Tribunal decisions

The decision

ST

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01848/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 January 2017
On 16 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE A M BLACK

Between

M J A
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Russell Wilcox, counsel
For the Respondent: Mr Tony Melvin, Home Office Presenting Officer

DECISION AND REASONS

1. This matter comes before me for consideration as to whether or not there is a material error of law in the determination of First-tier Tribunal Judge Mayall ("the FTTJ") promulgated on 26 September 2016, in which the FTTJ dismissed the appellant's appeal against the refusal of his asylum, humanitarian protection and human rights claim.

2. I maintain the anonymity direction made in the First-tier Tribunal.

Background

3. The appellant is a Kurd and citizen of Iraq. He had sought asylum on the grounds of his sexuality, claiming to be a gay man. The respondent accepted the appellant's identity, nationality, and that he came from Diyala, a contested area in Iraq where there is a state of internal armed conflict. The respondent did not accept his claimed sexuality. The respondent, in refusing his asylum claim, accepted the appellant could not return to his home area of Khanaqin within the governorate of Diyala due to the security situation there. However, the respondent considered the appellant had not provided any reason why he could not relocate to the IKR; it was noted he spoke Kurdish Sorani and had previously worked in Iraq.

4. The FTTJ did not find the appellant to be a credible or honest witness: [50] of the decision and reasons refers. His claim to be at risk of persecution or harm based upon his sexuality was rejected. The FTTJ noted the appellant's home area was within Diyala but found "there is nothing to suggest that it would be unreasonable or unduly harsh for [the appellant] to relocate to Baghdad City or those parts of the Baghdad belts that do not fall within the 15(c) territories." [63]. The appeal was dismissed on all grounds.

5. The appellant sought permission to appeal to the Upper Tribunal but this was refused in the First-tier Tribunal. He renewed that application in this Tribunal and permission to appeal was granted by Upper Tribunal Judge Rimington on 25 November 2016 in the following brief terms"

"There are a number of factors to be considered in relocation to Baghdad - see headnote [15] of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). It is arguable that the judge misdirected himself in stating at [63] 'the only factor that might make it unreasonable is whether or not he has had a CSID or will be able to obtain one'. The grounds are arguable."

6. No challenge is made by the appellant to the findings of the FTTJ with regard to his credibility. The sole ground of challenge is the alleged failure of the FTTJ to address appropriately the issue of whether the appellant could relocate within Iraq to avoid the risk of serious harm in his home are in the governorate of Diyala.

Submissions

7. For the appellant, Mr Wilcox submitted, both orally and in his skeleton argument, that the FTTJ's findings in respect of reasonableness and feasibility of return were each challenged. It was submitted that the FTTJ had made internally inconsistent findings in the decision: on the one hand the FTTJ did not accept the account of the appellant that he was without identity documents in relation to his right of residence or nationality. On the other hand, the FTTJ sought to use the appellant's lack of such documentation to establish it was not feasible for the appellant to be returned. Even if the FTTJ had not made contradictory findings on this issue, his later findings with regard to the feasibility of return were not sustainable in the light of AA (Iraq).

8. In the alternative, Mr Wilcox submitted the FTTJ would not have been "entitled to sustain his later findings in relation to the Appellant's feasibility of return to Iraq. Rather, since the threat to the Appellant arises from a source independent of his lack of documentation, the FTTJ was obligated to determine the reasonableness in this case of the Appellant relocating to Baghdad. This ? the FTTJ failed to do." He cited inter alia paragraphs 169 and 207 of AA (Iraq). It was also submitted that the FTTJ had failed to recognise the risk of serious harm within the scope of Article 15(c) as a distinct basis of claim. The risk was not born out of the documentation issue but rather out of the level of indiscriminate violence. The FTTJ failed to recognise the difference between the documentation issue in relation to the feasibility of return, which hypothetically would place a person in a place of safety allowing him/her to live a reasonable life and, secondly, the documentation issue relevant to the assessment of the reasonableness of internal relocation. Mr Wilcox submitted that the appellant's case merited the latter consideration and that it was a material error of law for the FTTJ to foreclose a complete consideration of the reasonableness of internal relocation. It was acknowledged that the FTTJ had, in part, recognised the relevance of the lack of relevant ID to the question of reasonableness of relocation to Baghdad whilst failing explicitly to address it [63]. However, the FTTJ had misunderstood the guidance in AA (Iraq) applicable when there was an absence of ID. The presence or absence of ID was a gateway question incapable of being considered in isolation when dealing with the overall issue of the reasonableness of internal relocation. It was submitted the FTTJ had failed to consider the range of factors going beyond the question of ID documentation, as set out in [15] of the headnote to AA (Iraq). It was submitted that the issue of support should have been the subject of fact finding. Furthermore, the FTTJ had failed to take into account the expert evidence which post-dated AA (Iraq) and required anxious scrutiny. That evidence supported the view that the mere absence of a CSID was insufficient to determine the viability of relocation to Baghdad. These errors, individually and in combination, rendered the decision unsustainable. Mr Wilcox made clear that he was not suggesting the findings of fact made by the FTTJ were not open to him (save that they should not be contradictory). It was the failure of the FTTJ to consider the reasonableness of relocation which rendered the errors material. Had the FTTJ considered appropriately the appellant's ethnicity, lack of Arabic language skills and other issues including the availability of support, the outcome on relocation might have been different. He submitted the FTTJ had failed to consider appropriately the expert evidence which post-dated AA (Iraq).

9. For the respondent, Mr Melvin submitted that the appellant had failed to demonstrate there were errors of law in the determination. He noted that the judgment in AA (Iraq) was being appealed to the Court of Appeal. He adopted the arguments which were to be addressed in that appeal. He noted that whilst the appellant had adduced expert evidence, the FTTJ had been bound by the country guidance in AA (Iraq) and had properly applied it. Given the credibility finding was not challenged, the FTTJ's remaining findings were sustainable: the FTTJ did not accept the appellant's evidence as to the reasons he did not have documentation. Furthermore, the FTTJ had looked at the matter in the alternative: if the documentation were not produced, return was not feasible without it. Mr Melvin submitted that, given the credibility findings, it was not incumbent on the FTTJ to assess the factors identified at [15] of the headnote in AA (Iraq). The FTTJ had directed himself properly to the country guidance and had made sufficient findings for his decision to be sustainable on the particular facts.

Discussion

10. I am unable to find the FTTJ has not addressed the issue of whether the appellant would be at risk of serious harm in his home area, pursuant to Article 15(c), as a discrete issue. It is clear from [62] that the FTTJ accepted this and indeed it was not in dispute between the parties. This was the FTTJ's starting point for the assessment of risk on return, having dismissed the appellant's asylum claim on the grounds of his sexuality.

11. The FTTJ found the appellant an unreliable and dishonest witness [50]. He stated at [57]:

"In all the circumstances I regret that I cannot rely upon the evidence of this appellant in any material particular. I simply do not accept his story. The standard of proof ie that of a real risk, may be low but it is a standard that still has to be met. It has ot been met in this case."

The words "in any material particular" are relevant to this appeal. They make clear that the FTTJ did not accept the appellant's account insofar as it related to any material aspect of his claim. That includes his ability to relocate within Iraq. In particular, it includes (as is subsequently made clear at [61] his claim "to have lost or had stolen his passport (unexpired), and CSID". The FTTJ could not rely on that evidence. He found the appellant had "not established, to any relevant standard, that he does not have or could not obtain his passport or CSID." These findings are clear and sustainable on the evidence. I do not consider the FTTJ was required to make a positive finding that the appellant had such documents or that he could obtain them. This is a clear inference from the FTTJ's findings.

12. It is alleged before me that the FTTJ failed to take into account and apply the range of factors listed at [15] of the headnote to AA (Iraq). In that regard it is relevant to note the findings of the FTTJ to the effect that

"There is no credible evidence before me to show what his circumstances in Iraq were" [61].

"I cannot rely upon his evidence that he would have no support in Baghdad, whether from friends or relatives living there or support in the shape of financial support from his family in his home area" [61].

Thus, quite apart from the issue of the availability of a CSID, the FTTJ considered the issue of the appellant's circumstances might be on return. He could not rely on the appellant's evidence that he would have no support in Baghdad. The FTTJ had noted the appellant's inability to return to his home area due to the general security situation there. It was submitted for the appellant that the FTTJ had failed to take into account the appellant's ethnicity, his inability to speak Arabic and various other factors identified at [15] of the headnote to AA (Iraq). However, even if this were the case the appellant's screening interview record refers to the appellant's declaration that he spoke Arabic. I am unable to accept the submission that the FTTJ failed to take into account the appellant's ethnicity. This permeates the decision, not least because there was no dispute between the parties as to the appellant's ethnicity: for example, the respondent noted in submissions before the FTTJ that the appellant could relocate to the IKR. Given the FTTJ's findings, his failure to address the appellant's alleged inability to speak Arabic and to reiterate his Kurdish ethnicity would not have impacted on the outcome with regard to the reasonableness of return to "Baghdad City or those parts of the Baghdad belts that do not fall within the 15(c) territories". Whilst it was an error for the FTTJ to state that the "only factor that might make it unreasonable is whether or not he has a CSID or will be able to obtain one" because this is contrary to the guidance in AA (Iraq), this statement is not a material misdirection of the law for the reasons I have set out above. The outcome would have been no different, given the evidence before the FTTJ. For the avoidance of doubt and for the reasons I have set out above, this is not a case where, as was submitted by Mr Wilcox, the appellant would be at real risk of persecution or serious harm irrespective of a lack of documentation (paragraph 169 of AA (Iraq) refers).

13. The claimed inconsistencies in the FTTJ's findings as regards the reasonableness and feasibility of return do not exist. The FTTJ made it clear in the decision that he did not find the appellant a credible or honest witness [50]. That finding is not challenged before me. It was open to the FTTJ to make a finding that he did not accept the appellant's account that he had no Iraqi identity documents. Having made that finding he went on to make an alternative additional finding at [65] that, the appellant having produced no such documents, he would not be returned in any event. I am unable to accept the submission that the failure of "the FTTJ to make clear and uncontradicted [sic] findings in relation to the Appellant's relevant documentation situation before it is possible for him to go on to make a sound finding on the feasibility of the Appellant's return" renders the decision unsound in law.

14. I turn to the issue of whether the FTTJ failed to address appropriately the appellant's expert evidence. This was in the form of a report by Sheri Laizer and is entitled "Expert Report on risks on return to Iraq subsequent to AA (article 15c Iraq CG [2015] UKUT 00544 (IAC)." It is dated 8 April 2016. It is submitted that AA (Iraq) requires the FTTJ to take into account this expert opinion on the issue of reasonableness of relocation. The FTTJ noted the appellant's counsel's submissions at the FTT hearing which referred specifically to the report of Ms Laizer; he summarised the submission made on the basis of that report. Ms Laizer makes no reference in her report to having read the appellant's witness statement or interview records. She refers only to background material she has read including AA (Iraq) for preparation of her report. Her report appears to have been provided to those instructing her for use in relation to various individuals (see, for example, paragraph 2 on page 43 where the author refers to being instructed in connection with various "clients"). She addresses the respondent's proposition as regards the risk on return for Kurdish failed asylum seekers originally from Iraqi government controlled areas who are returned to Baghdad airport (Section 1, paragraph 3 of her report). Much of her report is generic in nature. It does not specifically address the appellant's situation on return. Ms Laizer is also asked to give an opinion (Section 2, paragraph 1) on the "pre-clearance procedures" for a Kurdish failed asylum seeker without ID to be accepted back into the KRG from the UK. Ms Laizer was unable to give a conclusion on the issue thus her evidence on this had no material impact on the outcome of the appeal. Ms Laizer only refers in her opinion to situations where returnees have lost contact with family members (paragraph 2 of her report on page 43) but the FTTJ was unable to accept that was the case for this appellant. Similarly, Ms Laizer's opinions on the ability of failed asylum seekers to trace lost family members in Iraq, to apply for formal recognition of their identity and to live without family or other support network on return are not relevant, given the FTTJ's inability to accept the appellant's evidence on these issues. Whilst the FTTJ made no specific findings with regard to the opinion of Ms Laizer, his failure to do so was not a material error of law given the content of that report: it was not sufficient to allow the FTTJ to deviate from the guidance in AA (Iraq).

15. The FTTJ went on to make a discrete finding that the current situation at the date of hearing was that there were no ID documents to hand (albeit he did not accept the appellant's account that his unexpired passport was lost or stolen). The FTTJ relied on the guidance at [7] of the headnote to AA (Iraq) and cited it at [64] of his decision. Quite properly he found the appellant's return was "not currently feasible given what is known about the state of his documentation" [64]. The FTTJ went on to state "At present he has not produced any current or expired passport or a laissez-passer. In the absence of such documents the Iraqi authorities will not allow him to enter Iraq". This is not a contradictory finding: the appellant had not produced any such documentation and, given his evidence (albeit not found credible) that it was lost or stolen, he could be expected not to produce it to facilitate his return. The FTTJ was entitled therefore, notwithstanding his earlier finding that he did not accept the appellant's unexpired passport and CSID had been lost or stolen [61] to find that no such documentation had been or would be produced by the appellant. His finding on the feasibility of return is sustainable on the evidence and consistent with his earlier findings. The FTTJ was entitled to conclude that, in the absence of a positive finding as to the documents held by the appellant, until the appellant supplied sufficient documentation to the Iraqi Embassy in London to enable it to provide him with a passport or a laissez passer, his return was not currently feasible. This finding is not incongruent with the guidance in AA (Iraq) on the feasibility of return.

16. For these reasons the decision of the FTTJ contains no material error of law. I do not set it aside.

Decision

17. This appeal is dismissed.

18. The making of the decision of the First-tier Tribunal did not involve a material error of law. It is not set aside.

A M Black

Signed Date 13 January 2017
Deputy Upper Tribunal Judge A M Black

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

A M Black

Signed Date 13 January 2016
Deputy Upper Tribunal Judge A M Black