Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02303/2016

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 17 January 2017
On 24 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

R M O
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms U Dirie instructed by Migrant Legal Project
For the Respondent: Mr I Richards, 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.

Introduction
2. The appellant is a citizen of Iraq who was born on 1 January 1991. He is of Kurdish ethnicity. He claims to come from the city of Kirkuk where he was born and lived until 29 September 2015 when he left Iraq. He arrived in the United Kingdom on 26 October 2015 clandestinely and on 27 October 2015 claimed asylum.
3. The basis of the appellant's claim was that his family had been attacked by ISIS and, as a result of an explosion at their garage/shop, his brother had been killed. A threat was subsequently made by ISIS and by a group of men stating that they wanted "blood revenge" for the garage/shop incident. The threat made in a letter was that they would find the appellant in any part of Iraq and, as a consequence, he left the country.
4. On 19 February 2016, the Secretary of State refused the appellant's asylum and humanitarian protection claims and also under Art 8 of the ECHR.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal.
6. In a decision sent on 16 September 2016, Judge Barcello dismissed the appellant's appeal on all grounds. First, as regard to the appellant's asylum claim, the judge did not find the appellant's claim to be credible and that, consequently, he was at risk from ISIS on return to Iraq. Secondly, in respect of the appellant's humanitarian protection claim under Art 15(c) of the Qualification Directive, the judge did not accept that the appellant was from the City of Kirkuk which was within the "contested areas" and to which the appellant could not return. Instead, the judge found that the appellant was from the KRI, in particular Suleymaniyah. As a consequence, the appellant would be returned to the IKR where there was no Art 15(c) risk applying AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).
The Appeal to the Upper Tribunal
7. The appellant sought permission to appeal to the Upper Tribunal on two grounds. First, the judge erred in law in reaching his adverse credibility finding and dismissing the appellant's appeal on asylum grounds. Secondly, in assessing whether the appellant was from Kirkuk, the judge was wrong to take into account that of the nine towns named by the appellant as being outside Kirkuk only two were identifiable on the map submitted at the hearing. In fact, six could be verified from the map and a seventh was identifiable but not on the map.
8. On 10 October 2016, the First-tier Tribunal (Judge M J Gillespie) granted the appellant permission to appeal on ground 2 but refused permission to appeal on ground 1.
9. On 1 November 2016, the Secretary of State filed a rule 24 notice.

Discussion
10. Ms Dirie, who represented the appellant accepted that she could not challenge the judge's adverse finding on the asylum claim as permission had not been granted on that ground. As a result, she focused upon ground 2.
11. Ms Dirie submitted that the judge had been wrong in para 43(i) to state that:
"Asked about what towns would be encountered by a person leaving Kirkuk in any direction, the appellant named nine places, of which only two can be identified on a map by his representatives."
12. Ms Dirie referred me to para 17 of the refusal letter where the judge stated:
"17. You were additionally asked to name the surrounding towns and villages immediately surrounding Kirkuk city. (AIR 28) You stated Chamchamal, Pirde, Malal Abdullan, Daquq, Dubis, Laylan, Khanaqeen and Kalar. None of these places listed are consistent with independent background information. This is a noted inconsistency and belies your claimed area of residence. Your level of education has been considered, but it is a reasonable expectation despite the absence of any formal education that you would be aware of your local area and the local vicinity, where you spent 25 years of your life."
13. Ms Dirie took me to maps at A61-A63 of the bundle in which the towns of Chamchamal, Malal Abdullan, Daquq (Tawuk), Laylan and Kalar are shown as towns outside Kirkuk. She accepted that there were only five shown on these maps and that Khanaqeen was not shown on the maps. She submitted that the judge had, therefore, been wrong to say that only two of the towns identified by the appellant were verifiable. In fact, five were verifiable.
14. Ms Dirie also relied upon the map at page A64 of the bundle showing, she submitted, districts of the City of Kirkuk including Rahimawa and Azadi which were identified by the appellant but which, in para 16 of the refusal letter, the Secretary of State had concluded were not verifiable. The judge had referred to this in para 43(i) as well and this was also an error.
15. Finally, Ms Dirie submitted that the judge had applied the wrong standard and burden of proof in making a positive finding in para 45 of his determination that the appellant came from the KRI, specifically Suleymaniyah. Ms Dirie submitted that the burden of proof was on the Secretary of State to establish that on a balance of probabilities.
16. Dealing with the latter point first, as I pointed out to Ms Dirie in the course of her submissions, in para 45 the judge stated that it was "highly probable" that the appellant came from the KRI, specifically Suleymaniyah. The judge, in effect, applied an even higher standard of proof than the one required, namely a balance of probability (see Hamza [2002] UKIAT 05185). In the light of this, Ms Dirie did not pursue the point. She was, in my judgment, entirely right not to do so. It is clear that the judge's finding in para 45 was based upon a standard of proof which was even more generous to the appellant than the applicable civil standard.
17. Turning to Ms Dirie's principal point, Mr Richards accepted that the appellant had been more accurate in his answers than the judge had acknowledged in para 43(i) of his determination. However, Mr Richards submitted that the point raised by Ms Dirie in relation to the naming of districts was a matter properly taken into account by the judge.
18. I accept that submission. At para 43(i) the judge states that:
"Asked about the districts within Kirkuk Governorate, he gave a number of names of which none were districts within Kirkuk but some were towns nearby. It was clearly explained what was being asked in the question and he responded that he had never heard that Kirkuk was in a district, later offering instead some names of neighbourhoods."
19. The point is dealt with in para 16 of the refusal letter as follows:
"16. You were asked to name the districts within Kirkuk Governorate, to which you stated Dukhormato, Laylan, Pirde, Taqa. When asked the districts, you stated you were not good with geography, then named; Rahimawa, Azadi, Regai Baghdad. These are not consistent with background information that identified them as; Kirkuk, Al Hawiga, Daquq and Dabes. This is a noted inconsistency in your account and belies your claimed area of residence in Kirkuk."
20. The appellant was being asked about districts within the "Kirkuk Governorate". His answer refers to towns outside Kirkuk such as Laylan. When asked the districts, the answer included two districts of the City of Kirkuk rather than the Governorate of Kirkuk (see page A64 of the bundle). That was, therefore, not an accurate answer to the question asked.
21. Consequently, the crucial issue is whether the judge's mistake as to the number of places or towns outside Kirkuk City that the appellant correctly identified - five out of eight there being no evidence about Khanaqeen (which it is accepted was off the map) - was material to his adverse credibility finding that the appellant had failed to establish that he was from Kirkuk. In my judgment, reading the judge's determination as a whole and in particular paras 43(i)-(v) and 44, the judge gave copious reasons for his adverse credibility finding. That reasoning includes the appellant's lack of knowledge concerning political figures, telephone numbers of emergency services, lack of knowledge about the city and Governorate of Kirkuk (see para 43(i)) and his reasonable knowledge of the KRI (para 43(ii)). In addition, the judge gave detailed reason for rejecting the appellant's account of how he left Iraq and had travelled to the UK was not credible (para 43(iii)). Further, he had failed to obtain supporting documents and he could have done so (para 43(iv)) and there were inconsistencies in his account about his father's involvement with the Ba'ath Party (para 43(v)).
22. At para 44, the judge reached the following conclusion:
"44. Taking into account the totality of the evidence I have concluded that the Appellant is not a credible witness and that his account to me is expedient and designed to obtain an immigration benefit. The evidence before me is such that the Appellant has failed to satisfy me, to the low standard applicable in international protection cases that he has given an accurate account of his area of birth and residence, his reasons for leaving his home country and his assertions as to his father's political background. Whilst I accept that he is of Kurdish ethnicity, I do not accept that he is from Kirkuk as claimed."
23. In my judgment, even if the judge had taken into account that the appellant had correctly identified five out of eight towns outside Kirkuk (and not two out of nine), the judge would inevitably have reached the same adverse credibility finding given the weight of his other reasons set out in detail and at length.
24. For completeness, I should deal with the judge's finding in para 45 that he was satisfied that the appellant came from the KRI even though that finding is not challenged in the grounds. At para 45 the judge said this:
"45. Having concluded that the Appellant is not from Kirkuk, I have considered whether or not the evidence before me is sufficient to permit me to make a finding as to where he is from. I consider that it is. I consider it highly probable that the Appellant originates from the Kurdistan Region of Iraq, most specifically Suleymaniyah. I have reached this conclusion for the following reasons:
(i) The Appellant has provided a false account as to his area of origin in order to establish a claim that he requires international protection. He has chosen a city that is known to be a contested area and of which, he has some knowledge. It is reasonable to infer that he is not from a contested area in the circumstances, but from somewhere safe.
(ii) He accepts that his parents are from the Suleymaniyah area.
(iii) The Appellant appears to speak with a slight Suleymaniyah accent.
(iv) He has displayed more knowledge about political figures in the KRI than in Iraq.
(v) Suleymaniyah is a safe area, relatively close to Kirkuk".
25. I see no basis upon which it can be said that the judge has failed adequately to reason his positive finding in respect of the appellant's origins and there is no other basis upon which it can be said that that finding was not properly open to him on the evidence.
26. There is no challenge to the judge's finding that if the appellant does, indeed, come from the KRI that he cannot safely return there applying AA.
Decision
27. For the above reasons, the decision of the First-tier Tribunal to dismiss the appellant's asylum and humanitarian protection claims did not involve the making of a material error of law.
28. The First-tier Tribunal's decision, therefore, stands.
29. Accordingly, the appellant's appeal to the Upper Tribunal is dismissed.

Signed

A Grubb
Judge of the Upper Tribunal

Date