Tribunal decisions

The decision

The Upper Tribunal
Immigration and Asylum Chamber) Appeal Number: PA/03209/2015

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 8 February 2017
On 10 February 2017
Prepared on 8 February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HOLMES

Between

M. H.
(anonymity direction MADE)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Boyle, Solicitor, Halliday Reeves Law Firm
For the Respondent: Ms Petterson, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant says that he is a citizen of Iraq who left that country in September 2013 by air for Turkey, and who then entered the UK illegally on 6 August 2015. He made an application for protection upon entry.
2. The Respondent refused that application on 13 November 2015, and the Appellant's appeal to the First tier Tribunal ["FtT"] against that decision was heard on 30 September 2016. It was dismissed on all grounds, in a decision promulgated on 10 October 2016 by First Tier Tribunal Judge Fox.
3. The Appellant was granted permission to appeal that decision on 6 December 2016 by Upper Tribunal Judge Lindsley on the basis it was arguable the Judge had failed to properly consider the acceptance that the Appellant had a well founded fear of return to his home area of Mosul, and that he had no identity documents, and could not therefore reasonably be expected to relocate within Iraq as a result of his inability to acquire as CSID card. Thus it was considered arguable that the decision either did not accord with the country guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 544, or, that it was insufficiently reasoned.
4. The Respondent filed a Rule 24 Notice dated 21 December 2016 in relation to the grant of permission to the Appellant, in which she stated that she did not oppose the grant of permission, and invited the Upper Tribunal to determine the appeal in the light of AA on the basis that the other findings of fact were retained.
5. Thus the matter comes before me.

Error of Law?
6. The Appellant's case was that he is ethnically Arab, a Shia, and a national of Iraq whose family relocated from Baghdad to Mosul in 2003 (the city of his mother's family) following the murder of his father, (who it was said had been targeted for killing as a result of his Ba'ath Party membership). The Judge rejected as untrue both the Appellant's claim that his father had been murdered, and, the claim that his father had been a member of the Ba'ath Party, and, the claim that the Appellant was at risk of any harm as a result of any historic activity on the part of his father, having referred himself to OH (risk - Ba'athist father) Iraq [2004] UKIAT 254. The rejection of that evidence is unchallenged before me.
7. The Appellant's case was that up to the point at which he claimed to have left Iraq for Turkey in September 2013, he had worked for his brother, employed in his brother's car parts business in Mosul. He said that the family lived in a Shia, Arab part of Mosul, and that he was approached by an individual claiming to represent IS and asked to assist their armed struggle - although he accepted that the man who approached him would know that he was a Shia. It was this approach which was said to be the trigger for his decision to leave Iraq. He failed however before the Judge to suggest that his brother, or other members of his family, had ever experienced any adverse attention from any source, and the Judge inferred (as he was entitled to do) that the family all continued to live and trade in Mosul without problems. Having considered all of the evidence the Judge rejected as untrue the Appellant's claim that he had been approached and asked to join any armed struggle, and thus rejected as untrue the core of the Appellant's account of why he had left Iraq. In turn he rejected the basis upon which the appeal was argued; namely, that the Appellant was at risk upon return to Mosul on the basis of an imputed political opinion. The rejection of that evidence, and of the asylum claim in consequence, is also unchallenged before me.
8. The Appellant accepted that he had been issued with identity documents as an adult male by the Iraqi authorities when he had lived in Iraq, and that he had also been issued with his own valid Iraqi passport. He accepted that he had used his own documents to travel from Mosul to Erbil, and in particular, his own passport to board a flight from Erbil to Turkey in September 2013. He claimed to have subsequently lost his passport in the sea. Notwithstanding the terms of the grant of permission, it is in my judgement plain (and both representatives agreed before me that this was the case) that the Respondent made no formal concession that the Appellant was telling the truth when he claimed to have lost his identity documents - she merely acknowledged that this was his claim [16]. As such the Respondent argued a number of alternatives. If he had lost his documents, and genuinely could not obtain the issue of replacements, then his return to Iraq was not feasible. If he had either not lost his documents, or, could be expected to be able to obtain replacements, then his return was feasible, and moreover he either held, or could obtain, a CSID. If he were in possession of a CSID he would be able to access the support available from the Iraqi authorities upon return, and so even if he had to relocate from his home area of Mosul to a safe alternative he would not face destitution upon return.
9. At the date of the hearing the Respondent was prepared to concede that the area of Mosul was for the purposes of an Article 15(c) claim, the subject of an internal armed conflict, and that the Appellant could not therefore be expected to return to that area [15].
10. It is common ground before me that there was no concession by the Respondent that the Appellant's return to Iraq was not feasible, and that the Appellant's representative, expressly, did not himself argue that his return was not feasible. Thus the Appellant's case was argued on the basis that return was feasible, but that the Appellant would nevertheless be unable to obtain the issue of a CSID and thus the Appellant could not reasonably be expected to relocate within Iraq to avoid the risks inherent from the armed conflict in his home area of Mosul. The logical problems with that approach were not addressed.
11. As noted above, the Appellant's case was that whilst he had in the past been issued with identity documents including a passport, he had lost them, and could not easily obtain the issue of replacement documents, because the family records were held in Mosul. It is common ground before me that the Judge's findings in relation to this aspect of the case are unclear. There was no adequate analysis of what documents the Appellant actually held at the date of the hearing. Nor was there an analysis of the documents that he would be able to obtain by way of re-issue, either from the Embassy before departure from the UK, or, within a reasonable period of time from his arrival in Baghdad. Accordingly the analysis of whether return was feasible, and if it were, whether the Appellant faced destitution and thus could not reasonably be expected to relocate from the Mosul area was deficient.
12. In the circumstances both parties were agreed before me that the decision discloses a material error of law that renders the dismissal of the humanitarian protection appeal unsafe, and that this aspect of the decision must be set aside and remade.
13. The consequence is that it would be open to the Respondent to withdraw her concession in relation to the situation in the Mosul area, if she chose to do so and if she had adequate evidence of a change in the situation prevailing in that area. In line with the ordinary principles of common law fairness, that concession should only be withdrawn upon adequate notice to the Appellant to allow him to respond to that altered stance; CD (Jamaica) v SSHD [2010] EWCA Civ 768.
14. I have in these circumstances considered whether or not to remit the appeal to the First Tier Tribunal for it to be reheard, or whether to proceed to remake it in the Upper Tribunal. The Appellant did not attend the hearing, and no interpreter had been booked for the hearing in any event. Thus the appeal must be adjourned.
15. The pragmatic course urged upon me by both parties is to remit the appeal to the FtT, as being more likely to lead to speedy resolution. In the circumstances of this appeal I am satisfied that this is the correct approach. In circumstances where it would appear that the relevant evidence has not properly been considered by the First Tier Tribunal, the effect of that error of law has been to deprive the Appellant of the opportunity for his case to be properly considered by the First Tier Tribunal; paragraph 7.2(a) of the Practice Statement of 25 September 2012. Moreover the extent of the judicial fact finding exercise is such that having regard to the over-riding objective, it is appropriate that the appeal should be remitted to the First Tier Tribunal; paragraph 7.2(b) of the Practice Statement of 25 September 2012. Having reached that conclusion, with the agreement of the parties I make the following directions;
i) The decision upon the asylum and human rights grounds of appeal is confirmed and preserved, as are the unchallenged findings of primary fact made in relation to the Appellant's disputed evidence.
ii) The decision upon the humanitarian protection ground of appeal is set aside, and that aspect of the appeal is remitted to the First Tier Tribunal for rehearing. The appeal is not to be listed before Judge Fox.
iii) An Arabic interpreter is required for the hearing of the appeal.
iv) There is anticipated to be only one witness, and the time estimate is as a result, 3 hours.
v) The appeal is to be listed on the first available date at the North Shields hearing centre after 24 February 2017 for final hearing. No further Directions hearing is presently anticipated to be necessary. Should either party anticipate this position will change, they must inform the Tribunal immediately, providing full details of what (if any) further evidence they seek to rely upon.
vi) The Anonymity Direction previously made by the First Tier Tribunal is preserved.

Decision
16. The decision promulgated on 10 October 2016 did involve the making of an error of law sufficient to require the decision upon the humanitarian protection ground of appeal to be set aside and reheard. Accordingly the appeal is remitted to the First Tier Tribunal on that limited basis with the directions set out above.

Deputy Judge of the Upper Tribunal JM Holmes
Dated 9 February 2017