Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01095/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
On 31 January 2017
On 16 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

D M K
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Latta & Co, 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 Blair, dismissing his appeal against refusal of protection.
2. The grounds are as follows.
?
2. At paragraph 23 the judge states, "In my view given the appellant's evidence (which was not contradictory before me) at screening interview that he had an ID card it would be possible for him to be returned to the IKR. In line with AA he should be able to secure a passport or a laissez passer."
3. ? the judge has, firstly, not taken account of the guidance in AA Iraq CG [ 2015] 0054 that any return directly to the IKR via Erbil airport needs to be cleared with the authorities in the IKR.
4. ... the judge has made a material factual error ? the screening interview? makes no mention of the appellant having an ID card? a critical factor in feasibility of return?
5. Additionally, the judge has not taken the guidance in AA into consideration ? The appellant's entry into the IKR would be contingent upon having a CSID or another way to prove his identity in order to be "pre-cleared"? a laissez passer is not an accepted form of identification and will not assist in obtaining a CSID.
6. The alternative place of return would be Baghdad, with the prospect of the appellant's own arrangement ? for onward travel to the IKR. The judge says at paragraph 25, "? any journey from Baghdad to the IKR? would appear to be feasible".? The judge had no regard to the guidance? That any person originating from IKR would be returnable to IKR. Only if not from the IKR would they be returnable to Baghdad. In any event were the appellant returned to Baghdad? he will need to make his own way to Erbil ? The judge has not taken account of the guidance? or the appellant's oral submission that the appellant could not fly to Erbil (as his laissez passer will be taken from him at Baghdad and without ID he will be unable to get on another flight) otherwise the appellant would have to drive to Erbil, which is not currently possible as he would need to travel through Isis held contested areas. Thus there is no way for the appellant to reach the IKR from Baghdad with no identification documents.
7. It was accepted that the appellant was Kurdish from Iraq? on the basis of AA ? he cannot be returned to Baghdad with the expectation that he remains there as it would be unduly harsh for a person of Kurdish ethnicity, who does not speak Arabic, has no ID and no family in the area ?
3. It was pointed out at the beginning of the hearing in the UT that although identification is not mentioned in the screening interview, the appellant had provided a statement dated 14 December 2015 (page F5 respondent's bundle in the FtT) in which he says at paragraph 11, "I have never had an Iraqi passport. I had an Iraqi identity card but I left it at home when I fled the village". The judge appeared to have become confused between this item and the screening interview, but not regarding the information provided by the respondent. Mr Winter accepted that in that light, the grounds, so far as based on not having an identification card, could not succeed.
4. Mr Winter submitted that the appeal nevertheless had prospects of success, on the following basis. There was no evidence that the Kurdish authorities had pre-cleared the appellant for entry to Kurdistan. If not pre-cleared, the appellant would be left in limbo. That might not lead to a grant of protection, in terms of AA, but on that point permission had been granted to appeal to the Court of Appeal on 21 July 2016, [2016] EWCA Civ 779. The appellant's preference would be for these proceedings to be sisted pending the outcome in the Court of Appeal.
5. I refused that application. I saw no reason to depart from the general rule that cases should be decided on the law as currently understood. There are many similar cases, and neither party was aware of stays or sists being generally granted since 21 July 2016.
6. Mr Winter submitted that the difficulties of the appellant entering the IKR, either directly or from Baghdad, without preclearance, and the factors mentioned in the grounds regarding the undue harshness or relocation to Baghdad, were such that the outcome should be reversed.
7. Mrs O'Brien submitted thus. The judge disbelieved the appellant on the core of his account. No error was alleged in those findings. There was no reason why the appellant should be given credit for any allegations about lacking identity documents. The judge had been right to note that he accepted he had an identity card. The judge did not accept that the appellant has lost contact with Iraq (paragraph 23), so even if the card was left at home, there was no reason to think that it could not be sent to him. Based on those findings, the appellant was returnable directly to the KRG, in keeping with country guidance. That was the end of the case, with no need to look any further. Any "preclearance" procedure takes place when removal is in prospect, not in advance of the outcome of an appeal. The SSHD did not need to establish preclearance case-by-case at hearings. It was accepted that the judge had not considered the feasibility of relocation in Baghdad, but that alternative did not arise.
8. Mr Winter in reply said that there was an error in that preclearance needed to be established, the onus being on the SSHD to show how return was to be carried out.
9. I reserved my decision.
10. AA refers to the need for preclearance for entry into the IKR, but I was not referred to any passage which suggests that the Secretary of State is required to produce individual preclearance at an appeal hearing, failing which an appellant is entitled to protection.
11. On this issue, I prefer the submission for the respondent. Removal arrangements are generally made once a person is lawfully removable. It would be cumbersome and wasteful (and probably unlawful) to make them in advance. The Secretary of State is not usually required to prove the specific mode by which return is to be carried out in each case.
12. The point to be resolved by the Court of Appeal does not appear to assist the appellant, even if the country guidance is found to be unsound on the question of protection which should be extended to persons who are not practically returnable. On the evidence and findings, he does not fall into that category.
13. There was no reason to think that the appellant would not be returnable to the IKR, and no error of law in the decision of the FtT. It correctly applied country guidance, which is not subject to appeal on any material point.
14. The decision of the FtT shall stand.
15. No anonymity direction has been requested or made.

15 February 2017
Upper Tribunal Judge Macleman