Tribunal decisions

The decision

IAC-AH-KEW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01453/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 30th January 2017
On 8th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

N H
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Radford (Counsel)
For the Respondent: Mr I Jarvis (Senior Home Office Presenting Officer)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Butler, promulgated on 20th September 2016, following a hearing at Sheldon Court on 26th August 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant's Claim
2. The Appellant's claim is that he was raised in the village of Bazyan where he stayed until 2012. At the time he was in love with a girl in the village and had asked her family if he could marry her a few times but they had refused. After the relationship got more intimate, they threatened to kill him. He left Bazyan and moved to an area just outside Kirkuk but after about two years ISIS came to the area and the family moved into Kirkuk for their own safety. In Kirkuk the Appellant stated that he and his cousin would often sit outside the house during the day talking and smoking. His cousin was particularly vocal in his criticism of Islam. They were threatened. They made arrangements to leave and paid an agent to assist them.
The Judge's Findings
3. The judge acknowledged that the refusal letter had said that the Appellant had lived in a contested area of Iraq but it was now considered reasonable for him to relocate internally. The decision in AA (Article 15(c)) Iraq CG [2015] UKUT 544 was relied on in acknowledging that the Appellant could not safely return to Bazyan, but he could return directly to the Kurdish Region of Iraq (KRI). It was noted that it would not be possible for the Appellant to obtain a CSID card and a nationality certificate to enable him to return to the KRI where there was no Article 15(c) risk to ordinary civilians. The judge found the Appellant's claim to be inconsistent and to be a fabrication. The judge did not find that the Appellant had a well-founded fear of persecution from either ISIS or his girlfriend's family or a religious group in Kirkuk. It was held that it would be reasonable for the Appellant to return to the KRI because he was a Kurd and spoke Kurdish Sorani and was a Sunni Muslim. The judge held, "I do not find there is any reason why he could not return to Bazyan as I do not accept his account of problems with his girlfriend's family" (paragraph 41).
4. The appeal was dismissed.
The Grounds of Application
5. The grounds of application state that the judge wrongly found that it would be reasonable for the Appellant to relocate to KRI because this was not supported by the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 0544, because in that case it was held that only those formerly from the KRI will be returned there and all of the Iraqis would be returned to Baghdad. The Appellant was not originally from KRI. Second, that the judge erred in finding that there is no reason why the Appellant could not return to Bazyan because he had already found (at paragraph 10) that the Respondent had acknowledged in the refusal letter that the Appellant could not return to Bazyan as it was a contested area.
6. On 20th October 2016, permission to appeal was granted on the basis that whether the Appellant is returned to Bazyan or to Kirkuk both of these were contested areas according to the country guidance.
7. On 17th November 2016, a Rule 24 response was entered to the effect that the Secretary of State does not accept that Bazyan is in a contested area and that the judge moreover properly considered if the Appellant could relocate to the KRI and had applied the country guidance case accurately.
The Hearing
8. At the hearing before me Ms Radford, appearing on behalf of the Appellant handed up her helpful outline submissions in writing, and stated that she would rely upon these. First, the Appellant could not safely return to Bazyan in the light of the Secretary of State's concession that it would not be safe for him to do so. The refusal letter had stated at page 10, after reliance upon AA [2015] UKUT 00544, that "it is not considered sustainable to argue that you could safely return to Bazyan." This was repeated by the judge at paragraph 10 that "the Appellant could not safely return to Bazyan ..." Moreover, in summarising the Secretary of State's position (at paragraphs 25 to 27), the judge had mentioned no withdrawal of the concession regarding the position in Bazyan. Accordingly, the judge, in holding that the Appellant could return to Bazyan, had erred in law.
9. Second, as far as internal relocation to the IKR was concerned, the judge had erred yet again because there was no assessment of the range of factual issues that were required to be assessed in AA [2015] UKUT, in that there was no case by case consideration of the practicality of travel to IKR, the likelihood of securing employment there, the availability of family/friends in the IKR, and the possibility of obtaining a CSID before or reasonably soon after return to Iraq.
10. Third, as far as the country guidance on this matter was concerned, it was plain from paragraph 170 of AA [2015] UKUT 00544 that the Tribunal would need to know if an individual has a CSID. If return is feasible and the individual does not have a CSID, then adverse consequences could result for the Appellant which would breach possibly his Article 3 ECHR rights. These consequences would need to be considered if it was to be found that return was feasible. This was clear from the judgments in AA [2016] EWCA Civ 779 by Christopher Clark LJ and Sharp LJ. Moreover, whereas it could be said (at paragraph 171) that Kurds not from the IKR can get temporary admission to the IKR and can get permanent permission to stay there if they secure long-term employment, whether or not this was reasonably possible would be dependent upon (a) practicality of travel to the IKR, (b) the likelihood of securing employment, (c) the availability of assistance from friends and family in the IKR. All these matters were not in favour of the Appellant. He had no friends and family for assistance in the IKR and no reasonable prospects of securing employment.
11. Furthermore, in order to obtain a CSID in the UK, in circumstances where the individual does not have a passport and does not know his family registration volume and page number, a proxy will have to travel to the local office of family registration to obtain a new CSID, and that also placed the Appellant in extreme difficulty because he did not know his family registration volume and page number, and the prospect of a proxy travelling for him was not realistic on the facts of his case. In any event, it is the case (see paragraph 177) that if the home governorate is experiencing violence at Article 15(c) levels then this entire process will be "severely hampered" and this was the case here. The fact was that in order to obtain a replacement CSID in Iraq one would have to normally travel to the governorate (see paragraphs 179 to 186) where the family registration book is held. The success of doing so will depend on knowing the page and volume number of the book holding their information, and then one would have to persuade an official that one is the person named and that could be done on the basis of the availability of witnesses who could attest to this, all of which was highly improbable in the Appellant's case.
12. Finally, the Secretary of State's refusal letter had not specified the planned point of return. She had suggested that the Appellant may be able to return voluntarily to the IKR (see page 10) but she had also recognised that he is a Kurd originating from outside the IKR (see page 11) and in AA the Upper Tribunal had held that only Kurds formerly resident in the IKR would be returned there (see paragraph 204(5)). The judge himself had failed to identify any point of return and failed to consider whether the Appellant could practically travel to the IKR or not.
13. For his part, Mr Jarvis submitted that the judge at paragraph 41 had found it reasonable for the Appellant to return to the KRI. Even if there was an ambiguity in his assessment of whether Bazyan was a contested area or not, there was an alternative finding that the Appellant could return to the KRI, and this would salvage the decision. AA (Iraq) made it clear that Kurds who do not originate from the KRI can obtain a permit, and this can even be extended upon obtaining employment (see paragraphs 19 to 20 of the head note).
Error of Law
14. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law such that it falls to be set aside (see Section 12(1) of TCEA [2007]). My reasons are as follows. First, both Kirkuk, where the Appellant left to settle, and the village of Bazyan, where the Appellant was brought up, are contested areas and the judge was clear (at paragraph 10) that, "it was acknowledged that the Appellant had lived in a contested area of Iraq." The fact that the judge did not believe the Appellant's account of threats from his girlfriend's family or from religious groups in Kirkuk, or from ISIS, was nothing to the point as to whether the Appellant could return to Bazyan. Yet, the judge held that, "I do not find there is any reason why he could not return to Bazyan as I do not accept his account of problems with his girlfriend's family" (paragraph 41).
15. Second, in stating that the Appellant could find internal relocation, the judge has failed to consider the practicality of his travel to the IKR, the likelihood of his obtaining employment there, and the availability of family and friends who could provide him with assistance, all of which are factors that do not necessarily inspire confidence with respect to this Appellant, because the evidence has not been so found by the judge.
16. Third, the Appellant does not have a CSID, and does not know his family registration volume and page number, and there is no finding to the effect that this is so, such that he would have to elicit the support of a proxy to go on his behalf before he can actually return to the KRI.
17. Finally, the judge has not considered the obstacles to the Appellant obtaining re-documentation. There is no consideration of whether the Appellant has an expired or current Iraqi passport. There is no consideration of which office would need to provide him with the replacement CSID. There is no consideration of which family or friends can act as a proxy for him in the relevant regional office. And, there is no consideration of whether it would be safe for him to travel there. This leaves only the possibility of his return to Baghdad, but if this conclusion was to be arrived at, then the judge needed to consider how the Appellant would travel to and enter the IKR without a civil ID, and how he would then obtain his CSID from a "contested area." The Appellant would also have to provide witnesses in Baghdad's civil status court, where he would need to show that he knows someone, and would be able to invoke the process such that it could culminate in the provision of a CSID within a reasonable timeframe. These matters are for the most part addressed in the detailed head note of the decision in AA (Article 15(c)) Iraq CG [2015] UKUT 544, and on the whole they do not suggest, on the lower standard, given the findings that the judge has already made, that the Appellant can reasonably return in the manner suggested by the judge.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I re-make the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be determined by Judge other than Judge Butler under Practice Statement 7.2(b) because the nature of the fact-finding has been such as to require that there be a reconsideration of all these matters again. This appeal is allowed to that extent.
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 their 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 Date

Deputy Upper Tribunal Judge Juss 7th February 2017