Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01158/2016

THE IMMIGRATION ACTS

Heard at Newport
Determination Promulgated
On 22nd February, 2017
Signed and sent to
Promulgation on 17th March 2017.
On 21st March, 2017

Before

Upper Tribunal Judge Grubb
Upper Tribunal Judge Chalkley

Between

MA
(ANONYMITY ORDER CONTINUED)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A O’Callaghan of Counsel
For the Respondent: Mr A McVeety, a Senior Home Office Presenting Officer

Anonymity Direction
The First-tier Tribunal made an anonymity direction pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. We have not been asked to discharge or vary that order. Accordingly, no report of these proceedings shall directly or indirectly identify the appellant or any member of his family. This direction applies to both the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DETERMINATION AND REASONS

1. The appellant was born on 18th January, 1990 and is a citizen of Iraq.

2. He claimed asylum on 28th September, 2015, claiming that he could not return to Mosul in Iraq, because it had been occupied by ISIS and he could not relocate elsewhere, because his father had been a member of the Ba’ath Party.

3. The respondent refused the appellant’s application on 20th January, 2016. The appellant appealed to the First-tier Tribunal and his appeal was heard by First-tier Tribunal Judge O’Brien on 19th August, 2016.

4. The appellant chose to leave Iraq without documentation that would be necessary to return him. He said that he was told to leave it behind in case he and his agent encountered an ISIS checkpoint on their departure. The judge did not find this to be a credible explanation.

5. The appellant claimed that he had forgotten all his family’s mobile phone numbers and this too was found to be incredible by the judge. The judge believed that the appellant was claiming not to be in touch with family members in order to place further barriers in the way of his return.

6. The judge accepted that the appellant’s father was a member of the Ba’ath Party and had been active in Mosul. However, the judge did not believe that the appellant would be unable to relocate to the IKR for that reason. For the first time before the judge, the appellant claimed specifically to have been told that his father’s activities in Mosul had given rise to a general risk to the family throughout the IKR. The judge did not believe this and thought that the risk would have been raised at a considerable earlier point were it to be true. The judge found that the appellant had woefully exaggerated his claim in order to avoid return.

7. The judge went on to reject the suggestion made on behalf of the appellant that he would be identified and associated in the IKR with his father’s activities in Mosul on behalf of the Ba’ath Party and, as such, would face a real risk of persecution on that basis. The judge also rejected the suggestion made that as a Kurd, the appellant would face particular risks in Baghdad. It was accepted in the appellant’s skeleton argument that evidence does not suggest a real risk of harm under Article 15(c) to civilians who are Sunni or Shia, Kurds or have former Ba’ath Party connections, and those characteristics do not in themselves amount to an enhanced risk category under Article 15(c).

8. Referring to AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC), the judge noted that the appellant would be able to obtain a replacement CSID in either Baghdad or Kerbala. The judge repeated that he did not believe that the appellant was at a real risk of being identified as someone associated with corrupt and violent Ba’ath Party activities, when applying for a replacement CSID.

9. The judge went on to find that he was not satisfied that the appellant could not speak Arabic and believed this to be an exaggeration on the appellant’s part to avoid return. The judge bore in mind that the appellant grew up in Mosul, a mixed ethnicity city in Iraq. He accepted that it was reasonably likely that the appellant, coming from Mosul, has no close family or friends in Baghdad able to accommodate him, but had heard no evidence as to whether or not the appellant could find a sponsor in order to access accommodation. The judge found that it would be unduly harsh to expect the appellant to return and live in Baghdad permanently.

10. However, the judge believed there to be no reason why the appellant could not return to Baghdad and relocate internally to the IKR. He rejected the suggestion that the appellant would be at risk in the IKR because of his father’s history. He found himself unpersuaded that the appellant would be unable to make the journey, noting that the appellant was a “resourceful individual whose family were able to fund his escape from Mosul”. The judge did not believe it reasonably likely that the appellant would be stuck in destitution in Baghdad and rejected the suggestion that the appellant was no longer in contact with his family, believing that he would be able to make arrangements for forward travel.

11. The judge believed that country guidance in AA suggested that the appellant would be able to remain in the IKR for at least twenty days, in order to find employment and that the authorities would not seek proactively to remove him thereafter. The judge again found that the appellant was a resourceful individual and believed that he would be able to secure employment of some kind. The judge did not believe that the appellant would face a real risk of serious harm if returned and was satisfied that it would be reasonable and safe for him to return via Baghdad, in order to obtain a CSID and then travel onwards to the IKR where he would be able to establish himself safely.

12. The appellant challenged the judge’s decision on three grounds. Permission was granted only in respect of the first challenge. This suggested that the judge had failed to apply country guidance. It suggested that the judge had failed to access the practicality of the appellant travelling from Baghdad to the IKR; the likelihood of the appellant securing employment in the IKR; and the availability of assistance to the appellant from family and friends in the IKR. The judge also failed to assess how it is anticipated that the appellant would travel from Baghdad to IKR without facing persecution on his way.

13. In addressing us, Counsel suggested that the judge had failed to consider AA. She explained that the judge’s determination was believed to be defective, because the judge had failed to consider the practicality of return, the difficult; the appellant would have in obtaining employment; and the fact that he had no family or friends on whom he could call. She submitted that the judge also failed to consider his lack of funding and suggested that his family could not assist him to reach IKK.

14. Referring to the belief of the judge that the appellant would be able to remain in the IKR for at least twenty days in order to find employment and that the authorities would not proactively seek to remove him thereafter, she suggested that there was a lack of reasoning for this and a lack of reasoning for finding that he was a resourceful person who would find secure employment of some kind. It was suggested to Counsel by the Tribunal that the appellant would be able to travel to Mosul by airline. The Tribunal pointed out that having no close family or friends in Baghdad would not necessarily prevent his family or friends assisting him in travel to IKK. Counsel suggested that the lack of employment and lack of family members would make it unduly harsh for the appellant to relocate, given his age.

15. Mr McVeety reminded us that the burden was on the appellant to prove his claim. He was assisted in leaving by family and friends although, according to his answers given at his asylum interview, he did not know who paid for his departure. The judge was entitled to think that he would be assisted by family or friends to be able to travel to IKK. He was assisted previously and there were no reasons, and certainly no credible evidence, to suggest that assistance would not be available on his return. The judge was entitled to reach the decisions he did on the evidence before him. There was, Mr McVeety pointed out, no evidence to the contrary.

16. Responding briefly Counsel pointed out that there was no evidence as to where the appellant’s friends came from and no explanation by the judge as to where the money for the appellant’s onward journey would come from. We reserved our decision.

17. We are satisfied from our consideration of the judge’s determination, that he very clearly did consider and apply guidance given in AA. He clearly had it in mind when he considered whether onward internal relocation from Baghdad (where he accepted that it would be unduly harsh for the appellant to live permanently) to the IKR, would be a reasonable option.

18. The judge found that the appellant was a resourceful person and noted that the appellant had woefully exaggerated his claim in order to avoid return. The judge also found that it was not credible that the appellant had forgotten all his family’s mobile telephone numbers, and believed that the appellant claimed not to be in touch with them in order to place barriers in the way of his return.

19. We remind ourselves that the judge was dealing with a 26 year old healthy male. Counsel confirmed that there was nothing about the appellant or his health that the Tribunal had not been advised of. The judge was well aware of the fact that family and friends had paid for and assisted his departure from Iraq and, while the appellant was unaware as to who precisely had paid for his departure, the judge was entitled to believe that on his return it was not reasonably likely that the appellant would be stuck in destitution in Baghdad. He specifically believed that the appellant would be able to make contact with his family and that, through them, he would be able to make arrangements for his onward travel. We believe that these were findings all of which were clearly open to the judge to make on the evidence before him. As Mr McVeety pointed out, no credible evidence was adduced by the appellant to the contrary.

20. We believe that the judge was entitled to find that the appellant would be able to secure employment of some kind on return to Iraq. We reject the suggestion made by Counsel that the appellant would not be able to obtain employment and would have no family assistance, making his return unduly harsh given his age. Counsel confirmed that there was nothing about the appellant or his health that the Tribunal had not been advised of. When he appeared before the judge, he appeared as a healthy 26 year old who left Iraq travelling via Syria and Turkey. We accept that for at least part of his journey to the United Kingdom he used the services of an agent, but believe that the judge was entitled to conclude that he was resourceful and would be able to secure employment of some kind.

21. We have concluded that the determination of the judge contained no material errors of law and we uphold his decision. This is the decision of us both.

Notice of Decision

The appeal is dismissed on asylum grounds and on human rights grounds.

Richard Chalkley
A Judge of the Upper Tribunal.

TO THE RESPONDENT
FEE AWARD

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

Richard Chalkley
A Judge of the Upper Tribunal.