Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01795/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 3 April 2017
On 4 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SAFFER

Between

MSAK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Frantzis of Counsel
For the Respondent: Mr Diwyncz a Home Office Presenting Officer

DECISION AND REASONS

Background

1. 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 MSAK or any of his family members. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. I do so in order to preserve the anonymity of MSAK whose protection claim remains outstanding for the reasons that follow.

2. The Respondent refused MSAK’s application for asylum or ancillary protection on 8 February 2016. His appeal against this was dismissed by First-tier Tribunal Judge Moore (“the Judge”) following a hearing on 20 October 2016.

3. In summary, the Judge found that MSAK had established that he came from a contested area in Kirkuk in Iraq [37] and did not have an Iraqi passport or laissez passer and therefore would not be returnable to Baghdad [38]. He did not accept that it had been established he was a police informer or targeted by ISIS [28]. He found that his return to Iraq is feasible and the impact of the absence of documentation requires determination [38]. He could get a CSID soon after arrival in Iraq. His father and uncle live there and he can be provided with accommodation, support and assistance [39]. He speaks Arabic and his family in Baghdad can accommodate him [40].

The grant of permission

4. Upper Tribunal Judge Kamara granted permission to appeal (27 January 2017) on all grounds. In particular, she said that it is arguable that it was not open to the Judge to find he could relocate other than to Baghdad, and the finding he had family in Baghdad was not supported by the evidence.

Respondent’s position

5. Despite the rule 24 notice (13 February 2017), Mr Diwyncz agreed that [38] made no sense as if MSAD was not returnable to Baghdad which is where he would be returned, then it was not feasible to return him to Iraq. Consequently, the decision could not stand.

Discussion

6. Given the concession made by Mr Diwyncz, I am satisfied that a material error of law occurred. In addition, I am satisfied that the finding he had family in Baghdad was not supported by the evidence as there was no evidence to that effect. Accordingly, the possibility of internal relocation needed further analysis before it could be said that if he was returnable to Baghdad it was a realistic option. I am also satisfied that given the errors identified, the finding as to a lack of interest from the KDP cannot be sustained as those findings indicate a flawed analytical process.

7. Given these findings, I am also satisfied having heard from the representatives that it is appropriate to remit the matter de novo as the errors go beyond those contained within the Presidential Guidance for retention in the Upper Tribunal.

Decision:

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

I set aside the decision.

I remit the matter to the First-tier Tribunal for a de novo hearing, not before Judge Moore.

Deputy Upper Tribunal Judge Saffer
3 April 2017