Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02550/2015

THE IMMIGRATION ACTS

Heard at Newport
Decision & Reasons Promulgated
On 10 January 2017
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

KRS
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms J Morgan of McGarvey Immigration and Asylum Practitioners
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.
2. The appellant is a citizen of Iraq who comes from Singar (Shingal) in Mosul Province which is one of the "contested areas" of Iraq. The appellant is of Kurdish ethnicity.
3. The appellant and his family left his village in August 2014 after ISIS attacked the village. His father was captured and his wife, children, step-mother and brother went to a camp in Dehok in the IKR. The appellant went to Syria and from there to Turkey. He then travelled by lorry to the UK which he entered illegally on 5 August 2015.
4. The appellant claimed asylum. On 26 October 2015, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and under the ECHR.
5. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Burnett. The judge accepted that the appellant had a well-founded fear of persecution in his home area (namely Shingal in the Mosul Province) based upon his religious beliefs and because of imputed political opinion as he did not support ISIS. However, Judge Burnett found that the appellant could safely and reasonably internally relocate to Baghdad or, alternatively, to the IKR. As a result, he dismissed the appellant's appeal on asylum grounds. He also dismissed the appellant's appeal on humanitarian protection grounds on the basis that the appellant could not succeed under Art 15(c) of the Qualification Directive.
6. The appellant appealed to the Upper Tribunal on a number of grounds including that the judge failed properly to consider the issue of internal relocation in the light of the country guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and the expert evidence of Dr Fatah.
7. On 12 September 2016, the First-tier Tribunal (Judge E B Grant) granted the appellant permission to appeal.
8. On 6 October 2016, the Secretary of State served a rule 24 response seeking to uphold the judge's decision.
9. Before me, Ms Morgan, who represented the appellant relied upon the grounds of appeal in her oral submissions. She submitted that the judge, in reaching his adverse finding on internal relocation, failed properly to consider the relevant factors set out in [15] of AA. In particular, she relied upon the appellant's ethnicity, that he had no family or friends in Baghdad and was a Kurd of the Sunni faith and that Dr Fatah's evidence was that the only Kurdish community in Baghdad was of the Shi'a faith. Ms Morgan pointed out that the judge (at para 52) had wrongly understood the appellant to be asking the judge to depart from AA when, in fact, he was relying on it. Further, Ms Morgan submitted that the judge failed to take into account the practicality of the appellant reaching the IKR from Baghdad to which he would be returned. Again, she relied upon the expert evidence of Dr Fatah that the appellant's laissez-passer would be taken from him at Baghdad Airport and he could not, therefore, fly to Erbil and travel by road was not practical as it was through a "contested area".
10. Mr Richards, who represented the Secretary of State accepted that the judge's conclusion in relation to internal relocation could not be defended. He indicated that, as the Presenting Officer before Judge Burnett, he had focused on internal relocation to the IKR but, he accepted, in para 54 of his determination Judge Burnett had only briefly considered relocation to the IKR. He accepted that Judge Burnett had not reasoned how the appellant was to reach the IKR from Baghdad. In respect of internal relocation in Baghdad, Mr Richards accepted that the judge had been wrong to conclude that the appellant was seeking to depart from AA. Rather, he accepted that the appellant was asking the judge to conduct a fact-sensitive enquiry as to the circumstances as set out in [15] of AA. Mr Richards accepted that the judge's decision in relation to internal relocation could not stand.
11. In my judgment, Mr Richards' concession was properly made. The judge's brief reasoning in para 54 of his determination, leading him to conclude that it was reasonable to expect the appellant to relocate to the IKR, fails to take into account the practicalities of the appellant reaching the IKR from Baghdad, to which he will be returned. Further, the judge failed properly to consider the factors set out in [15] of AA in relation to the appellant's relocation to Baghdad for the reasons Ms Morgan submitted.
12. Consequently, I am satisfied that the judge's adverse finding in respect of internal relocation is flawed and cannot stand.
Decision and Disposal
13. The judge's decision to dismiss the appellant's appeal on asylum grounds involved the making of an error of law and is set aside.
14. The appeal will be re-listed in the Upper Tribunal to re-make the decision. The judge's finding that the appellant has established that he would be at risk of persecution in his home area for a Convention reason shall stand. The issue for the Upper Tribunal to decide will be whether the appellant can internally relocate within Iraq.
15. The judge's decision to dismiss the appeal on humanitarian protection grounds is not challenged and shall also stand.

Signed

A Grubb
Judge of the Upper Tribunal