Tribunal decisions

The decision

IAC-AH-DN-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02904/2016

THE IMMIGRATION ACTS

Heard at Liverpool
Decision & Reasons Promulgated
On 13th January 2017
On 20th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

Mr h h m
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Jones, Counsel
For the Respondent: Mr A McVeety, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Iraq born on 19th June 1989. The Appellant's immigration history is extensive and it is set out over two full pages of the Home Office document ICD.3237. The Appellant has a quite appalling immigration history. On 8th March 2016 the Secretary of State made a fresh decision refusing to revoke a deportation order signed in January 2011 and refusing to grant the Appellant asylum. The Appellant appealed that decision and the Secretary of State accepted that the Appellant's further submissions amounted to a fresh asylum and human rights claim within paragraph 353 of the Immigration Rules.
2. That appeal came before Judge of the First-tier Tribunal McAll sitting at Manchester on 5th July 2016. In an extensive decision and reasons promulgated on 25th July 2016 the Appellant's appeal was allowed under Article 15(c) of the Qualifying Directive and paragraph 339 of the Immigration Rules. The Appellant's appeal was dismissed on asylum grounds, paragraph 339 of the Immigration Rules and on human rights grounds.
3. Cross-appeals were lodged on the Secretary of State's Grounds of Appeal against the decision to allow the appeal on the Qualifying Directive. The Respondent's Grounds of Appeal against the decision of the First-tier Tribunal Judge to dismiss the appeal on human rights grounds. Permission in the cross-appeals was refused by Immigration Judge Pullig on 11th August 2016. The Grounds of Appeal were renewed. On 4th October 2016 Upper Tribunal Judge Freeman granted the Secretary of State permission to appeal. Judge Freeman noted that the Respondent contended:
(a) that since the judge had found at paragraph 38 that the Appellant held no Iraqi passport or ID it followed that his return to Baghdad was not "feasible" in terms of AA (Article 15(c)) [2015] UKUT 544 (IAC); so the judge should not have considered the safety of Iraq outside the IKR in the first place; but
(b) the judge should have considered:
(i) whether this Appellant, as a Kurd, could have gained entry to the Iraqi Kurdish Region (IKR) as a visitor, and stay longer if he got a job; and with more care;
(ii) whether he was from Kirkuk as he claimed; and
(iii) whether or not the Appellant has no family members who would be able to vouch for him on return so that he could get the necessary civil status identity document (CSID) from the Iraqi authorities to enable him to move permanently to the IKR.
4. Since the judge accepted that the Appellant came from Kirkuk and therefore outside the IKR, Judge Freeman considered that it was clearly unlikely that the Appellant would co-operate with any attempt to pre-clear him as a native with the IKR authorities so arguably the judge was not entitled to allow the appeal under Article 15(c) on any basis.
5. Although there are seemingly no documents on this very extensive file relating to the further issue of the cross-appeal, Mr McVeety advises that that remains extant and I am referred to the Secretary of State's response to the Grounds of Appeal under Rule 24 filed and served on 30th November. I have read the Rule 24 response and note that at paragraph 5 it states that the grounds have no merit and merely disagree the adverse outcome of the appeal. It is contended that the judge considered all the evidence that was available and came to a conclusion open to him based on that evidence and the Rules and does not disclose any error. It is against that very extensive background that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. When the matter first came before Judge McAll in the First-tier Tribunal he anonymised the proceedings. No application is made by either party to vary that anonymity direction and I maintain it. The Appellant appears by his instructed Counsel Mr Jones. Mr Jones has extensive knowledge of this case and has been involved in it for a considerable period of time. The Secretary of State appears by her Home Office Presenting Officer, Mr McVeety.
Submissions/Discussions
6. Mr McVeety relies on his Grounds of Appeal. He acknowledges that the Appellant is an Iraqi Kurd and the question is whether or not the Appellant can be returned to Irbul. He acknowledges that the judge found that if the Appellant were from Kirkuk he could not return via Baghdad. She submits that if the risk only arises from a lack of documents then the judge should not have allowed the appeal. He emphasises that other grounds were not available. He reminds me of the basis upon which permission was granted to appeal by Upper Tribunal Judge Freeman. He notes that the judge finds at paragraph 38 that the Appellant does not have an Iraqi passport or Iraqi identification document and that it would be unlikely he would be able to obtain a CSID. He submits therefore that it follows that the return of the Appellant to Iraq (excluding the IKR) was not feasible at the time of appeal and he notes the headnote of AA. However he points out that at paragraphs 31 and 39 the judge clearly considered the ability of the Appellant to obtain a CSID as being of relevance despite having previously held that his return was not feasible and that this approach is inconsistent with AA. He reminds me of two relevant paragraphs from the headnote of the country guidance authority:
"8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination ...
"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 after arriving in Iraq."
7. Mr McVeety submits that the findings therefore of the judge are inconsistent with the country guidance. He also contends that at paragraph 39 the judge failed to properly consider whether the Appellant could reside in the IKR. He points out that whilst the judge refers to the absence of a sponsor (and documents), the guidance in AA (at paragraphs 17 to 20) was that Kurds could gain entry to the IKR as visitors and secure permission to reside for longer if able to obtain employment.
8. Secondly Mr McVeety contends there is inadequacy of reasoning. He notes the judge expresses himself to be unhappy with the credibility of the Appellant's testimony and he refers me in detail to paragraphs 25 to 30 of the determination. He notes that at paragraph 30 the judge had accepted that the Appellant was from Kirkuk and that the judge had stated "As he has always held himself out to be from Kirkuk even where Kirkuk had no significance in terms of it being unreasonable for him to relocate back there."
9. He submits that the place of origin for Kurds from Iraq, and whether they originate from an area of Kurdish control or not, has for some significant time been of significance to issues of internal relocation and submits that in a case such as the present one where there is a dispute in respect of the Appellant's origin (he refers me to paragraph 30 of the refusal letter) and the Appellant's credibility is damaged to such an extent that his account was seen to be a complete fabrication the judge does not provide adequate reasons for holding the Appellant is from Kirkuk.
10. Further he notes that at paragraph 35 the judge has recorded "There is no other reference in the evidence before me to family members in Iraq" and holds that "taking the evidence in the round the Appellant does not have any relatives left in Iraq."
11. He submits that the refusal letter at paragraph 35 refers to the letter quoted at paragraph 32 in which the Appellant's partner refers to the Appellant's family in Iraq. He submits that the judge finds at paragraph 33 that this letter seriously damages the Appellant's credibility and his character yet, without any reasoning or reference to any evidence from the Appellant in respect of his family history and their whereabouts the judge thereafter holds that he has no relatives in Iraq. He submits that to refer to an absence of evidence as opposed to any evidence or narrative from an Appellant whose character and credibility have been seen to be seriously damaged to explain the absence of family is a material error. He submits therefore that the judge has materially erred in failing to resolve the conflict in evidence in respect of the Appellant's family. He asked me to remit the matter back for rehearing before a freshly constituted First-tier Tribunal.
12. Mr Jones in response accepts that the judge could have said more particularly when considering relocation and the spectrum of risk to which the Appellant is opposed. He submits that the judge does, at paragraph 39, give due consideration to the guidance given in AA and focuses on the position regarding the Appellant not being able to obtain a CSID. He repeats the reference made previously at paragraph 31 that the Appellant is undocumented and submits that that finding is irremovable. He turns to the guidance given by AA pointing out that in order to return it is necessary for an Appellant to have either a passport or a laissez-passer which is issued by the Iraqi Embassy and refers me to paragraph 161 of AA which sets out what it is necessary to do to convince the embassy to issue such a document. He points out that AA dealt with the feasibility of removing a person and did not conclude that a person was irremovable just because they had no documentation. He submits that if a judge accepts that it is feasible to remove an applicant then it is appropriate to be able to go on and assess the risk. He refers me to paragraphs 177 and 183 to 187 of AA pointing out that this Appellant will be severely hampered according to the objective evidence with regard to having no CSID on return particularly as Kirkuk is contested. He emphasises at paragraphs 186 to 187 of AA it is necessary to have someone to vouch for you and that there is a requirement that there is a family member from Kirkuk before you can return there. Consequently he submits that the judge has considered the complexities of obtaining a CSID and that if it is not possible to get a CSID quickly on return a person would soon become destitute and therefore he submits that what the judge did is not incompatible with AA. He acknowledges that if I do not agree with this approach but agree with the view expressed by the Secretary of State then the correct approach is for the case to be remitted back to the First-tier Tribunal and to be reheard. Thereafter he turns to the position regarding the presence of family members in Kirkuk. He takes me to paragraph 28 of the judge's decision pointing out that the hearing before Judge McAll was on a remittal from the Upper Tribunal and that there had been an acceptance by the previous judge (Judge Hollingsworth) that the Appellant was from Kirkuk. No challenge to that finding had been maintained and that the Secretary of State is only taking issue to its place of origin because otherwise the Secretary of State would have to concede an entitlement to protection.
13. So far as the issue relating to family in Iraq he takes me to paragraphs 32 to 35 of the judge's decision pointing out that the only issue was a defamatory letter of 2011 by the Appellant's partner which is much regretted and that the judge put little store on her testimony generally.
14. He submits that if I am not persuaded with regard to the way of return and that that is inadequately reasoned then it will be necessary to look at AA again against the factual matrix of this case. Mr McVeety agrees with that assessment.
15. Mr McVeety in brief further submissions submits that if I read paragraphs 31 to 35 carefully I will, he contends, conclude that the findings are inadequate. He points out there is a new country information report relating to the situation in Baghdad and that in all the circumstances I should remit the matter back to the First-tier Tribunal for rehearing.
The Law
16. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
17. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Error of Law
18. After due consideration I find that there are material errors of law in the decision of the First-tier Tribunal Judge and below I give directions for the rehearing of this matter. In many ways this is a regrettable turn of events. It is difficult to imagine any case that has had such a protracted history as this matter. The sooner this case is disposed of finally once and for all the better. It is accepted that the Appellant is an ethnic Kurd. The question is can he be returned to Iraq and onwards to Irbul? The appeal by the Secretary of State relates to the grounds of the First-tier Tribunal Judge of the Appellant's appeal pursuant to Article 15(c) i.e. on humanitarian protection grounds. I think there is merit in the argument that on considering AA (Article 15(c)) [2015] UKUT 544 (IAC) the appropriate step for the judge to take was not to consider the safety of Iraq outside the IKR in the first place but to consider whether this Appellant as a Kurd could have gained entry to the Iraqi Kurdish Region as a visitor and stay longer if he got a job and whether he was from Kirkuk as claimed and whether or not he did have any family members or persons who would be able to vouch for him on return thus enabling him to obtain the necessary CSID from the Iraqi authorities to enable him to move permanently to the IKR.
19. In failing to address this approach the judge has failed to address the headnote of AA generally in particular at paragraphs 5, 6 and 7 which state:
"5. Return of former residents of the Iraqi Kurdish region will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national in the United Kingdom to enter Iraq only if the applicant is in possession of a current or expired Iraqi passport relating to him or to a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v The Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by an applicant cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation if the Tribunal finds that the applicant's return is not currently feasible given what is known about the state of the applicant's documentation."
20. Consequently I agree with the analysis put forward by Judge Freeman when granting permission namely that if the judge accepted that the Appellant had come from Kirkuk i.e. outside the IKR he was clearly unlikely to co-operate with any attempt to pre-clear him as a native with the IKR authorities so arguably the judge was not entitled to allow the appeal under Article 15(c).
21. I agree therefore with the approach adopted by Mr McVeety that the judge's findings are inconsistent with AA. Further I consider that the judge has not provided adequate reasons from holding the Appellant was from Kirkuk particularly bearing in mind the acceptance that his credibility is damaged to such an extent that the judge finds his account to be a complete fabrication. This spills over into the finding with regard to his family and the absence of evidence as opposed to any evidence or narrative from the Appellant to explain the absence of family does I agree constitute a material error.
22. It is therefore with considerable regret due to the lengthy history of this matter that I consider that the correct approach is to set aside the decision of the First-tier Tribunal with none of the findings of fact to stand and to remit the matter back to the First-tier Tribunal for rehearing.
23. Little has been said in the error of law submissions before me as to the cross-appeal based on human rights grounds. I have the benefit of the Rule 24 response. In the circumstances the correct approach as I am remitting the matter back in any event is for there to be a complete rehearing on both appeals.
Notice of Decision
The decision of the First-tier Tribunal contains material errors of law and is set aside. Directions are given on both cross-appeals for the rehearing of this matter.
1. The decision of the First-tier Tribunal Judge is set aside. The matter is remitted to the First-tier Tribunal sitting at Manchester on the first available date with an ELH of four hours.
2. That the appeal should not be before any Immigration Judge who has had previous dealings with this Appellant's appeals. The appeals are extensive and go back over twelve years. Whilst it is a matter for the administration and the Designated Immigration Judge in Manchester on listing, it is the recommendation that this matter should be before a full-time Immigration Judge.
3. That none of the findings of fact are to stand.
4. That it is recorded that the issues that are to be reheard relate to the cross-appeals i.e. the original allowing of the appeal by Immigration Judge McAll pursuant to Article 15(c) of the Qualifying Directive and paragraph 339C of the Immigration Rules and the cross-appeal brought by the Appellant on human rights grounds.
5. That there be leave to either party to file an up-to-date bundle of such subjective and/or objective evidence upon which they intend to rely at least fourteen days prior to the restored hearing.
6. That in the event of the Appellant requiring an interpreter his instructed solicitors should notify the Tribunal service within seven days of receipt of these directions.
7. That whilst acknowledging the constraints on the administration due to the history of this matter the Tribunal service is requested to its upmost to expedite the rehearing of this matter.
The First-tier Tribunal Judge granted the Appellant anonymity. No application is made to vary that order. In such circumstances the anonymity direction do continue.
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 their 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 Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris