Tribunal decisions

The decision

IAC-BH-PMP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/00980/2016

THE IMMIGRATION ACTS

Heard at Bennett House, Stoke
Decision & Reasons Promulgated
On 16th January 2017
On 21st February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GARRATT

Between

RANJBAR OMAR TAHA TAHA
(ANONYMITY DIRECTION NOT MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr M Mohzam, Solicitor of Burton & Burton Solicitors
For the Respondent: Mr C Bates, Senior Home Office Presenting Officer

DECISION AND REASONS
1. In this appeal the Secretary of State becomes the appellant before the Upper Tribunal. However, for the avoidance of confusion and to be consistent, I shall continue to refer to the parties as they were before the First-tier Tribunal.
Background
2. On 11th November 2016 Designated Judge of the First-tier Tribunal Manuell gave permission to the respondent to appeal against the decision of First-tier Tribunal Judge Lagunju who allowed the appeal on asylum grounds against the decision of the respondent to refuse international and human rights protection to the appellant, a male adult citizen of Iraq. Permission was granted on the basis that the respondent's grounds of appeal, which I now summarise, were arguable.
3. The respondent submitted that the judge had failed to properly apply the guidance set out in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) by finding, in paragraph 28 of her decision, that it would not be unduly harsh for the appellant to relocate to Baghdad but that it was not feasible for him to do so because of a lack of documentation and, as internal flight was therefore not an option, the appellant was entitled to international protection. Whilst the respondent accepted that removal was not currently feasible the country guidance set out in paragraph 204(7) of AA did not entitle the appellant to protection simply because of that. Sub-paragraph (7) of AA states as follows:
"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."
4. The grounds also quote verbatim from paragraphs 206 and 207 of AA which give reasons for finding that the appellant's return, in that case, was not feasible and so it might be said that it was unnecessary to hypothesise any risk to him upon return. However, there might be cases where it could be evidenced 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 from 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.
5. The Respondent thought that, as the judge had found (paragraph 26) the appellant could safely return to live in Baghdad, the mere absence of identification documentation and the unfeasibility of his return there at present did not entitle him to international protection.
6. Further, the grounds also take issue with the judge's conclusion that the appeal could be allowed under paragraph 276ADE(1)(vi) of the Immigration Rules on the basis of significant obstacles to integration, as that was inconsistent with the earlier finding that it would not be unduly harsh for the appellant to internally relocate to Baghdad.
The Hearing
7. At the commencement of the hearing I established with Mr Mohzam that the appellant had not entered a response to the respondent's grounds.
8. Mr Bates emphasised that, as the judge had found that although the appellant could not be returned to the contested region of Mosul, he would not be at risk if he went to Baghdad, it was wrong to allow the appeal on the basis that return was not feasible at present because of an absence of documentation. My attention was drawn to paragraph 7 of the head note to AA (quoted above) which emphasised that an international protection claim could not succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation. The judge should not have allowed the appeal simply on the basis that return to Baghdad was not currently feasible. Further, the judge's subsequent favourable findings in relation to private life under paragraph 276ADE(1)(vi) were, therefore, inconsistent with the earlier finding that it would not be unduly harsh for the appellant to relocate to Baghdad. On the basis that the judge's findings of fact in relation to risk could stand, Mr Bates submitted that the appeal should have been dismissed.
9. Mr Mohzam submitted that the judge should have applied the findings set out in paragraph 101 of HF (a copy of which he provided to me). This reads as follows:
"101. In my judgment, this analysis is correct. I accept, as Mr Fordham submits, that it would be necessary for the court to consider whether the appellants would be at risk on return if their return were feasible, but I do not accept that the Tribunal has to ask itself the hypothetical question of what would happen on return if that is simply not possible for one reason or another. Section 67 of the 2002 Act envisages that there may be practical difficulties impeding or delaying making removal arrangements, but those difficulties do not alter the fact that the failed asylum seeker would be safe in his own country and therefore is in no need of refugee or humanitarian protection. I agree with the Secretary of State that the sur place cases are distinguishable because there the applicant could be returned and would be at risk if he were to be returned. They are not impediment to return cases."
On this basis he suggested that if the judge had found it was not feasible for the appellant to return then risk on return to Baghdad should have been considered in the light of the factors set out in paragraph 15 of the head note to AA including whether or not the appellant would be able to obtain a CSID. He also considered that the human rights conclusions were sound.
Error on a Point of Law - Conclusions
10. The guidance which is relevant to the questioned conclusions of the judge in this appeal is set out in AA. In that case the Upper Tribunal clearly had in mind the decision of the Court of Appeal in HF which is referred to in both the head note and main text of the Upper Tribunal's decision. The relevant areas of the decisions have already been quoted, above. The point is that an international protection claim made by an Iraqi citizen cannot succeed by reference to any alleged risk of harm arising simply from an absence of Iraqi identification documentation. It is only where a Tribunal is satisfied that the return of the citizen is feasible, that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
11. Mr Mohzam has argued that paragraph 101 of the Court of Appeal decision requires consideration of the factors summarised in paragraph 15 of the head note to AA. That is a new issue which was not raised by the appellant in any response to the respondent's grounds and which does not detract from the other clear guidance of the Upper Tribunal relating to the feasibility of return to Baghdad. In any event, as paragraphs 25 and 26 of the decision show, the judge did give consideration to the relevant factors in paragraphs 25 and 26 concerning the ability of the appellant to speak Arabic and the obtaining of a CSID. The judge found:
"The appellant is a healthy male who speaks some Arabic, this would stand him in good stead in Baghdad, I find on this basis he could, if feasible, safely return to Baghdad".
12. Having made that finding it was not open to the judge to find that, because return to Baghdad was not feasible because of an absence of documentation, internal flight was not a viable option and so the appellant was entitled to international protection.
13. The judge's findings (paragraph 32) in relation to private life under paragraph 276ADE contradict the earlier findings in relation to relocation. If the judge found that the appellant could safely return to Baghdad, there was no basis to find that there would be very significant obstacles to the appellant's integration into his home country on return because of an absence of documentation. The conclusions in paragraph 32 cannot stand when the appellant could be returned to Baghdad subject to documentary compliance.
14. My conclusion is that, whilst the judge erred in finding that the appellant was entitled to international protection, his finding that it would not be unduly harsh for the appellant to relocate to Baghdad can stand.
Re-Making the Decision
15. At the conclusion of submissions, I indicated to the representatives that, in the event that I were to find the respondent's grounds made out (which I do), I would be in a position to re-make the appeal. For the reasons already given, I am satisfied that, because the judge's found that the appellant could relocate to Baghdad without it being unduly harsh for him to do so, the appeal stands to be dismissed on all grounds even if it is not feasible to return the appellant at present because of an absence of relevant documentation.
Notice of Decision
The decision of the First-tier Tribunal showed an error on a point of law such that it should be re-made. I re-make the decision by dismissing the appeal on all grounds.
Anonymity
An anonymity direction was not made by the First-tier Tribunal nor was anonymity requested before the Upper Tribunal. Therefore, I do not make any such direction.

Signed Date

Deputy Upper Tribunal Judge Garratt