Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01844/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 12 October 2016
On 19 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

K A K
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr C McGinley, of Gray & Co, Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Farrelly, dismissing his appeal against refusal of recognition as a refugee from Iraq.
Grounds of appeal to the UT.
? The only substantive reason for dismissing the appeal appears to be,
It is my conclusion it would be reasonable to expect [the appellant] to move to the Kurdish autonomous region. I also believe it possible that he could relocate to Baghdad the lack of support and language would make this least favourable (paragraph 19).
The judge has erred in law? standing the findings in AA Iraq CG [2015]:
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities proactively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, and reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
The judge makes no reference to the fact that if returned to the Kurdish region [the appellant] would only have a limited right to live there subject to finding employment, and consequently the judge has failed to give adequate reasons for his findings. Reference is made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 348:
The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what where the material considerations that were taken into account in reaching it.
Written response to the grant of permission.
2. The judge properly considered whether the appellant could relocate to Baghdad and gave adequate reasons for so finding at paragraphs 17 to 19. There is no material error of law in the decision.
Submissions for appellant.
3. The evidence from the appellant about his background had largely been accepted. He is from Sinjar, a city within the disputed area of Ninewah, and is Kurdish and Shia. There was a minor point about language, not material. The decision says that the appellant speaks Kurdish Sorani but in fact he speaks and gave evidence in Kurdish Bardini. Although his initial interview is recorded as having taken place in Sorani, the substantive interview was in Bardini. He does not speak Arabic. The conclusions in the decision at paragraph 17 to 19 were not adequately explained. The judge said that the appellant's "home city now appears to be controlled by the legitimate government", but that was based on only one news item handed in by the respondent on the day of the hearing. The respondent had not sought to amend the terms of the refusal letter (paragraph 16) accepting that the appellant is from a contested area. The refusal letter is the source of the slip about the appellant being a Sorani speaker. At paragraph 18 the judge says that the appellant might relocate to the Kurdish autonomous region or to Baghdad, but gives no sufficient explanation. A one-page report from "Voice of America" was an insufficient basis for a finding which went against country guidance. As to the Kurdish region, the appellant is neither Sunni nor a Sorani speaker as most of the inhabitants there are. He is not of the general background to adapt, and has no connections. Further reasons would be needed to explain why he might relocate there, or in Baghdad, or anywhere else. The judge did not make clear where the appellant was expected to go and how he was expected to get. The case should be remitted to FtT for a fresh decision.
Submissions for respondent.
4. The grounds and submissions for the appellant overlooked that the burden both as to local risk and as to internal relocation was not on the respondent or on the judge, but on the appellant. The appellant produced no evidence that as a Shia or as a speaker of Bardini he would be in any significant difficulty in the Kurdish region. Background evidence and country guidance showed that even if he were to be admitted there initially for only 10 days, the authorities did not carry out expulsions thereafter. The evidence that Isis no longer controlled his home area was fairly brief, and was produced only on the day, but there was no reason to think it was inaccurate. The appellant did not seek an adjournment and has not suggested since that there is evidence to the contrary. The judge was right to apply AA in light of that new evidence. Any slip about the language spoken by the appellant was immaterial. The judge's findings on the appellant's good health and employment prospects were not challenged. The judge's findings were brief but sufficient and the decision should stand.
Reply for appellant.
5. It was implicit in the Home Office submission that the judge had not stated express or adequate reasons. It was not correct that the appellant could adapt in Baghdad as readily as he had done in the UK. A similar level of support and accommodation is not available in Baghdad. To depart from country guidance to the extent urged by the respondent would have to be justified by more than the short documentation which was supplied.
Conclusions.
6. The grounds aim only at the internal relocation findings. They do not incorporate any challenge to the prior issue about the appellant's home area, which was developed only in submissions.
7. The country guidance in AA was based on evidence up to May 2015. There was found to be a state of internal armed conflict in certain parts of Iraq, the "contested areas", of such intensity as to represent a real risk of indiscriminate violence qualifying applicants for protection. It is a case of some factual and legal complexity. It was decided in full awareness of a changing situation on the ground. It cannot be taken to have fixed the geographical lines of control. A country guidance case is of course to be applied unless there is good reason not to do so, but it is authoritative only in so far as any subsequent appeal (a) relates to the country guidance issue in question, and (b) depends upon the same or similar evidence.
8. The most recent evidence before the FtT was the report from "Voice of America News" headlined "Kurds seek reconstruction help after liberating Sinja", dated 24 November 2015. This stated that Kurdish forces backed by US airstrikes liberated Sinja from the Islamic state terrorist group earlier in the month. That was evidence which clearly entitled the judge to depart from country guidance to the extent he did (as explained by paragraphs 14 and 17 of his decision).
9. The appellant did not produce any evidence to contrary effect, did not seek an opportunity to do so by way of adjournment, and has not suggested since that the situation was not (and does not continue to be) as described in the news report. That was sufficient to decide his case; he has not suggested that he might succeed if his home area is under government and Kurdish control.
10. The rest of the judge's decision was in the alternative, but in any event I see nothing in the evidence which was before the judge or in the country guidance which might have led him to decide that relocation to the Kurdish region or to Baghdad would not be available. The judge observed that Baghdad would be the "least favourable" option, but that is only an observation that while least attractive to the appellant his situation there would fall short of undue harshness.
11. An anonymity direction was made in the FtT. The matter was not mentioned in the UT, and anonymity has been preserved.
12. The determination of the First-tier Tribunal shall stand.

19 October 2016
Upper Tribunal Judge Macleman