Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01728/2019

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On the 16 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

aao
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr G Lee instructed by Braitch Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to Contempt of Court proceedings.
2. The appellant is a citizen of Iraq who comes from the IKR. He was born on 19 November 1985.
3. The appellant arrived clandestinely in the UK on 17 August 2018 and claimed asylum.
4. On 8 February 2019, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and under the ECHR.
5. The appellant appealed to the First-tier Tribunal. In a decision sent on 18 March 2020, Judge G Solly dismissed the appellant’s appeal on all grounds. The judge made an adverse credibility finding and rejected the appellant’s asylum and humanitarian protection claims on the basis that he was at risk as a result of his involvement with football in the IKR. Further, the judge found that the appellant would not be at risk on return under Art 3 of the ECHR because of a lack of ID documents, such as a CSID. Art 8 was not pursued before the judge.
6. The appellant sought permission to appeal on a single ground. He did not challenge the judge’s adverse credibility finding and her decision to dismiss his appeal on asylum and humanitarian protection grounds. The grounds contended, however, that the judge had erred in law in reaching her adverse decision in relation to the risk to the appellant of returning without proper documentation because she had failed to apply the relevant country guidance decision in SMO & Others (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC) which had been published after the hearing before the judge but before her determination was promulgated.
7. On 21 April 2021, permission having initially been refused by the First-tier Tribunal, the Upper Tribunal (UTJ Grubb) granted the appellant permission to appeal on that single ground.
8. The appeal ultimately came before me for hearing on 16 June 2022 at the Cardiff Civil Justice Centre. The appellant was represented by Mr Lee and the respondent by Ms Rushforth. Ms Rushforth indicated that she did not object to my determining the appeal even though I had been the judge who granted the appellant permission to appeal.
9. Ms Rushforth accepted that the judge had failed to consider the relevant CG case law and the issue of whether the appellant could obtain a new identity document, whether CSID or INID, before returning to Iraq. However, Ms Rushforth submitted that that error was not material as in the relevant paragraph in the judge’s decision, namely [105], the judge had found that the appellant had an Iraqi identity document in Iraq and was in contact with his family so, she submitted, he could obtain that document before returning. He did not require a new ID document.
10. Ms Rushforth accepted that if the judge’s finding in [105] was not that the appellant had access to a document in that way, then the failure to consider the relevant country guidance and engage with the issues surrounding the obtaining of a replacement document was a material error of law and that the decision, in that single regard, could not stand.
11. Mr Lee invited me to find that the judge’s reasoning in [105] was inadequate in that she failed to consider the relevant approach set out in SMO & Others and had not clearly found that, in any event, the appellant had (and could access) an existing ID document in Iraq. He submitted that the judge’s decision, on that issue alone, needed to be set aside and re-made although the remainder of the judge’s findings, which were not challenged, should be preserved.
12. The relevant paragraph in the judge’s decision dealing with documentation is [105] which is as follows:
“The appellant has had Iraqi identity documents, is in contact with his family in Iraq and I find he can redocument within a reasonable period. I therefore do not accept that current alleged lack of documentation gives rise to an Article 3 claim”.
13. The judge made no other reference to this issue in her findings and, so far as could be identified at the hearing, only refers to the appellant’s evidence at [90] that he could not obtain “another CSID”.
14. In my judgment, the judge has not made a clear finding that the appellant has an existing ID document in Iraq which, because he is in contact with his family, he could obtain in order to safely return to Iraq. The tense used by the judge in [105] – “has had” - does not clearly indicate a finding that those documents are currently being held in Iraq. More naturally, the tense suggests that the documents had been available to him, but are no longer. Indeed, the sentence goes on to find that the appellant can “redocument within a reasonable period”. That, of course, is only relevant if he is unable to obtain an existing ID document from Iraq. The second sentence in [105] again refers to the fact that the appellant has a “current alleged lack of documentation” but that it does not give rise to an Art 3 claim which, again, may well lead on from the end of the previous sentence which states that he could “redocument within a reasonable period”.
15. Since the judge does not set out any evidence upon which those findings are based, and which could then assist in interpreting precisely what the judge meant, I am not satisfied that the judge made a clear finding that the appellant can access an existing CSID document. Consequently, I reject Ms Rushforth’s submission that the judge’s error of law, in failing to consider the relevant CG case law in determining whether the appellant could obtain a replacement ID document, was not a material error of law. As I have said, it is accepted that the judge’s reasoning in [105] failed adequately to deal with the issues concerning whether the appellant could obtain a replacement CSID or INID prior to returning to Iraq applying the (then) CG decision in SMO & Others.
16. For these reasons, the judge materially erred in law in dismissing the appellant’s appeal.
17. It was accepted by both representatives that the remainder of the judge’s decision, excluding therefore only [105], should be preserved, including her findings of fact and her decision to dismiss the appellant’s appeal on asylum and humanitarian protection grounds. The only outstanding issue was whether the appellant would be at risk of ill-treatment contrary to Art 3 on the basis that he would not have a CSID or INID on return to Iraq.
18. Mr Lee invited me to remit the appeal to the First-tier Tribunal in order to make findings on that issue in the light of the evidence, including additional evidence that might be presented by the appellant including oral evidence. Ms Rushforth indicated that she would prefer that the decision be retained in the Upper Tribunal.
19. In my judgment, the proper disposal of the appeal is to remit it to the First-tier Tribunal. Having regard to para 7.2 of the Senior President’s Practice Statement, although there is a discrete factual issue to be resolved, the appellant has, in effect, not had a properly reasoned decision on that issue and further evidence (including oral evidence) is likely to be relied upon by the appellant at the re-making stage. The matter should, in my judgment, be determined by the First-tier Tribunal.
Decision
20. For the above reasons, the decision of the First-tier Tribunal involved the making of an error of law. That decision is, therefore, set aside.
21. The appeal is remitted to the First-tier Tribunal (to be heard by a judge other than Judge Solly) in order that the decision can be re-made solely in respect of Art 3 and the risk, if any, to the appellant arising from his return to Iraq without relevant ID documentation such as a CSID or INID in the light of the relevant CG decision, SMO and KSP (Civil status documentation, Article 15) CG Iraq [2022] UKUT 110 (IAC).
22. The other findings of the judge and her decision to dismiss the appellant’s appeal on asylum and humanitarian protection grounds are preserved. For the avoidance of doubt, para [105] is not preserved.

Signed

Andrew Grubb

Judge of the Upper Tribunal
16 June 2022