Tribunal decisions

The decision

IAC-AH-KRL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02655/2016

THE IMMIGRATION ACTS

Heard at Bradford UT
Decision & Reasons Promulgated
On 23rd March 2017
On 3rd April 2017

Before

DEPUTY upper tribunal judge ROBERTS

Between

H.A.H.
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Frantzis of Counsel
For the Respondent: Mr Diwncyz, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity direction was made by the First-tier Tribunal. As a protection claim, it is appropriate to continue that direction.

DECISION AND REASONS
1. The Appellant is a citizen of Iraq born 10th April 1996. He is 19 years of age. He comes from Jawala in the Diyala province of Iraq. He claimed asylum shortly after entering the UK on 7th October 2015.
2. The Respondent accepted that the Appellant is a national of Iraq from Diyala and that Diyala is a contested area and thus the Appellant cannot return there owing to an Article 15(c) risk.
3. Apart from that, the Appellant also claimed to be at risk from IS in his home area.
4. The Respondent nevertheless refused his claim to asylum on the basis that when his return became feasible (which at present it could not as the Appellant has no documents), the Appellant could reasonably internally relocate via Baghdad to the Independent Kurdish Region (the IKR).
5. His appeal came before First-tier Tribunal Judge Fowell who in a decision promulgated on 7th December 2016 dismissed the appeal on asylum/humanitarian protection and human rights grounds.
6. The Appellant sought permission to appeal on grounds that the FtT had erred in its assessment of:
feasibility of return;
whether internal relocation was reasonable in this Appellant’s particular circumstances.
7. Permission was granted by FtTJ Bennett in a one line decision, saying
“Permission to appeal is granted because the Grounds of Appeal are arguable.”
Thus the appeal comes before the Upper Tribunal.
Submissions
8. For the Appellant, Miss Frantzis relied upon the grounds for permission to appeal which I summarise as follows. The judge noted the arguments advanced at the hearing on behalf of the Appellant and at [22] finds that in this appeal, he was bound to apply the CG case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). Miss Frantzis agreed that so far as this goes it is correct. However the difficulty is that the judge did not look beyond the confines of AA. He fell into error by looking at feasibility on return solely in the context of the lack of documentation available to the Appellant. It was always the Appellant’s case (and this was advanced at the hearing) that any risk on return to him does not stem solely from a lack of documentation available to him, but incorporates and includes other factors.
9. She submitted that the FtT fundamentally failed to appreciate and grapple with this argument. Nowhere does the argument or any findings upon it appear in the decision. That is a material error since the Appellant is entitled to have his case fully dealt with and findings made, on the whole of the evidence advanced. Otherwise he has not had a fair hearing.
10. Likewise so far as the reasonableness of internal relocation to IKR or Baghdad is concerned, the FtT failed to fully consider and make findings on the evidence before it regarding that issue. This has resulted in there being no consideration of how this particular Appellant would survive in Baghdad prior to any onward travel to IKR. In particular she drew my attention to and relied upon paragraph 204(15) of AA where the Upper Tribunal set out a list of factors which it considered likely to be relevant in assessing whether it would be unreasonable or unduly harsh for an Appellant to relocate to Baghdad.
11. Miss Frantzis submitted that the FtT had failed to set out and take note of those factors. Cumulatively these errors amounted to a material error in the decision and it should be set aside and remade. Any re-making of the decision would involve a fact-sensitive analysis and exercise being carried out.
12. Mr Diwncyz for the Respondent relied on the Rule 24 response which defended the decision although in his customary fair manner it is correct to say he did not press the matter strongly. He accepted that the Rule 24 response, whilst setting out that the judge had followed the country guidance case in AA, did not directly address the issue raised concerning the failure to consider evidence which had been advanced at the original hearing.
Consideration
13. I find I am satisfied that the FtT materially erred in its decision and I now give my reasons for this. It is incumbent upon the FtT Judge to deal with and make findings on the evidence put forward by the Appellant. I find force in Miss Frantzis’s submissions that in this case the judge has failed to take account of relevant evidence. This is because the judge appears not to have appreciated that what is advanced on behalf of the Appellant is that he is at risk on return for additional factors beyond a lack of documentation.
14. I accept Miss Frantzis’s submissions that there are no findings in the decision analysing whether those other factors amount to a risk on return.
15. Equally I find there has been no reasoned appreciation of the reasonableness of internal relocation to the IKR or Baghdad. I see no proper analysis of how this Appellant would fare in Baghdad especially bearing in mind the guidance of what AA considered to be the material aspects of a return to Baghdad. Therefore it is unclear how this Appellant would fare in Baghdad prior to onward travel to IKR. That evidence must be considered and findings made.
16. I am satisfied therefore for the above reasons that the decision of the FtT contains material error and it is necessary that it is set aside for it to be remade.
17. This will require a proper fact-finding analysis to be made both of the reasonableness of internal relocation and the feasibility of return for this Appellant.
18. Both parties were in agreement that if I found an error of law in these circumstances, then the appropriate course is for the appeal to be heard afresh in the First-tier Tribunal with no findings preserved. I agree with that proposal.
Notice of Decision
19. The decision of the First-tier Tribunal involved the making of a material error which amounts to an error in 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 Tribunal, Courts and Enforcement Act 2007 and practice statement 7.2(v) before any judge other than FtT Judge Fowell.
20. An anonymity direction was made in the First-tier Tribunal and that stands.

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 his 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 C E Roberts Date 02 April 2017

Deputy Upper Tribunal Judge Roberts