen, a Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant was born in 1991 and is a citizen of Iraq. He came to the United Kingdom as a student but subsequently claimed asylum in May 2015. The appellant is a Syriac Christian. He claims to fear persecution or ill-treatment at the hands of IS (otherwise Isis) or others within Iraq over whom Isis has influence. The respondent refused the appellant's claim for asylum by a decision dated 20 July 2015. The appellant appealed to the First-tier Tribunal (Judge Hussain) which, in a decision promulgated on 18 June 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. At [27], Judge Hussain found that "it not seriously in dispute that the appellant and his family were persecuted because of their Christian beliefs. All this happened in and around 2010." The judge noted that, in 2010, the appellant's brother had been ordained as a Christian priest, an event broadcast on Iraqi television. However, the judge found [28] that "I am satisfied that such prominence as the family had [as Christians] had all but disappeared by 2014." He also accepted, however, that the appellant's family had been driven out of their home area of Mosul and were living in Erbil (in the Autonomous Kurdish Area of Iraq) where they had been forced to live in the basement of a Christian church with other Christian families.
3. The decision of Judge Hussain is, in parts, problematic. Instead of making a clear finding as to whether or not the appellant would be at risk of his home area (Mosul) of Iraq, the judge has conflated a discussion regarding return to Mosul with an analysis of the possibility of internal flight within Iraq, both to Baghdad and, crucially, to Erbil. As I have noted, the judge found that the appellant's family's high profile as Christians had diminished in Mosul in or around 2014. At [33], the judge found that it was not likely that the appellant had lost contact with his parents and sister in Erbil as he claimed. The judge gave good reasons in that paragraph for reaching the finding. The hearing had been attended by the Reverend Canon Dr William Taylor who gave evidence regarding the appellant's Christian faith. The judge noted [33] that the Reverend Taylor, "maintains links with the church in Erbil and could have facilitated" the establishment of contact between the appellant and his family living in that city.
4. The grounds of appeal assert that (i) the judge failed properly to take into account the appellant's sur place activities in the United Kingdom which included being photographed at a "high profile meeting with HRH Prince of Wales" (ii) the judge failed to have proper regard to AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) when reaching his decision. It is asserted that the judge cannot have had regard to that country guidance when he concluded that the appellant could reasonably return to live with his family in Erbil. The grounds record that the Tribunal in AA found that "the respondent will only return [an appellant] to the IKR if the appellant originates from the IKAR and [his] identity has been 'pre-cleared' with the IKR authorities" it was also found in AA that "as a general matter, a non-Kurd who is at real risk with his home area in Iraq is unlikely to be able to relocate to the IKR."
5. Although it would have been helpful if the judge had made a proper clear finding as to the risk facing the appellant in his home area of Iraq (it appears from his analysis that he believes that the appellant may, notwithstanding his Christian faith, may not have been at risk) for the reasons which I give below, I find that this is not such an error that should lead me to set aside the decision. Even if the judge did err by failing to make clear findings regarding the risk facing the appellant in his home area of Iraq, his additional findings in respect of the internal flight alternative are, in my opinion, entirely sound.
6. The first ground of appeal challenges the judge's decision for allegedly failing to take properly into account the appellant's sur place activities. The judge accepted [30] that the appellant had attended a conference at Westminster Cathedral which had been attended by the Prince of Wales. He went on to find [31] that the appellant's actions had been "motivated by a desire to bolster his asylum claim." Such a motivation would, of course, not negate the sur place activities if these are likely, as the appellant appears to claims, to come to the attention of Isis in Iraq. As regards that contention, I agree with Mrs Pettersen, for the respondent, who submitted that, even if the sur place activities of the appellant do come to the attention of Isis, this is not relevant given that the appellant could relocate to the IKR and in particular, Erbil. This is because Isis is not present in the IKR, an area of Iraq which the appellant would be able to access directly from the United Kingdom without passing through Mosul or Baghdad.
7. This brings me to the second ground of appeal. The appellant asserts that the judge has failed to have proper regard to the country guidance of AA. The quotations from AA which I have set out above do indeed indicate that a non-Kurd may find it difficult to relocate from an Arab-area of Iraq to the IKR. However, the Tribunal in AA found that it was "unlikely" for a non-Kurd to access the IKR. The case of an Arab Iraqi with no contacts or family members living in the IKR, there would appear to be little prospect of exercising internal flight to that area. The circumstances of the appellant are, however, quite different. The judge accepted that the appellant has family members with whom he is in contact and who live in Erbil. In addition, the appellant has an association with a United Kingdom clergyman who, in turn, was involved with the Christian community living in Erbil. It was against this specific (and unusual) background that the judge made his findings regarding internal flight to the IKR. The grounds of appeal completely ignore these particular circumstances of the appellant. Whilst it may indeed be unlikely for a non-Kurd to access safety in the IKR, I find that the judge does not err in law by finding that the appellant would be able to join his family in Erbil put it another way, if the appellant's only objection to such a course of action involves relying upon the generic statements contained in AA, then it is apparent that he has failed to show the real obstacles would prevent him travelling directly from the United Kingdom to Erbil. The appellant's family members are not Kurdish but they appear to live in safety in the IKR whilst the appellant has produced no evidence to show those family members would be unable to facilitate his entry to that region; as Mrs Pettersen pointed out, the appellant entered the United Kingdom as a student with a valid Iraqi passport so he should not encounter problems over his travel documentation.
8. In conclusion, whilst it would have been helpful if the judge had not conflated his analysis of the risk facing the appellant in his home area of Iraq and the option of internal flight, I find that he has given sound and sustainable reasons for dismissing the appeal on asylum and human rights grounds.

Notice of Decision

This appeal is dismissed.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

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 or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 17 October 2016

Upper Tribunal Judge Clive Lane

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 17 October 2016

Upper Tribunal Judge Clive Lane