Tribunal decisions

The decision

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

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 14 March 2017
On 3 April 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

K R S
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms J Morgan of McGarvey Immigration & Asylum Practitioners
For the Respondent: Mr S Kotas, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The anonymity direction imposed in my decision dated 19 January 2017 continues to apply.
Introduction
2. The appellant is a citizen of Iraq who was born on 1 July 1985. He comes from Singar (Shingal) in Mosul Province which is one of the “contested areas” of Iraq. He is of Kurdish ethnicity.
3. The appellant and his family left their home in August 2014 after ISIS attacked their village. His father was captured and his wife, children, step-mother, and brother went to a camp in Dehok in the Iraqi Kurdish Region (“IKR”). The appellant went to Syria and from there to Turkey. He then travelled by lorry to the United Kingdom where he entered illegally on 5 August 2015. He claimed asylum. On 26 October 2015, the Secretary of State refused his claims for asylum, humanitarian protection and under the ECHR.
4. The appellant appealed to the First-tier Tribunal. Judge Burnett accepted that the appellant had a well-founded fear of persecution in his home area 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, Judge Burnett dismissed the appellant’s appeal on asylum grounds and he also dismissed the appeal on humanitarian protection grounds on the basis that the appellant could not succeed under Art 15(c) of the Qualification Directive. The appellant did not rely upon Art 8 of the ECHR.
5. The appellant appealed to the Upper Tribunal inter alia on the basis that the judge had failed properly to consider the issue of internal relocation applying the country guidance decision of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and also had failed properly to consider the expert report of Dr Fatah relied upon by the appellant.
6. On 12 September 2016, the First-tier Tribunal (Judge E B Grant) granted the appellant permission to appeal. On 6 October 2016 the Secretary of State filed a rule 24 response seeking to uphold the judge’s decision.
7. On 10 January 2017, the appeal was listed before me. In a decision sent on 31 January 2017, I concluded that the judge had erred in law in his approach to internal relocation and that the First-tier Tribunal’s decision should be set aside. The judge’s finding that the appellant had established that he would be at risk of persecution in his home area for a Convention reason stood (as it was not challenged) but the decision as to whether he could safely and reasonably internally relocate within Iraq should be remade. The appeal was adjourned to be relisted for a resumed hearing.
The Resumed Hearing
8. At the resumed hearing, the appellant was represented by Ms Morgan. She invited me to admit an additional statement from the appellant dated 4 January 2017 under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended). In this brief statement, the appellant indicated that he had spoken to his wife in the Dawdia IDP camp by telephone in late 2016 and she had told him that their youngest child had died in the camp from an illness.
9. Mr Kotas, who represented the Secretary of State did not object to the admission of this statement and indicated that he did not wish to ask the appellant any question. I admitted the statement under rule 15(2A) and the hearing proceeded on the basis of submissions from both representatives.
The Issues
10. It was not suggested that the appellant’s return to Iraq was not feasible. common ground between the representatives that the sole issue was internal relocation within Iraq. Ms Morgan submitted in her skeleton argument and oral submissions that it was unreasonable or unduly harsh for the appellant to relocate to Baghdad or to the IKR. Mr Kotas submitted that it was reasonable and not unduly harsh for the appellant to relocate to Baghdad or, alternatively, to the IKR.
Discussion
11. The relevant law, relating to internal relocation, is set out in Art 8 of the Qualification Directive (Council Directive 2004/83/EC) and para 339O of the Immigration Rules (HC 395 as amended). For these purposes, its suffices to set out para 339O which implements the Qualification Directive on this issue:
“339O (i) The Secretary of State will not make:
(a) a grant of asylum if in part of the country of origin a person would not have a well founded fear of being persecuted, and the person can reasonably be expected to stay in that part of the country;
or
(b) a grant of humanitarian protection if in part of the country of return a person would not face a real risk of suffering serious harm, and the person can reasonably be expected to stay in that part of the country.
(ii) In examining whether a part of the country of origin or country of return meets the requirements in (i) the Secretary of State, when making his decision on whether to grant asylum or humanitarian protection, will have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the person.
(iii) (i) applies notwithstanding technical obstacles to return to the country of origin or country of return.”
12. In Januzi v SSHD [2006] UKHL 5 the House of Lords accepted that the relevant approach, now reflected in the Qualification Directive, was whether it would be unreasonable or unduly harsh for an individual to be expected to live in a place other than his home area where the risk of persecution or serious ill-treatment contrary to Art 3 was established. At [47], Lord Hope said this:
“The words ‘unduly harsh’ set the standard that must be met for this to be regarded as unreasonable. If the claimant can live a relatively normal life there judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable to expect him to move there.”
13. The issue is fact-sensitive and requires a consideration of all relevant factors concerning the individual’s circumstances in the proposed place of relocation. The relevant factors will include, available medical care, the ability to earn a living and find accommodation, any family links, ethnic affiliations, the ability to live a life at least at subsistence level and whether support might be forthcoming from others including from abroad (see Januzi at [20]).
1. IR to Baghdad
14. I deal first with the appellant’s potential relocation to Baghdad.
15. It was common ground between the parties that the Upper Tribunal’s decision in AA provided the relevant country guidance in particular as set out in [15] of the head note. However, I begin with [14] which sets out, as a general position, that it will not usually be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad. Paragraph [14] is in the following terms:
“As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.”
16. The particular factors identified by the Upper Tribunal are set out in [15] as follows:
“In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.”
17. Taking the factors set out in (a)-(g) in turn – observing that (d) concerned with a “lone female” returnee is obviously of no relevance – Ms Morgan submitted that the factors pointed in the appellant’s favour.
18. First, I accept that the appellant does not have a CSID. Ms Morgan invited me to find that he would not be able to obtain a CSID. Clearly, he could not do so in his home area as he cannot return there and his family have left. Mr Kotas did not specifically address me on this issue.
19. The relevance of a CSID and whether one can be obtained by a returnee is dealt with in [11]-[13] of the head note of AA as follows:
“11. Where P’s return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P’s return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P’s home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P’s ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P’s information (and that of P’s family). P’s ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P’s ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P’s Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practise able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.”
20. As I have indicated, the appellant’s home area is a “contested area” and there is no possibility that his family (which in any event have left and now live in a IDP camp in the IKR) could assist the appellant in obtaining a CSID. As [13] of the head note of AA makes plain, even though it is possible to obtain a CSID in Baghdad:
“The evidence does not demonstrate that the ‘central archive’, which exists in Baghdad, is in practise able to provide CSIDs to those in need of them”.
21. Likewise, the operation of the National Status Court in Baghdad is stated to be “unclear”.
22. It was not suggested, rightly in my judgment, that the appellant had the necessary documentation that would allow him to obtain a CSID from the Iraqi Embassy in London or could obtain the relevant supporting documentation from his home area in Iraq to do so (see [177] of AA).
23. On the basis of this evidence, I am satisfied that the appellant is unlikely to be able to obtain a CSID in Baghdad and, as a result, he will be presented with the problems, identified in [11] of the head note of AA, in obtaining employment, education, housing and medical treatment in Baghdad.
24. Secondly, the appellant’s evidence, which I accept, was that he spoke “very little Arabic”. Although Mr Kotas submitted that the appellant was not a person who had “no Arabic” it remains plain that his facility in that language is limited. That will present the appellant with problems of integration in Baghdad in terms of his ability to carry on a sustainable life there.
25. Thirdly, it is not suggested by the Secretary of State that the appellant has any family or friends in Baghdad who could assist him either with financial or other support. The appellant’s family are, as I have already noted, now in the IKR.
26. Fourthly, there is no evidence, given the absence of family or friends in Baghdad, that the appellant would be able to find a sponsor in order to access accommodation of any sort.
27. Fifthly, the appellant is Kurdish and a Sunni Muslim. Ms Morgan relied upon the expert report of Dr Fatah at paras 104-115 which identifies that “Sunni Kurds” in Baghdad were “not easy” to find. The Kurdish community in Baghdad is distinct, speaking Arabic primarily and having long been “integrated … into local Shia Arab communities in Baghdad” (see in particular paras 112 and 118).
28. Mr Kotas contended that Dr Fatah’s report was, in effect, unreliable as he had stated at para 84 inconsistently with AA that the security risk “to all civilians in Baghdad are high”. He submitted, relying upon paras 104 and 105 of Dr Fatah’s report that there were a sizeable minority of Kurds living in Baghdad.
29. That, in my judgment, fails properly to take into account Dr Fatah’s expert evidence and opinion that Sunni Kurds do not represent the bulk of the present population of Kurds in Baghdad who are within the “Shi’a Faili Kurdish community”. At para 118 Dr Fatah makes the point in this way:
“The Kurdish community in Baghdad has diminished over the years, and has a very small population present, mostly being Faili Kurds, who are Shia Muslims by sect and have been integrated into Baghdad for decades. Most Kurds fled to the IKR after the 2003 invasion.”
30. Finally, although the appellant may have access to some funds if voluntarily returned to Iraq, those funds would undoubtedly become exhausted and leave the appellant without any financial support unless support came from third parties or his own employment.
31. Dr Fatah, in his report, notes at para 114 that the appellant, living in Baghdad, “would be removed from kinship networks”. In respect of that, Dr Fatah continues:
“Many Iraqis rely on social connections or blood ties for accessing employment, housing, and social assistance. If [the appellant] has no familial ties in Baghdad, he would not have access to these on relocation to Baghdad.”
32. Dr Fatah continues at para 115:
“Without any family or social connections in Baghdad and without language skills it is highly plausible that [the appellant] will encounter great difficulties in relocating to Baghdad and integrating into the local community.”
33. Dr Fatah makes the same point and conclusion at para 119.
34. Mr Kotas submitted that the Upper Tribunal in AA anticipated that those for whom internal relocation to Baghdad was unduly harsh would “likely to be small” (see [153]). He submitted that the appellant had no health problems, was male and had a trade, namely he was a labourer and in Turkey he had cleaned windows. Mr Kotas submitted that whilst Dr Fatah recognised that there would be difficulties for the appellant in Baghdad, that was not the test and his relocation there would not be “unduly harsh”.
35. The point made by the UT in AA at [153] has to be seen in context. In the preceding paragraph of the decision ([152], the UT said this:
“… whilst Dr Fatah provides evidence, which we accept, that a CSID is required to access income/financial assistance, employment, education, housing, a pension, and medical committee documents, there will be persons who do not have a CSID but who nevertheless have access to an adequate support mechanism in Baghdad; for example those persons with family or friends in Baghdad who are willing and able to provide such assistance to them. Such matters will, of course, require careful consideration of the evidence, and a reasoned finding to be made, in each case.
36. The appellant is a person without a CSID and is unlikely to be able to obtain one. He is also a person without any “adequate support mechanism in Baghdad”. He would appear, therefore, potentially to fall more naturally within the “small” group for whom the UT considered relocation to Baghdad would not be reasonable.
37. In my judgment, it would be unreasonable or unduly harsh for him to relocate to Baghdad. I have set out above my findings in relation to the specific factors identified by the UT in [14] of the headnote in AA. They weigh cumulatively in the appellant’s favour. I accept that on returning to Baghdad the appellant would have no family or other support, apart from short-term financial support provided by the respondent if he voluntarily returns. The appellant would not have a CSID and would not be able to obtain one in Baghdad. I accept the evidence of Dr Fatah that the appellant would very much be a minority Kurd in Baghdad without any social or other community links. He speaks “very little” Arabic and I accept that his circumstances would be such that there is a real risk that he would not be able to obtain employment or integrate in Baghdad. I also bear in mind the background risk, which Mr Kotas accepted was enhanced for Kurds in Baghdad even though the risk did not reach the level to engage Art 15(c) of the Qualification Directive (see Dr Fatah’s report at paras 72-103). There is a real risk, in my judgment, that in very short measure the appellant would become destitute in Baghdad and, in any event, his circumstances would make his ability to live their unsustainable and unduly harsh. Taking into account all the evidence, I am satisfied that it would be unreasonable or unduly harsh to expect the appellant to relocate to Baghdad.
2. IR to the IKR
38. I turn now to the alternative place of relocation, namely the IKR.
39. It was common ground between the parties that the issue of internal relocation to the IKR was dealt with in [20] of the head note of AA as follows:
“Whether K, if returned to Baghdad, can 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.”
40. As regards the first requirement, Mr Kotas accepted that the appellant could not be expected to reach the IKR by road. That, no doubt, reflects the fact that “contested areas” exist between Baghdad and the IKR. However, Mr Kotas submitted that the appellant could reach the IKR by internal flight to Erbil.
41. Ms Morgan relied upon the evidence of Dr Fatah given in AA that an individual’s laissez-passer would be taken from him at Baghdad Airport and therefore, if this happened to the appellant, he would not have the required documentation for onward travel to Erbil. Also, she relied upon Dr Fatah’s report that internal air travel was “considerably more expensive” than other forms of transport and that “most Iraqi cannot afford to take flights internally” (see para 159 of his report). Dr Fatah continued at para 160 that:
“The majority of internal flights from one city to another are taken by wealthy businessmen, those in government and foreigners in Iraq.”
42. Ms Morgan submitted that the appellant would lack the documents to travel and the means to do so by aeroplane. She reminded me that the evidence was that the appellant’s family lived in an IDP camp in the IKR.
43. Mr Kotas also submitted that AA identified that a Kurd who did not originate from the IKR could obtain entry for ten days as a visitor which could be renewed for a further ten days and for a longer period if the individual finds employment (see [19] of the head note of AA). Mr Kotas submitted that it was not in issue that flights existed between Baghdad and Erbil and Dr Fatah’s observation about cost had to be seen in the light that which, on the basis of Mr Kotas’ researchers, a one-way ticket to Erbil from Baghdad cost about £131. He reminded me that the appellant had paid a significant amount to an agent to come to the UK. The remainder of his finances were unknown but he could obtain some support by assisted voluntary return. In relation to the absence of a laissez-passer, Mr Kotas submitted that Dr Fatah had not mentioned this issue in his expert report provided specifically in relation to the appellant.
44. I am not persuaded that the appellant could not practicably reach the IKR. First, it is noticeable that Dr Fatah makes no mention of the laissez-passer point in his expert report prepared specifically in relation to this appellant and postdating the case of AA. Dr Fatah does, at para 121 of his report, state that the appellant “may not be permitted entry into the IKR” but that is because he takes the view that without an official document such as a CSID entry may be denied. However, in my judgment that point is not consistent with the position accepted in AA, and to which Mr Kotas referred me, summarised in [19] of the head note concerning entry as a visitor with possible extensions for a further ten days or longer if employment is found. Paragraph 19 is as follows:
“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 pro-actively remove Kurds from the IKR whose permits have come to an end.”
45. Further, whilst I accept that the appellant has limited financial means and is not likely to obtain any financial support from his family who live in an IDP camp in the IKR, he has failed to establish that he would not have the funds available if he acted reasonably by, for example, accepting the financial support that goes with an assisted voluntary return. Mr Kotas’ submission on cost was based upon his own researches which were not specifically in evidence. However, Ms Morgan produced no evidence concerning the cost of internal flights in Iraq and Dr Fatah’s report only deals with the usual situation of those who live and work in Iraq. The assumption is that the ‘ordinary’ person lacks the means based upon their standard of living in Iraq. In my judgment, it would be wrong to assess the appellant’s circumstances on return on the basis that he declined to accept financial support under the assisted voluntary return scheme.
46. Looking at the evidence as a whole, I am, therefore, satisfied that it is practicable for the appellant to travel from Baghdad to the IKR by plane to Erbil. Further, as the Upper Tribunal recognised in AA at [19] of the head note, the appellant is likely to be able to obtain entry at least for the immediate future as a visitor. Dr Fatah’s report goes no further than saying the appellant “may not” be permitted to enter or reside in the IKR. Likewise, at para 125 Dr Fatah goes no further than saying individuals “such as labourers from the disputed territories can face being barred from entry” (may emphasis). He recognises that the barring is arbitrary and there is no pattern to it. Dr Fatah’s report does not cause me to depart from the general approach recognised in the country guidance decision of AA.
47. Turning then to the circumstances of the appellant within the IKR, I accept that he would be unable to obtain any support from friends and family in the IKR. The only evidence of family concerns those who fled his home area and now live in an IDP camp in the IKR. They are in no position to provide any financial support to the appellant. Some sense of the circumstances in which they live can be gleaned from the appellant’s recent statement that led initially to his son’s illness and, following treatment in hospital, his subsequent deterioration once back in the camp which led to him dying a few days later. The conditions in the Domiz IDP camp in the IKR are described by Dr Fatah at paras 170—181 of his report. This was the camp in which his family lived on leaving their home area and entering the IKR. The appellant’s recent statement refers to contacting his wife at the “Dawdia camp”. No point was made on this apparent move to another IDP camp or any suggestion made that I should not consider the conditions in the “Dwadia camp” (if indeed it is a distinct camp) as any different from those in the Domiz camp. Mr Kotas made no submission that living in an IDP camp in the IKR was reasonable. Rather, the focus of Mr Kotas’ submissions was that the appellant would be able to obtain employment and so, in effect, not have to live in an IDP camp.
48. As regards the issue of the appellant obtaining employment in the IKR, I accept the evidence that the appellant was a labourer and in Turkey cleaned windows. Dr Fatah deals with the “job opportunities in the IKR” at paras 133-154 of his report. He notes that without specific skills, for example as a plumber, electrician, tiler or plasterer, his chances of employment in the IKR are reduced. He will be part of the “unskilled job market which is extremely competitive”. Mr Kotas accepted that Dr Fatah’s report identified an unemployment in the IKR but, he submitted, it was such as to be an “absolute disaster”. Whilst that characterisation may not be wrong, it fails to reflect the downturn and problems with the IKR’s economy which Dr Fatah identifies in his report. It is not disputed that his family, including his brother, live in an IDP camp in the IKR. They are clearly unable to support themselves. Whilst I accept that the appellant is 31 years of age, Kurdish and with no health problems, I find that there is a real risk that the appellant would be unable to find employment – and therefore the necessary support to live – in the IKR and within a relatively short period of time, like his family, be forced to live in an IDP camp. It was not suggested by Mr Kotas that it was reasonable to expect the appellant to live in such circumstances. I accept the evidence of Dr Fatah at paras 170- 181 of his report. The conditions are very poor and raise serious humanitarian concerns.
49. The issue of internal relocation is fact-sensitive. Although the appellant is a Kurd, he has no settled family or friends in the IKR. His family live in an IDP camp. It would not be reasonable to expect the appellant to return to Iraq only to live in an IDP camp.
50. In my judgment, taking into account all the circumstances, it would be unreasonable and unduly harsh to expect the appellant to relocate to the IKR.

3. Conclusion
51. Consequently, the appellant has established that he is a refugee who cannot be returned to Iraq under Art 33 of the Refugee Convention.

Decision
52. For the reasons set out in my decision dated 19 January 2017, the First-tier Tribunal’s decision to dismiss the appellant’s appeal on asylum ground involved the making of an error of law and was set aside.
53. I remake the decision allowing the appellant’s appeal on asylum grounds.
54. The appellant’s appeal on humanitarian protection grounds is dismissed.
55. The appellant placed no reliance upon Art 8 of the ECHR before the First-tier Tribunal or in the Upper Tribunal.

Signed

A Grubb
Judge of the Upper Tribunal

Date 30 March 2017