Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02426/2018

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 29 March 2019
On 10 April 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

M S J M A
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs L Brakaj, Counsel.
For the Respondent: Mr Diwnycz, Home Office Presenting Officer.

DECISION AND REASONS
1. The Appellant is a citizen of Iraq who made an application for international protection. It was refused, and he appealed and following a hearing, and in a decision promulgated on 23 March 2018, Judge of the First-tier Tribunal Arullendran dismissed the Appellant's appeal.
2. He sought permission to appeal which was initially refused. A renewed application was granted by Deputy Upper Tribunal Judge Chapman on 11 October 2018. Her reasons for so granting were: -
"1. The Appellant, who is a national of Iraq, born on 11.4.87, seeks permission to appeal, out of time, against a decision of First tier Tribunal Judge Arullendran who, in a decision and reasons promulgated on 23 March 2018, dismissed the Appellant's appeal against a decision of the Respondent dated 30 January 2018 refusing to grant him asylum or humanitarian protection.
2. The deadline for submitting the application was 22 May 2018 but the application was not received until 23 May 2018 and is thus 1 day out of time. There is no application for an extension of time. However, I noted that the application for permission to appeal is dated 21 May 2018 and was sent by fax on 22 May 2018 at 18.53 which is after the end of the working day, hence it was recorded as received on 23 May 2018. I extend time so as to admit the application in time, bearing in mind the principles in SS (Congo) & Others [2015] EWCA Civ 387 in particular that the breach of the Rules is relatively minor, however the Appellant's solicitors should be mindful of the fact that unless an application is submitted before 16.00 hours it will be treated as out of time and it cannot be assumed that leave to extend time will always be forthcoming.
3. The grounds of appeal assert that the Judge erred in her assessment of humanitarian protection and failed to take account of material considerations, given that the Appellant is of Arab ethnicity and Sunni religion and is from Mosul, which is a contested area and that, following the CG decision in BA (Iraq) [2017] UKUT 00018 (IAC) he would be at risk on return as a perceived collaborator and due to his extended absence from Iraq in the West. It was submitted that the Judge further erred in her assessment of whether the Appellant has a family support network in light of the fact that the Appellant stated he had not had contact with them since 2007 and that since that time ISIS invaded Mosul in 2014, which was not taken into account.
4. The Judge was entitled to take account of the previous adverse credibility findings of the First tier Tribunal in respect of the Appellant's initial asylum claim. She went on to make sustainable findings at [70]-[74] as to the risk to the Appellant on return, having found his account to have lost contact with his family not to be credible. The Upper Tribunal in BA (Iraq) found that Sunni identity alone is not sufficient to give rise to a real risk of serious harm.
5. However, it is arguable that, given the Appellant's evidence recorded at [35] that he was previously living with his mother, 3 sisters and 2 brothers (not his father) when he left in 2007 and given that ISIL invaded Mosul in 2014, that in light of in light of the decision of AAH (Iraqi Kurds - internal relocation) Iraq CG UKUT 00212 (IAC) (albeit that this Appellant is not a Kurd) the Judge's finding at [70] that the Appellant would be able to obtain a CSID or replacement passport through the assistance of his family or a proxy in Iraq is materially flawed.
6. The grounds of appeal disclose no arguable errors of law in the decision of the First tier Tribunal Judge. However, permission to appeal is granted on the narrow basis set out at [5] above."
3. Thus, the appeal came before me today.
4. Somewhat unusually in granting permission to appeal Deputy Judge of the Upper Tribunal Chapman has identified that in certain areas the Judge's decision is "materially flawed" (see paragraph 5 of her above-mentioned decision).
5. Both representatives were accepting that on this narrow basis (paragraph 5 of Deputy Upper Tribunal Judge Chapman's decision) there was a material error in relation to the ability of the Appellant following ISIL's invasion of Mosul in 2014 to obtain a CSID or replacement passport through the assistance of family or a proxy which impacts on his consequent ability to return there.
6. In the circumstances the appeal will be remitted to the First-tier Tribunal to be heard de novo, solely in relation to the narrow issue identified in paragraph 5 of Deputy Upper Tribunal Judge Chapman's decision. The balance of her findings are preserved. Further evidence is necessary in relation to this narrow issue and both parties are directed to file any additional written evidence in relation there to no later than 5 working days prior to the hearing.
Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. The decision is set aside. The appeal is remitted to the First-tier Tribunal to be dealt with afresh pursuant to Section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 and Practice Direction 7(b) before any Judge aside from Judge Arullendran.
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.

Signed Date 6 April 2019
Deputy Upper Tribunal Judge Appleyard