Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01234/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 8th November 2016
On 21st November 2016

Before

DEPUTY upper tribunal judge ROBERTS

Between

H.A.
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C Cole, Solicitor, Parker Rhodes Hickmotts
For the Respondent: Mr Harrison, Senior Presenting Officer

Anonymity

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity is granted in these proceedings. As a protection claim, it is appropriate to do so.

DECISION AND REASONS
1. This is an appeal against the decision of the First-tier Tribunal (Judge Dearden) promulgated on 21st July 2016, dismissing the Appellant's appeal against deportation. The Appellant's deportation appeal was resisted on a claim that to deport him would be contrary to his refugee convention rights and against his rights under Article 3 and Article 8 ECHR. The FtT found these claims were not made out and therefore the Appellant could not bring himself within the exception to automatic deportation in Section 33(2) of the UK Borders Act 2007.
2. The background to this appeal is that the Appellant is a citizen of Iraq (born 7th May 1982). It is accepted that he is of Kurdish origin, coming from Kirkuk region. He arrived in the United Kingdom on 31st October 2000 claiming asylum and related protection on the same day. That claim was refused by the Respondent. He lodged an appeal which was subsequently heard on 15th January 2004. At that point, the Appellant's representatives informed the First-tier Tribunal Judge, that the asylum and related protection aspects of the appeal were not to be pursued. The judge at that hearing went on to dismiss the Appellant's remaining claim under Article 8. The Appellant became appeal rights exhausted on 3rd June 2004, but by this time he had absconded.
3. The next significant event occurred on 20th March 2011 when the Appellant was convicted, at Sheffield Crown Court, of wounding with intent to do grievous bodily harm. For this he was sentenced to a term of imprisonment of ten years. In the light of this conviction, the Respondent served upon him a notice of liability to automatic deportation, dated 30th September 2011. The Appellant responded raising asylum grounds. He was subsequently interviewed by the Respondent on 15th January 2015; the Secretary of State refused his claims in a decision dated 20th January 2016. It is his appeal against that decision which forms the basis of the present matter.
The FtT Hearing
4. When the Appellant's appeal came before the FtT, the judge helpfully divided the claim into three component parts;
(1) the historic events forming the reasons why the Appellant left Iraq in 2000.
(2) an Article 8 claim on the basis of his present relationship with LB and her 14 year old son.
(3) an Article 15(c) risk on return to the Appellant.
5. For the purposes of this decision no challenge is raised to Judge Dearden's fully reasoned findings against the Appellant on the credibility of his historic claim, nor on the adverse credibility findings concerning the Article 8 claim. The judge's findings on those matters stand and are to be regarded as final.
6. The sole challenge to the decision, centres on the judge's consideration of the Article 15(c) risk which the Appellant claims he would face on a return to Iraq.
7. The grant of permission succinctly sets out the issue before me and says as follows;
"1. The First-tier Tribunal (Judge Dearden) dismissed the appellant's appeal against a refusal of his international protection and human rights claims.
2. The Judge rejected the appellant's account and his asylum claim. That is not challenged. He also rejected his claim under Art 8 and that is not challenged. However, in respect of Art 15(c) of the Qualification Directive the Judge accepted there was a 15(c) risk in Kirkuk (the appellant's home area) but that he could internally relocate to Baghdad or the IKR.
3. The grounds identify arguable errors by the Judge in reaching that finding without properly considering AA and the factors relevant to relocation including in making the finding that the appellant could obtain a CSID from Kirkuk simply because he had family there.
4. For these reasons, permission to appeal is granted".
Thus the matter comes before me to decide whether the decision of Judge Dearden discloses a material error requiring the decision to be set aside and re-made.
The UT Hearing
8. Before me, Mr Cole appeared on behalf of the Appellant; Mr Harrison for the Respondent. Mr Cole's submissions kept to the grounds seeking permission and relied upon the grant of permission itself. He submitted that the matter before me was a narrow and discrete issue. He referred to the judge's decision and said in particular the judge had failed to give reasoned findings on the issue of whether the Appellant either has, or will be able to obtain a CSID. Further, the judge has failed to make reasoned findings on whether the Appellant has family members or friends in Baghdad able to accommodate him. The judge fails to factor in or make findings on whether the Appellant can find a Sponsor to access a hotel room or rent accommodation in Baghdad. Further, the judge failed to factor in and give a finding on whether the Appellant is from a minority community. Taking those matters cumulatively, the judge has failed to engage with the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). In these circumstances, that amounts to a legal error and the matter should be returned to the First-tier Tribunal for comprehensive findings to be made, following the CG guidance in AA.
9. Mr Harrison, whilst relying on a Rule 24 response, acknowledged that the issue before me is a narrow one and said that if I were to be satisfied that the grounds seeking permission were made out then he, too, would ask that the matter be returned to the FtT as that would be the appropriate Tribunal for further fact-finding to be made. He did mention that the judge had erred concerning the Respondent's S. 72 certification, but agreed that there was no cross-challenge raised, and in any event, the Respondent had openly conceded the point before the FtT.
Consideration
10. I find I am satisfied that in an otherwise fully reasoned decision, the FtT judge has not shown that he has followed the necessary step by step approach to risk on return which is set out in the country guidance of AA (Iraq). I accept that the judge has said with good reason that he does not find the Appellant to be a credible witness but nevertheless I find he fails to apply the principles set out in AA. Therefore there is a failure to show a fully reasoned finding that the Appellant could safely internally relocate to Baghdad or the IKR. By failing to follow the step by step guidance in AA, the FtT has not shown that consideration has been given to all the relevant evidence placed before it. So far as that part of the decision is concerned, the error is a material one and the decision is set aside.
11. The matter will now be remitted to the First-tier Tribunal (not Judge Dearden) for a hearing to take place limited to the Article 15(c) risk on return. The Appellant will need to attend to give evidence. Full findings of fact relevant to that evidence will need to be made, following the step by step guidance set out in AA. It is appropriate that the First-tier Tribunal re-make the decision. This was also the view of both the representatives.

Notice of Decision

The decision of the First-tier Tribunal discloses an error on a point of law and is set aside. The appeal will be re-made by the First-tier Tribunal. For the avoidance of doubt, there is no challenge to the FtT's findings on the historic aspect of the Appellant's asylum claim and there is no challenge to the Article 8 ECHR claim.

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 his 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 C E Roberts Date 18 November 2016

Deputy Upper Tribunal Judge Roberts