Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02711/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision and Reasons Promulgated
On 26 September 2016
On 28 September 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE JM HOLMES

Between

H. A.
(ANONYMITY DIRECTION MADE)
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person
For the Respondent: Mr Diwnycz, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant entered the United Kingdom illegally and claimed asylum on 25 September 2015. That application was refused on 8 March 2016, and a decision to remove him was made in consequence.
2. The Appellant's appeal to the Tribunal against those immigration decisions was heard and dismissed by decision of First Tier Tribunal Judge Duff promulgated on 5 July 2016.
3. The Appellant's application to the First Tier Tribunal for permission to appeal was granted on 3 August 2016 by Judge Macdonald on the basis it was arguable the Judge had failed to determine whether the Appellant was a refugee, before turning to whether or not his removal to Iraq was feasible in the context of whether his claim to humanitarian protection should be granted.
4. Thus the matter comes before me.

Error of Law?
5. The Appellant did not identify in his initial claim to asylum any risk of persecution for a convention reason, and none emerged in the course of his evidence during the appeal process.
6. The Appellant's case before the Tribunal was that he had fled from his village in the face of the advance of ISIS forces, and that he had in the process lost contact with the other members of his immediate family. He had not otherwise faced any problems in Iraq with either ISIS, or any other group. In the circumstances in which he had found himself he had simply taken the offer of assistance to travel abroad from a cousin. Accordingly, notwithstanding the grant of permission to appeal, the Judge was entirely correct to dismiss the appeal on asylum and Article 3 grounds. There was no evidential basis upon which he could have reached any other conclusion.
7. The Judge resolved the dispute of where the Appellant originated in his favour, concluding that the Appellant's home was in Ali Sarai in the province of Kirkuk.
8. The true thrust of the Appellant's claim, as the Judge correctly identified, was that as a civilian he faced a risk of harm in the event of his return to him home area in the course of the indiscriminate violence affecting the civilian population, resulting from the armed conflict being pursued between ISIS and the forces of the Iraqi authorities; Article 15(c). In considering that aspect of his case the Judge considered, and sought to apply, the guidance that is to be found in this respect in the decision of AA (Article 15(c)) Iraq CG [2015] UKUT 544, which in turn follows the guidance of the Court of Appeal in HF (Iraq) & Others [2013] EWCA Civ 1276.
9. The Appellant had said that he had lost contact with the members of his immediate family in Iraq (although he accepted that he retained contact with a cousin in Iran), and that he did not have access to any of his identity documents because they had been lost when his village fell to ISIS. If that claim were true, as the Judge appears to have accepted it was, then the Appellant had no identity documents in his possession that would permit the Iraqi Embassy to issue him with either a passport, or, a laissez passer. Thus whether or not the Appellant was prepared to co-operate with the process of documentation (and on his account he was not prepared to do so) he would not in practice be able to obtain the issue of any identity documents by the Iraqi authorities, and in particular a CSID.
10. In those circumstances, as the Upper Tribunal concluded in AA, and as the Judge also concluded the return of the Appellant to either the KRG, or, to Baghdad was simply not feasible, because no such return could be effected without documents. This was not the result of any policy of the Respondent - it was the recognition of the reality of the position adopted by both the KRG authorities and the Iraqi authorities generally.
11. In turn it followed, as the Judge concluded in the light of AA that the Appellant could not succeed in any claim based upon the consequences of destitution in Iraq arising from a lack of the identity documents that would allow him to access state support. The situation would never arise, because as someone whose return was not feasible he would never find himself in that situation. If, in the future, documents were issued to him that would mean his return to Iraq became feasible, then he would not face destitution as a result of their lack, because such documents would mean he could obtain the issue of a CSID either in advance of removal, or relatively quickly after arrival.
12. In the circumstances the Judge did not make any material error of law in his decision to dismiss the appeal on all grounds. The Appellant's appeal is dismissed.

DECISION
The Decision of the First Tier Tribunal which was promulgated on 5 July 2016 did not involve the making of an error of law in the decision to decision to dismiss the appeal that requires that decision to be set aside and remade. That decision is accordingly confirmed.

Deputy Upper Tribunal Judge JM Holmes
Dated 26 September 2016

Direction regarding anonymity - Rule 14 Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until the Tribunal directs otherwise the Appellant is granted anonymity throughout these proceedings. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to proceedings being brought for contempt of court.
Signed
Deputy Upper Tribunal Judge JM Holmes
Dated 26 September 2016