Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01615/2019

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On the 23 June 2022
On the 08 August 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between

TKH-A
(Anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr H Singh on behalf of Burton & Burton Solicitors.
For the Respondent: Mr C Bates, a Senior Home Office Presenting Officer.

DECISION AND REASONS

1. The appellant is a citizen of Iraq born on 1 January 1997 who claimed a real risk on return to Iraq based upon his having a sexual relationship with a girl, named S, his being discovered by S’s younger brother with the girl, resulting in a fear he will be killed on return to Iraq as sexual relations with unmarried women is against Sharia law. The appellant also claimed a fear of the general situation in Kirkuk.
2. The appellant left Iraq on 1 May 2015, claiming to have crossed the border from Iraq by boat and to have continued his journey by car, arriving in Turkey on 3 May 2015, leaving Turkey on 5 May 2015 and travelling to Greece, where he stated he was detained for two months. The appellant’s fingerprints were taken in Greece on 7 May 2015. The appellant left Greece after two months and travelled to the UK in a lorry, although on 2 August 2015 there is a further EURODAC match showing the appellant was fingerprinted in Hungary on 2 August 2015. The appellant arrived in the UK on 19 August 2015 and claimed asylum on 21 August 2015.
3. It was found by the First-tier Tribunal that the appellant’s failure to claim asylum in either Greece or Hungary, despite having come into contact with the authorities in both countries, undermined the credibility of his account and was not consistent with the actions of a genuine refugee in need of international protection.
4. It was also found the appellant’s oral evidence in relation to this claim to have been discovered in S’s bedroom in a state of undress by her younger brother was irreconcilable with his witness statement, which was found to go to the core of the appellant’s account and served to fundamentally undermine the credibility of his claim.
5. The First-tier Judge found it inconsistent that the appellant claimed he had not previously approached S even at the school they both attended because he was afraid her father, a Captain in the police, would find out, yet he claims to have entered the family home of a senior police officer mid-morning when it was likely that local people will be going about their business and when he will be seen.
6. The First-tier found the appellant’s account “extremely unlikely and implausible” and that the appellants evidence regarding when he first met S “at best confusing”. It is recorded he claimed it was in 2014 but then also said 2015. The appellants explanation for this discrepancy was not accepted.
7. As a result of the Judges concerns the appellant’s evidence regarding events in Iraq was dismissed in its entirety.
8. The First-tier Tribunal Judge noted the appellant’s evidence he did not have his CSID claiming he had had one in Iraq but that he did not know what happened to it. The Judge also noted an answer the appellants gave in his asylum interview in which he sated he could obtain his personal ID from Iraq although a further discrepancy was noted in that he also claimed he did not have any contact with his family including his uncle in Kirkuk since he left Iraq in 2015.
9. There is no sustainable challenge to the Judge’s findings in relation to the lack of credibility in the appellant’s claim in relation to S.
10. Permission to appeal was granted by another judge of the Upper Tribunal on 16 September 2019 and the decision of the First-tier set aside in a decision of Deputy Upper Tribunal Judge Lewis promulgated on 5 February 2020 in relation to the documentation point.
11. It is important at this stage to record two developments that occurred in relation to returns to Iraq being the promulgation of the latest country guidance decision reported as SMO & KSP [2022] UKUT 000110 and the change the Secretary of State’s policies in that returns to Iraq are now to any airport within Iraq including to the IKR.
12. It is recorded by Judge Lewis that the appellant’s representative before him at the error of law hearing on 1 January 2020, accepted the appellant will be able to obtain a laissez passer to enable him to return to Iraq. That is factually correct leaving the real question in this appeal the issue of what would happen if the appellant was returned and, as an Iraq Kurd, was able to pass through the airport in the IKR.
13. The appellant stated that his local Civil Register Office is in Kirkuk City in reply to a question put to him by Mr Bates. The appellant repeated his claim to have no contact with his family, to have lost his CSID, and to be unable to obtain a copy.
14. The appellant was asked why he waited until February 2002 to try and contact his family to which he claimed he did not know he could try. When the appellant was asked whether there is any reason why he thought his family had left Kirkuk, he confirmed that he did not have any information about that as he had no news about his family.
15. If the appellant is returned to the IKR the country guidance case reaffirms that he will have to travel to his local Civil Register Office to obtain replacement identity documents and, if necessary, to provide the required biometrics for the new INID.
16. Mr Bates referred to the up-to-date Country Policy and information note: internal relocation, civil documentation and returns, Iraq, May 2002 (May 2002 CPIN) at paragraph 2.6.9 which reads:

2.6.9 However, those who return to Iraq or the KRI without a CSID or INID, cannot obtain one via a family member on arrival and who would be required to travel internally to a CSA office in another area of Iraq or the IKR to obtain one would be at risk of encountering treatment or conditions which are contrary to paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the ECHR. In these cases, a grant of Humanitarian Protection is therefore appropriate (unless the person is excluded from such protection).

17. The core issue today is therefore an even more narrow point; which is whether, in light of the rejection of the appellant’s credibility concerning all other aspects of his claim by the First-tier Tribunal, which regarding his core account is upheld, his claims about his inability to obtain his CSID and to be unable to contact his family are true.
18. If the appellant has access to his CSID he would not need to redocument himself.
19. It was submitted by Mr Bates that it was important to consider the reasons why the appellant had left Iraq which had not been shown to be as a result of a need for international protection but was more likely to be for economic reasons. That is a sustainable submission in light of the fact the core claim has been proven not to be true.
20. It was the family who paid for the appellant’s trip to the UK and insufficient evidence has been provided by the appellant to establish as credible any suggestion that the family would destroy his important identity documents.
21. The appellant in his asylum interview, in reply to question 48 when he was asked whether he travelled alone, stated he travelled with someone – an agent who was paid by his father. It is implausible that the appellant would not have maintained contact with his family as it is known the modus operandi of the people smugglers is to ensure that contact takes place between the person being smuggled and their family when they arrive at the intended destination, in this case the UK, as at that point the balance of the fee paid for the smuggling becomes due.
22. It also appears implausible that the family would go to the substantial cost of paying for the appellant to be brought the United Kingdom without ensuring that he had arrived, that he is OK, has not experience any difficulties or issues, and continues not to do so.
23. I accept that there is justification in the submission by Mr Bates that considerable caution has to be exercised in light of the fact the appellant has been proven to be willing to lie and mislead to try and achieve his desired immigration aims of being permitted to remain in the United Kingdom.
24. Mr Singh on behalf of the appellant asserted that the Upper Tribunal should find that the appellant is credible in relation to issue of documentation and contact with his family.
25. Reference was also made by Mr Singh to an updated statement provided by the appellant that he had travelled to the Iraqi Embassy in Manchester and ask for identity documentation that they told him they could not provide. I have read the statement and seen the photographs which show the appellant did travel to the Embassy but if he did not provide sufficient evidence of the type required by the staff at the embassy, as referred to in the country guidance caselaw, to establish that he is genuinely who he claims to be, and therefore a person entitled to the assistance of the consular authorities, travelling to the Embassy and asking a simple question to which the same reply many Iraqi nationals travelling to the Embassy without the required documents or application have received, is not surprising.
26. It is argued by Mr Singh that as the appellant cannot obtain the necessary documents he must succeed.
27. It is accepted that there is an international airport in Kirkuk following the handover of the former USAF military base to the Iraqi authorities and considerable investment by domestic organisations to ensure its conversion to an international airport.
28. At the date of the appeal hearing Mr Bates confirmed that, by reference to research undertaken on the website Sky Scanner, there is no record of any direct international flights arriving at or departing from Kirkuk at this time. Had such evidence been available the Secretary of State could have returned the appellant directly to Kirkuk Airport with the use of a laissez passer from which he could walk to his local Civil Registration office, if required.
29. The First-tier Tribunal’s conclusion in relation to the CSID, recorded at [38] were in the following terms:

“The reasons set out I do not accept that the Appellant cannot contact his family in Iraq. He has given very confusing evidence regarding where his CSID card is, and taking all these factors together, I find it more likely than not that either his CSID cardies with his family in Iraq and can be sent to him in the UK or his family in Iraq can assist him to obtain replacement ID documents in Iraq before he is returned. Therefore I am satisfied that returning this Appellant to Iraq is feasible.”

30. The difficulty in that analysis, identified at the error of law hearing, was the First-tier Tribunal Judge’s finding that it was “more likely than not” which was said to be an application of the civil standard of proof.
31. It was also noted in the error of law hearing that the current country guidance cases established it is not feasible to suggest that a replacement ID document could be obtained in Iraq before return, leaving the only issue being whether the appellants claim not to be able to obtain the CSID with the assistance of his family, or not to have the document himself, is credible.
32. In AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) the Tribunal held that in assessing the effect of an appellant’s lies (whether to the Secretary of State or a judicial fact-finder), it is unnecessary to construct a prescribed set of steps from the judgments of the Supreme Court in MA (Somalia) [2010] UKSC 49, particularly if they might lead to a “mechanistic” rather than a holistic approach. The significance or “negative pull” of the lie will possibly depend not only on the strength of the background evidence but on whether the lie – looked at in its own terms – is about an issue that is central to the disposition of the appeal. Where a person tells lies about issues which that person thinks are important to their claim but which, because of the passage of time or otherwise, are not, it is open to the Tribunal, given the earlier lies, to approach with caution the person’s evidence regarding matters that are central to the current claim.
33. The current claim is an assertion by the appellant that he will return to Iraq undocumented.
34. Having undertaken a necessary realistic assessment I find as follows:

a. the burden of proving the appellant’s assertion in relation to documentation falls upon the appellant which must be established to the lower standard of proof applicable to protection claims.
b. The appellant has been inconsistent and lied in his evidence, as identified by the First-tier Tribunal, resulting in the adverse credibility findings particularly in relation to the core of his protection claim.
c. There is no credible evidence, as found by the First-tier Tribunal, that the appellant faces a risk on return for the reasons he claimed.
d. The appellant’s evidence regarding his documents is not consistent.
e. The appellant has failed to provide sufficient evidence to adequately explain that his account in relation to his CSID and lack of contact with his family is true.
f. The plausibility of the appellant’s claim to have no contact with his family and why he could contact his uncle to send his CSID to him (as he stated he could), from which he later resiled, undermines the credibility of his claim.
g. Having considered the sustainable findings regarding lack of credibility concerning his core claim, and the above matters holistically, I find the appellant has failed to discharge the burden of proof upon him to the required standard to show that his claims regarding his inability to contact his family and to obtain his CSID from them, either having it posted in advance or with them handing it to him by meeting him at the airport in Iraq on return, is credible.

35. The appellant has failed to establish he will be returning as an undocumented Iraqi national. On that basis appeal must be dismissed.

Decision

36. I dismiss the appeal.

Anonymity.

37. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated 6 July 2022