Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/01694/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2017

On 20 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

RAH
(ANONYMITY DIRECTION made)

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation

For the Appellant: Ms S. Gunamal, Morgan Pearse Solicitors
For the Respondent: Mr P. Nath, Home Office Presenting Officer

Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.

DECISION AND REASONS

1. In a decision promulgated on 3 February 2017 I set aside the decision of the First-tier Tribunal. I now remake that decision.

Background

2. The appellant, who is Kurdish and a citizen of Iraq born on 1 June 1998, entered the UK clandestinely in June 2015 and, upon being encountered by the police, applied for asylum.

3. The appellant’s claim, in summary, is that it is not safe for him to return either to his village near Kirkuk or elsewhere in Iraq, including Baghdad and the Iraqi Kurdish Region (IKR) because (a) he is at risk as the son of a Ba’ath party member; and (b) the level of violence makes it unsafe for him anywhere in Iraq. He further argues that internal relocation to Baghdad or the IKR, even if safe, would not be reasonable.

4. On 5 February 2016 the respondent refused the appellant’s application for asylum and/or humanitarian protection.

5. Most of the factual circumstances are not in dispute. The parties are in agreement that:

a. The appellant is a national of Iraq who is Muslim, Kurdish and speaks Kurdish Sorani.

b. The appellant is from a village near Kirkuk.

c. ISIS attacked his village and abducted his father.

d. His village is in a contested area where civilians face a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.

6. The areas of dispute are:

a. Whether the appellant’s father was a member of the Ba’ath party and, if so, whether the appellant faces a risk on return to Iraq as a consequence;

b. Whether it is feasible to return the appellant to Iraq; and

c. Whether the appellant can relocate within Iraq to either Baghdad or the (IKR).

7. The burden of proof is on the appellant to the lower standard applicable in asylum claims.

The Hearing

8. The appellant gave oral evidence through an interpreter. He maintained that his father was in the Ba’ath party and this puts him at risk throughout Iraq. The only source for his knowledge about his father’s connection to the Ba’ath party was his mother telling him.

9. The appellant stated that he has some limited understanding of Arabic but his only language is Kurdish Sorani.

10. He stated that, despite giving information to the Red Cross in order to locate them, he does not know the whereabouts of his family and has not had any contact with them since leaving Iraq.

11. He also stated that he left school at age 9 to work with his father in the fields and that he does not read or write Kurdish Sorani well (although reading is better than writing).

12. He stated that he has never been to Baghdad. His mother has sisters who he believes lived in Baghdad when he was younger but he does not know where they are now.

13. Since coming to the UK he has been studying English but his current knowledge of the language remains limited.

14. He claims to have no Iraqi identification documents.

Submissions

15. Mr Nath argued that the appellant had not been consistent about his father’s alleged Ba’ath party connection, not having mentioned it in his initial interview when claiming asylum. He also contended that there was no evidence to corroborate the claimed involvement with the Ba’ath party.

16. He further argued that even if the appellant’s father was a Ba’ath member, there was no evidence to indicate the appellant would face a risk as a result.

17. Mr Nath acknowledged that the appellant came from an area where he would face a risk of violence but contended that internal relocation to Baghdad was not unreasonable and that it would be safe for the appellant in Baghdad. There was, he argued, nothing to show he would be at risk in Baghdad or unable to cope there upon relocation.

18. Ms Gunamal highlighted that the appellant was a minor when he came to the UK and his screening interview needs to be considered in that light. She argued that the appellant has explained about his father and it is not unreasonable that he lacks corroborating evidence or failed to mention it when questioned as a minor who would not have appreciated the significance. His account is overall consistent and he should be given the benefit of the doubt.

19. Ms Gunamal argued that the security situation has worsened in Baghdad.

20. She emphasised that the appellant has no family to support him and would be alone in Baghdad without support or documentation, and with only a limited knowledge of Arabic. He would be unable to travel safely to his home village and therefore unable to obtain documentation (as these could only be obtained in his local area).

Findings and Analysis

21. I have reviewed all of the evidence that was before the First-tier Tribunal and my analysis is based on this as well as the further evidence and submissions before me.

22. Having carefully reviewed the objective evidence, and noted the findings in BA (Returns to Baghdad Iraq) CG [2017] UKUT 18 (IAC), I am satisfied that, despite the changing situation in Iraq, AA (Article 15(c) Iraq CG [2015] UKUT 544 (IAC) should not be departed from.

23. In AA it was explained, inter alia, that:

a. all Iraqis who are not former residents of the IKR will be returned to Baghdad;
b. an Iraqi will not be returned if he is not in possession of a current or expired Iraqi passport or a laissez passer;
c. Risk can arise from not having a Civil Status Identity Card (CSID) but it will only be where return is found to be feasible that the issue of documentation will be able to play a part in the determination of the appellant’s entitlement to protection (paragraph 168);
d. Where return is not feasible, a claim for protection can succeed insofar as 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 (paragraph 169).

24. The appellant stated, and I accept, that he does not have a current or expired Iraqi passport, or a laissez-passer. Accordingly, as with the appellant in AA, his return to Iraq is not currently feasible.

25. The issue to determine, therefore, is whether the appellant would be at real risk of persecution or serious harm irrespective of the lack of documentation (see paragraphs 168 -170 of AA).

26. The appellant claims that he is at risk because his father was a Ba’athist. I accept that the appellant’s mother told him that his father was a Ba’ath party member and that she told him that this put him and the rest of the family at risk. I also accept that the appellant genuinely believes he is at risk because his father was a Ba’athist.

27. However, I do not accept that the appellant is, in fact, at risk because his father was a Ba’athist. Firstly, he would be returned to Baghdad, a city in which he is not known. The likelihood that anyone would identify him as the son of a Ba’athist is vanishingly small. Secondly, and in any event, the objective evidence does not support that he would be at risk even if it became known that his father was a Ba’athist. The Home Office’s Country Policy Information Note Iraq, Ba’athists November 2016 states at paragraph 2.3.10 that:

“A person may claim they are at risk because they are related to someone involved in the Ba’ath Party, A person in these circumstances will not, in general, be at risk of serious harm or persecution for this reason. However, each case must be assessed on its merits.”

28. There is no objective evidence before me which indicates this is not an accurate assessment of the current position in Iraq.

29. The appellant has not put forward any evidence, or made any arguments, that would serve to show why his particular circumstances put him at risk when generally being a relative of a Ba’ath party member does not give rise to a serious risk of persecution. Accordingly, the appellant is unable to succeed in an asylum claim on the basis of his father being a Ba’athist.

30. The remaining issue is whether the appellant faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.

31. It is clear from AA, and was common ground before me, that the intensity of conflict in the appellant’s home area is such that he would be at risk of serious harm within the scope of Article 15(c) in that region solely on account of his presence there. However, AA also makes clear that the degree of conflict in Baghdad City and in the IKR is not sufficient to engage 15(c). Ms Gunamal argued that the situation in Baghdad has worsened since AA. However, the objective evidence placed before me does not justify a departure from the conclusions in AA about safety in Baghdad city.

32. As it would not be unsafe for the appellant to be returned to Baghdad City or the IKR, in order to succeed in his claim he needs to show that it would be unreasonable or unduly harsh for him to relocate to either Baghdad City or the IKR.

33. The conclusion of AA is that it will not generally be unreasonable or unduly harsh for a person to relocate to Baghdad but an assessment requires consideration of a number of factors, including whether the appellant speaks Arabic, has family or friends in Baghdad who will be able to accommodate him, can find a sponsor to access a hotel room or rent accommodation, is from a minority community, and whether there is support available. Other relevant factors are whether the appellant is a lone female (which clearly is not the case here) and whether he can obtain a CSID (which is excluded from the assessment where, as here, the appellant’s return is not feasible).

34. If an appellant who is Kurdish is returned to Baghdad (as would occur in this case), whether it would be unduly harsh to expect him to travel to, and then live in, the IKR is a fact sensitive question, involving an assessment of the practicalities of travel, the likelihood of securing employment in the IKR and the availability of family and friends in the IKR.

35. The evidence before me, which I accept, is that the appellant has limited understanding of Arabic, is poorly educated with limited literacy (having left school at age 9), has no skills that would assist him in finding work in Baghdad (he is learning English in the UK, but it is not of a high standard that might lead to work opportunities), has never been to and has no familiarity with Baghdad, and does not have family or friends in Baghdad who would be able to support him, financially, emotionally or otherwise. Taking these factors together and applying AA, I am satisfied that internal relocation to Baghdad would be unduly harsh.

36. Similarly, because of the appellant’s lack of education and skills, lack of familiarity or experience of the IKR, and the absence of any support network from friends or family, I find that relocation of the appellant to the IKR would also be unduly harsh, even if he could safely travel there from Baghdad City.

37. I conclude, therefore, that the appellant cannot be returned to his home area because of the risk of indiscriminate violence which engages Article 15(c) and that it would be unduly harsh to expect him to relocate within Iraq.

Decision

38. The appeal is allowed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 18 April 2017