Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01265/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 7th February 2017
On 15th February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

W A M SAEED
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr T Haddow, instructed by Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a decision by First-tier Tribunal Judge Mr P A Grant-Hutchison, promulgated on 9th August 2016, dismissing his appeal on asylum and on all other grounds.
2. The grounds of appeal, briefly stated, are as follows.
3. The First-tier Tribunal erred (i) at paragraph 16, by saying that an expert report by Dr Fatah at paragraphs 127 to 131 was "not quite on all fours with AA", without giving reasons; (ii) at paragraph 17, by failing to give anxious scrutiny to factors governing whether the appellant's return would be unduly harsh, in terms of AA, in particular in relation to securing employment - reliance on one factor alone, being "young, healthy and resilient", was insufficient; and (iii) by failing properly to consider the expert report of Dr Fatah at paragraphs 105 to 122 which went specifically to the practicality of entering the IKR and the likelihood of employment.
4. UT Judge O'Connor granted permission on 15th December 2016, considering it arguable that the FtT erred in failing to give lawful consideration to the matters identified at paragraph 204(20) of AA; by failing to consider the practicalities of the appellant being able to travel from Baghdad to the IKR without ID documentation; and by failing to consider the likelihood of the appellant obtaining employment in the IKR in the context of the evidence provided in an expert report by Dr Fatah, or alternatively by failing to provide reasons for its conclusion on this issue, given Dr Fatah's evidence.
5. As Mr Haddow helpfully noted, the relevant factors are set out in AA at headnote 20, at paragraph 171, and at paragraph 204(20); each of those references, used variously throughout the case papers, is effectively to the same matter.
Submissions for appellant.
6. As to ground 1, Mr Haddow accepted that there is indeed little difference between the terms of AA and of the expert report, although the report does draw attention to the important factors in this case, which the judge overlooked.
7. The nub of the grounds was in grounds 2 and 3, which could be taken together; the judge stated too stringent a test for relocation, and in any event erred in its application to the facts of the case.
8. The judge misstated the test in Januzi at paragraph 15, where he said that the test was whether the appellant "would face conditions such as utter destitution or exposure to cruel inhuman treatment threatening his most basic human rights". Reference to Januzi showed that such a description fell at the far end of the spectrum, and was not the test. That was more accurately to be found at page 457 of the judgment, [2006] 2 AC 47 G-H,
The words 'unduly harsh' set the standard... if the claimant can live a relatively normal life... judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.
9. Another misstatement by the judge is at paragraph 17, where he said that "on the assumption that the appellant can [travel between Baghdad and the IKR] the key question is, is it unduly harsh for the appellant to live with a considerable degree of uncertainty as to whether he can remain in the IKR." The appellant's legal entitlement to remain within the IKR is not the sole key, but only one of several considerations.
10. These two misstatements should not be taken out of context, and might not by themselves have been fatal; but the decision failed to deal with the relevant factors identified in AA and in the respondent's Country Information Guidance.
11. AA holds that whether a Kurd, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Erbil by air); (b) the likelihood of securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
12. The judge accepted at paragraph 17 that the appellant has no connections in the IKR. The significance of this was apparent from AA and from the expert report, in particular at paragraphs 118, 120 and 121. As to travel, the decision contained no review of central matters such as affordability, availability of necessary documentation, and whether the appellant might travel by air or by road. It was accepted that there had been very little evidence before the judge on these matters, although the expert report indicated that there were flights. Fundamentally, there was no consideration of the practicalities. The judge simply proceeded at paragraph 17 explicitly on an assumption, which he was not entitled to make. That was not an adequate basis for a decision. If there were shortcomings in the evidence, the judge should have made directions for the parties to bring the necessary evidence before him on which to determine the point. The third factor, employment, was dealt with in the expert report at paragraphs 120, 121 and 122 and by various significant evidence in the respondent's country information. The judge's total consideration of the point was in the description of the appellant as "young, healthy and resilient" which did not amount to adequacy of reasoning.
Outcome.
13. Mr Matthews conceded that the decision errs in law. Parties agreed that in consequence there should be a remaking of the decision in the FtT.
14. In view of the way the case developed, it is not necessary to decide whether the judge ought to have given the parties any further opportunity to bring evidence, or how the case ought to have been resolved on such evidence as there was.
15. The record above of the grounds and submissions should alert parties to the further evidence and analysis which may be required at the next hearing in the FtT.
16. The decision of the First-tier Tribunal is set aside. None of its findings are to stand, other than as a record of what was said on that occasion.
17. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
18. The member(s) of the FtT chosen to consider the case are not to include Judge P A Grant-Hutchison.
19. No anonymity direction has been requested or made.
20. Parties are directed to provide to the FtT, and copy to each other, not less than seven days in advance of the next hearing, a clear summary and schedule of references to the expert reports, background evidence and other materials on which they respectively rely in relation to the assessment the FtT is required to make in terms of headnote 20 of AA.
21. Both parties have a responsibility in this respect, so adverse inferences may be drawn, either way, in case of default.

14 February 2017
Upper Tribunal Judge Macleman