Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01650/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 December 2016
On 27 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

KT
(ANONYMITY DIRECTION MADE)

Respondent

Representation:

For the Appellant: Ms A Brocklesby-Weller, Home Office Presenting Officer.
For the Respondent: Mr R Rai, of Counsel, instructed by Arlington Crown Solicitors

DECISION AND REASONS

Anonymity

1. The First-tier Tribunal made an anonymity order. The order remains appropriate as this is a protection claim.

Introduction/Background

2. This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge C H Bennett) allowing the appeal of KT against a decision made on 3 February 2016 refusing his protection claim. In this decision I will refer to the parties as they were before the First-tier Tribunal, KT, as the appellant and the Secretary of State as the respondent.

3. The appellant is a citizen of Iraq born on 23 April 1979. He arrived in the UK on 17 October 2007 and claimed asylum on arrival. His application was refused on 28 April 2007 and his appeal was subsequently dismissed on 24 July 2007. The appellant had exhausted all rights of appeal by 25 August 2008. What followed thereafter was a series of further representations made to the respondent, the last being made on 2 October 2015, on the basis of the prevailing country conditions and the appellant's relationship with a British citizen.

4. While the representations were accepted by the respondent as a fresh claim, the application was refused for the reasons set out in the decision letter of 3 February 2016. There was no dispute the appellant was an Iraqi national, but it was not accepted that he held a genuine subjective fear of return to Iraq on account of his past experiences. Reference was made to an earlier asylum appeal determination dismissed on 24 July 2007, in which the judge rejected the appellant's claim that he was a member of the Iraqi army and was at risk on return for that reason. As the appellant had not shown any reason why he was in need of international protection it was the respondent's view that the appellant could safely return to Baghdad and that it was not unduly harsh to expect him to do so.

5. The judge's findings of fact can be found at [21]-[29] & [36] of his decision. Essentially, the judge found that the appellant originates from Hawije in the governorate of Kirkuk; that he was divorced from his first wife; he had no contact with his family or relatives in Hawije; that he had no identity documents; he had no relatives or friends in Baghdad or any other area of Iraq outside Kirkuk. The judge further found that the appellant was in a genuine relationship with his partner.

6. On the basis of these findings the judge concluded that there was an Article 15(c) risk to the appellant in his home area; that he could not obtain a CSID, and that his return was not therefore feasible. The judge found that as the appellant could not obtain a CSID and, had no one to vouch for him, that it was unreasonable and unduly harsh to expect him to relocate to Baghdad, and that, he would face a real risk of destitution. Accordingly, the judge found that the appellant was entitled to humanitarian protection. The judge accepted the appellant had established a private life with his British partner who he had married in accordance with Sha'ria Law, and concluded that they would be very significant difficulties in continuing their life together in Iraq, and that those difficulties could not be overcome or would cause serious hardship. The judge concluded that there would be very significant obstacles to the appellant's integration in Iraq contrary to paragraph 276ADE of the Rules and thus concluded that removal would be disproportionate.

7. The application for permission to appeal contended that the judge misdirected himself in law and that his decision lacked adequate reasons. Essentially, it was argued as the appellant was without documentation and his return was thus currently not feasible, it was not open to the judge to allow the appeal as he did.

8. Permission to appeal was refused by the First-tier Tribunal, but on renewal, Upper Tribunal Judge Kebede granted permission on the ground that the judge's decision was arguably inconsistent with the guidance in AA (Article 15(c)) [2015] UKUT 544.

Submissions

9. At the hearing before me, Ms Brocklesby-Weller, submitted that the judge's decision was premised on his finding that the appellant's return was not currently feasible. She submitted that Article 15(c) was parasitic on return being feasible. It was the respondent's case that a protection claim or, any other claim for that matter, could not succeed for an appellant that was without documentation. The judge having found the appellant fell into that category was not required to consider the claim further as per head note 7 in AA.

10. For the appellant, Mr Rai, relied on his skeleton argument and submitted that the judge applied the country guidance and that his findings were open to him on the evidence. He pointed out that the respondent in her refusal considered the claim on all grounds despite her acceptance that return was not currently feasible. He submitted that the judge applied AA correctly, adopted a fact-specific approach and considered the appellant's individual characteristics.

11. I reserved my decision which I now give with reasons.

Assessment of Whether there is an Error of Law

12. I must consider whether the First-tier Tribunal erred in law such that its decision should be set aside. I am not satisfied that it did so err for the following reasons.

13. The judge's consideration of the respective position of the parties is detailed. Throughout his consideration the judge makes extensive references to AA and to HF (Iraq).

14. There is no challenge to the judge's findings of fact, which are unaffected by any error of law. The appellant reigns from Kirkuk, which is a contested area. He is without documentation and there is no challenge to the judge's conclusion that return for this appellant is currently not feasible.

15. The respondent's position in the refusal letter was that notwithstanding the infeasibility of return, the appellant could safely internally relocate to Baghdad. The judge found it unreasonable or unduly harsh to expect the appellant to do so in order to avoid indiscriminate violence in his home area of Kirkuk. In reaching that conclusion the judge was plainly aware of the issues concerning feasibility of return - see [19], [20], [26]-[27], [30] & [33] - and took account of relevant factors to be considered when the question of internal relocation arose. The judge made very detailed reference to the guidance in AA and HF (Iraq). Crucially, he reminded himself that this was not a case where the appellant relied solely on not having documents but that he came from a contested area and had no family or friends in Iraq. The judge thus concluded that the appellant was entitled to humanitarian protection.

16. Nevertheless, the respondent's position at the hearing, as expressed by Ms Brocklesby-Weller, was that the judge erred by not taking proper account of the guidance in AA in respect of the appellant's lack of Iraqi identity documentation. In this regard Ms Brocklesby-Weller relied, in particular, on paragraph 7 of the head note to AA, which states:

"7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from absence of Iraqi identification documentation, if the Tribunal finds that P's return is not currently feasible, given what is known about the state of P's documentation."

17. Ms Brocklesby-Weller's argument was that the judge erred in proceeding to consider the protection claim and any other basis of claim because, as the appellant's return was not feasible, the issue of an alleged risk of harm arising from absence of Iraqi identification document did not require to be determined. Ms Brocklesby-Weller argued that the decision should be re-made in its entirety on the basis that the appellant was an undocumented Iraqi and dismissed. I do not agree. In my judgement, the judge correctly applied the guidance and gave cogent reasons for allowing the appeal on all grounds. At [34] the judge analysed the appellant's position and found his case fell within the exception envisaged in AA & HF (Iraq), namely, "the impossibility of return could be said to make it unnecessary to hypothesise any risk to an appellant in the country of proposed return, whether or not stemming from a lack of documentation or similar problem. We do not, however, consider that the Court can be taken to have intended such a reading. There may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of lack of documentation." [AA at [169]].

18. In the decision of AA itself, the appellant was also a Kurd from Kirkuk. The Upper Tribunal accepted that the appellant would face an Article 15(c) risk if he returned there. There was no evidence that the appellant had access to Iraqi identity documentation, and the Tribunal found that he would not be returnable until he was able to supply sufficient documentation to the Iraqi Embassy in London. Nevertheless, the Tribunal again stated, at [207], the following in relation to internal relocation:
"Given that the appellant's return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraph 169 and 170 above, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation and that an applicant should not be precluded from pursing a claim to international protection in circumstances whereas the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person's actual return unfeasible."
19. The Upper Tribunal then remitted the appeal to the First-tier Tribunal for findings of fact to be made on these matters, including the question of relocation to Baghdad.
20. Accordingly, it is clear from the decision of the Upper Tribunal in AA that in some cases it will be appropriate to consider the question of humanitarian protection and internal relocation even for an undocumented Iraqi. It is not necessarily an error of law to do so, as Ms Brocklesby-Weller seemed to suggest. In this appeal it should be observed that the appellant's risk of serious harm arises not from his lack of documentation but from the indiscriminate violence in his home area of Kirkuk, similarly to the appellant in AA.

21. In the present appeal the judge found that there was no evidence the appellant had family members or friends in Baghdad able to accommodate him, or any sponsor there. There was no evidence of any support available for him there taking into account, in particular, that he did not have a CSID and would not be able to obtain one. According to AA, a person's ability to obtain a CSID is likely to be severely hampered if the person is unable to go to the Governorate where his or her CSID was originally issued because it is an area of conflict. Without a CSID there is a serious possibility that the appellant would not be able to access financial systems, employment, education, housing and medical treatment.

22. If I have understood Ms Brocklesby-Weller's argument properly, it was that in terms of AA the appellant's lack of a CSID or any other Iraqi documentation would make his return to Iraq unfeasible and therefore it was not necessary to consider his entitlement to protection. For the reasons I have already given, I do not consider Ms Brocklesby-Weller's argument is correct. It is clear that the lack of a CSID is relevant both to the feasibility of return and to the question of internal relocation. I am satisfied that the appellant's lack of a CSID is a crucial factor in finding it would not be reasonable to expect the appellant to internally relocate to Baghdad.

23. Similarly, the judge gave cogent reasons for finding that the respondent's decision was not proportionate, on a hypothetical analysis, in the absence of removal directions. The judge was entitled to take into account the appellant's lack of documentation and, in my judgement, it was open to the judge to find that a return would be contrary to paragraph 276ADE, in view of the fact that the appellant came from a contested area and would be destitute in Baghdad without support. At [62] the judge noted that he was not precluded from reaching that finding notwithstanding the fact that the appellant's return was not feasible because the Upper Tribunal's guidance at paragraph 7 of AA was in respect of a protection claim. That is a matter which the grounds and Ms Brocklesby-Weller failed to address.

24. In my judgement, this is a thorough and well-reasoned decision. The judge reached his conclusions taking fully into account applicable jurisprudence and guidance, and reached a decision on the evidence that is sustainable.

Decision

The First-tier Tribunal did not err in law and its decision to allow the appeal stands.

Signed Date:

Deputy Upper Tribunal Judge Bagral