Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: pa/02974/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 17 February 2017
On 27 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Omar Taha Suliman Kartany
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Patel, Lei Dat & Baig Solicitors
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, Omar Taha Suliman Kartany, was born on 30 November 1995 and is a male citizen of Iraq. By a decision promulgated on 23 November 2016, I found that the First-tier Tribunal had erred in law such that its decision fell to be set aside. My reasons for reaching that decision were as follows:
1. The appellant, Omar Taha Suliman Kartany, was born on 30 November 1995 and is a male citizen of Iraq. He arrived in the United Kingdom in June 2015. He claimed asylum on the same day. His application was refused by a decision dated 5 November 2015. The appellant appealed on asylum and human rights (Articles 2, 3 and 8) grounds to the First-tier Tribunal which, in a decision promulgated on 23 July 2016, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. Permission was granted by First-tier Tribunal Judge Kelly on 7 September 2016. He gave permission on two grounds, refusing permission on the remaining grounds. First, the First-tier Tribunal had assessed the viability of international relocation [18] applying a test of “insurmountable obstacles” rather than the proper test enunciated in Januzi [2006] UKHL 5, whether it would be unduly harsh to expect the appellant to relocate outside his home area. Both parties agree that the appellant cannot return to his home area of Iraq (Abu Graib). Secondly, the judge arguably indulged in speculation as to whether friends and/or family members would be available in Iraq to assist the appellant on his return.
3. I find the Tribunal erred in law such that its decision falls to be set aside. I reach that finding for the following reasons. As Mr McVeety, for the respondent, acknowledged, the judge applied the wrong test for internal flight at [18]. The judge found that the appellant is
a young man who has been educated and spent a large amount of time living in Iraq. He has adapted well and integrated into a new environment and future upon arriving in the UK. In the circumstances, I do not find that there would be insurmountable obstacles to him relocating to Baghdad, a city in a country where he is from.
Whilst it is true that earlier in the decision the judge did refer to the proper test for considering internal flight [16], it is impossible to be sure that he applied that test rather than the incorrect test at [18].
4. I am not persuaded by the second ground of appeal. The judge recorded [17] that the appellant had no close family members who could accommodate him in Baghdad but he had told the Tribunal that he had family members living in Iraq who may “be able to assist in his reintegration”. As Mr McVeety pointed out, the appellant had an uncle in Iraq who actually paid for him to escape to the United Kingdom. It was reasonable to for the First-tier Tribunal judge to find that such a relative or others might assist the appellant upon his return to Iraq. The judge’s finding is not unreasonable on the basis of the evidence nor is it inconsistent with his earlier findings [16] where the judge noted that the appellant’s mother and siblings had fled to Turkey and his father had also left Iraq.
5. Ms Patel submitted that the judge had also failed to give proper consideration to a UNHCR Report which had been filed with the papers and which was relevant to the question of internal flight. I make no finding on that submission; no doubt those representing the appellant at the resumed hearing in the Upper Tribunal will bring all the necessary evidence before that Tribunal.
Notice of Decision
6. The decision of the First-tier Tribunal promulgated on 23 July 2016 is set aside. The decision will be re-made in the Upper Tribunal before Upper Tribunal Judge Clive Lane. The only issue for determination by the Upper Tribunal is that of the availability of internal flight for this appellant to Baghdad.
7. No anonymity direction is made.
2. At the resumed hearing at Manchester on 17 February 2017, I heard evidence briefly from the appellant. He told me that he had lost contact with his uncle in 2016. His uncle had been living in Baghdad.
3. The only issue remaining in this appeal is that of internal flight (see error of law decision). The Secretary of State proposes that the appellant will be able to exercise the option of internal flight to Baghdad. The question is whether it would be unduly harsh to expect the appellant to relocate there. Country guidance is provided by the Upper Tribunal in AA (Article 15(c) CG Iraq [2015] UKUT 0054 (IAC). The appellant relies on the evidence previously submitted together with a report by Sheri J Laizer, an “author and Middle East expert.” The report is dated 14 February 2017.
4. In the conclusions to the report, Ms Laizer states that she considers that “conditions in Iraq are generally worse than when AA was promulgated based on evidence up to May 2015 and predating the campaign to take Mosul had got underway finally in October 2016 and continues at the date of this report.” In addition, Ms Laizer concludes that “in large part, the scale of displacement impedes the ability of individuals to relocate outside areas with which they were familiar and had family and friends in the past that have since become dispersed by the conflict.” Ms Laizer notes the conclusions as to risk reached in AA and in BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) but rejects these on the basis that “…the conditions that led to their formulation are no longer the same.” She observes that the appellant’s “collateral profile” is that of a Sunni Arab from the Kartany tribe and that he is the son of a Ba’ath Party functionary who served the previous regime as a nuclear scientist. She considered it likely that the files of the appellant’s father would be “on record and in the hands of the state.” She also noted that the appellant had “plausibly claimed that his family was dispersed in all directions.”
5. I shall deal first with the appellant’s evidence regarding his uncle. I refer to my error of law decision, in particular at [4]. I did not set aside the finding of the First-tier Tribunal Judge (indeed, a finding based upon the appellant’s own admission) that he had family members in the country who may be able to assist in his reintegration. As Mr McVeety (who appeared for the respondent at the error of law hearing) had pointed out, the appellant’s uncle had paid for him to escape to the United Kingdom. In oral evidence, the appellant told me that he had lost contact with his uncle in 2016. Given that the uncle was living in Baghdad (communications with the outside world would, from the background material, appear to be reasonably sound) and given the finding of the First-tier Tribunal Judge on this point I do not accept that the appellant has lost touch with his uncle or, that if he has lost touch with him, that it would not be impossible or very difficult to re-establish communication. I find that the appellant is, contrary to what he claims, is in contact with his uncle or he could contact him should he wish to do so.
6. I refer to Ms Laizer’s report and to the summary of its conclusions which I have set out above. Ms Laizer was of the view that it was very difficult for individuals to “relocate outside areas with which they are familiar or have friends and family in the past”. By relocating to Baghdad, I find that this appellant would be able to establish contact with his uncle or other relatives who would be in a position to assist him. Further, as regards Ms Laizer’s report generally, I am not persuaded that she has in any way dislodged the guidance contained in AA and BA. At page 5 of her report, she considered that BA, despite having been recently promulgated, was “now out of date.” The primary reason for reaching that conclusion was that the case predated the campaign to retake Mosul. It is not at all clear why exactly Ms Laizer believed that this particular factor should render the conclusions of the Tribunal in BA (or indeed, in AA) unreliable. There is no obvious connection between the relocation of individuals to Baghdad and a military campaign waged by the Iraqi government against ISIS in Mosul. In the circumstances, I continue to consider the country guidance of AA and BA to be reliable.
7. In BA, the Tribunal provided the following guidance:
(i) The level of general violence in Baghdad city remains significant, but the current evidence does not justify departing from the conclusion of the Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).
(ii) The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.
(iii) The current evidence indicates that the risk in Baghdad to those who worked for non-security related Western or international companies is low although there is evidence to show that insurgent groups such as ISIL are active and capable of carrying out attacks in the city. In so far as there may be a low level of risk from such groups in Baghdad it is not sufficient to show a real risk solely as a perceived collaborator.
(iv) Kidnapping has been, and remains, a significant and persistent problem contributing to the breakdown of law and order in Iraq. Incidents of kidnapping are likely to be underreported. Kidnappings might be linked to a political or sectarian motive; other kidnappings are rooted in criminal activity for a purely financial motive. Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone.
(v) Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.
(vi) Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.
(vii) In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection.
8. Other than being a Sunni Muslim (which the Tribunal in BA explicitly excluded as a risk factor per se) the appellant claims to fear risk in Baghdad because he is the son of a nuclear scientist who worked for the former Ba’ath regime. The Tribunal in BA observed that “individual characteristics ... might amount to a real risk for the purpose of the Refugee Convention Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis.” It is clear from BA that those who primarily are at risk are individuals who have worked for Western or international companies. It is not clear to me from the evidence adduced by the appellant that anyone who might seek to harm him would be reasonably likely to be aware that his father had been a nuclear scientist or, if they became aware, that the appellant would be exposed to risk in consequence. I am not satisfied that, having regard to all the evidence, the appellant would be exposed to risk in Baghdad by way of a combination of his Sunni ethnicity and his father’s previous occupation. On the other hand, I do find the appellant would be able to seek the assistance of his uncle in Baghdad who would assist him in his relocation to that city. In conclusion, therefore, I find it would not be unduly harsh to expect the appellant to relocate to Baghdad. It follows that his appeal should be dismissed.

Notice of Decision
9. This appeal is dismissed on asylum grounds.
10. This appeal is dismissed on human rights grounds.
11. This appellant is not entitled to a grant of humanitarian protection.
12. No anonymity direction is made.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 20 March 2017

Upper Tribunal Judge Clive Lane