Tribunal decisions

The decision

IAC-BFD-MD-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02751/2015

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 2 December 2016
On 13 December 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE APPLEYARD

Between

Mr Chya usman
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Hussain, of Counsel.
For the Respondent: Mr M Diwnycz, Home Office Presenting Officer.

DECISION AND REASONS
1. The Appellant is an Iraqi national who appealed against the Respondent's decision to refuse his application for asylum. His appeal was heard at Bradford by Judge of the First-tier Tribunal Spencer who, in a decision promulgated on 31 August 2016, dismissed it.
2. The Appellant sought permission to appeal which was, on 26 September 2016 initially refused. However, a renewed application was made to the Upper Tribunal and in a decision dated 7 November 2016 Upper Tribunal Judge Finch gave permission to appeal. Her reasons for so doing are:-
"The Appellant seeks permission to appeal against the decision of the First-tier Tribunal Judge Spencer to dismiss his appeal against the Respondent's decision to refuse to grant him asylum or Humanitarian Protection.
The First-tier Tribunal Judge correctly referred to the country guidance contained in AA (Article 15 (c)) Iraq CG UKUT 00544 (IAC). As it is accepted that the Appellant is from Kirkuk, he is from a contested area and he would be at risk if he had to return there. He is not from Iraqi Kurdistan and cannot automatically presume that he would be able to return there. As a consequence, the issue was whether if would be unreasonable and unduly harsh to return him to Baghdad. In order to reach a decision on this issue, the First-tier Tribunal Judge had to make a number of findings of fact but failed to do so.
The proper course would have been to reconvene the hearing in order to make up for some of the evidential deficits, which undermined the overall decision.
Therefore, I am satisfied that the First-tier Tribunal Judge did make arguable errors of law in his decision and that permission to appeal should be granted."
3. Thus the appeal came before me today.
4. Mr Hussain relied on the grounds seeking permission to appeal arguing that the Judge had erred in failing to adequately assess whether the Appellant's return to Baghdad would be unduly harsh/unreasonable in light of the factual matrix of the Appellant's case with particular reference to his ability to speak Arabic and that he would be considered to be a minority community member in Baghdad. This being an Appellant not in possession of a CISD Card. Mr Hussain also urged me to accept that there had been insufficient engagement with Country Guidance and that in failing to make findings on material matters as asserted the Judge had material erred.
5. Mr Diwnycz relied on the Respondent's response which in essence amounts to a submission that the Judge has made adequate findings in relation to all material issues.
6. I find that not to be the case. Although the Judge correctly referred himself to the Country Guidance contained in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and found that it was accepted that the Appellant is from Kirkuk, from a contested area and that he would be at risk if returned there. He is not from Iraqi Kurdistan and it cannot automatically be presumed that he would be able to return there. Consequently a question of whether or not it would be unreasonable and unduly harsh to return him to Baghdad is in play. The Judge has failed to make findings in relation to this issue and has consequently materially erred.
7. I accept Mr Hussain's submission that that is the only issue in this appeal and that the Judge's positive findings on other issues should be preserved.
8. For all these reasons I find that the decision of the First-tier Tribunal contains an error of law. I hoped to proceed to deal with the hearing today. Unfortunately no interpreter was provided to me. Mr Hussain urged me in the circumstances, given the need for further fact-finding, to remit the matter to the First-tier Tribunal. I agreed.

Decision

The making of the decision of the First-tier Tribunal involved the making of an error on a point of law. 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 Statement 7.2(b), before any Judge aside from Judge Spencer. The sole issue for the First-tier Tribunal to consider is evidence and submissions in relation to the issue of internal relocation. Beyond that issue Judge Spencer's findings are all preserved.

No anonymity direction is made.

Signed Date: 12 December 2016

Deputy Upper Tribunal Judge Appleyard