Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: PA/03226/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 22nd December 2016
On 29th December 2016

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Mr SKA
Anonymity Direction Made
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Ms A Evan instructed by UK Immigration Legal Services
For the Respondent: Mr E Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

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.
1. The appellant applied for permission to appeal against the decision of the First-tier Tribunal Judge Thomas promulgated on 2nd November 2016. The appellant is an Iraqi national born on 15th August 1998. He originates from Kirkuk a contested area in Iraq and said to be of Kurdish ethnicity. At the date of the hearing before the First-tier Tribunal he was just eighteen years old and he had entered the United Kingdom as an unaccompanied minor.
2. The judge found the appellant had not discharged the burden of proof in respect of his claim that he was threatened and asked to poison bread intended for the Peshmerga, that relocation to the Iraqi Kurdistan Region (IKR) was a viable option for him and he could obtain entry and find employment and seek to remain longer. As such he did not qualify for humanitarian protection and his human rights would not be breached.
3. The appellant appealed on three grounds namely (i) the judge applied the incorrect standard of proof, (ii) the judge failed to give adequate reasons for rejecting the asylum claim and (iii) the First-tier Tribunal Judge erred in her assessment of risk on return and internal relocation.
4. Permission was granted in respect of the third ground only but Ms Evan renewed her application at the hearing before me on the first two grounds. Mr Tufan resisted the application and contested that the judge had given adequate reasoning in her assessment of relocation. For the reasons given below I allow the application to be renewed on the first two grounds.
5. In relation to ground (i) I note that at the outset the judge set out at [4] that there should be 'substantial grounds for believing' that he met the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 and at [5] that the appellant need to prove there was a 'real risk' he would suffer harm contrary to Article 2 and 3.
6. Although the judge set out the standard of proof test initially, when actually applying the test to the facts, she appears to slip into the use of the standard of the balance of probabilities as the decision progresses. At [27] the judge refers to his escape from the bakery as being both 'not plausible' and 'not credible'. At [29] the judge opines that the assessment with reference to the saving of money ''indicates' that they had been saving for sometime which is not consistent with the appellant having to flee Iraq quickly in fear of his safety from these men but suggests that he had planned his exit for some time'. These two points together with one other reason at [28], that the appellant was able to remain hiding in his home for a week without difficulty, amounted essentially to the reasoning for the rejection of his credibility.
7. By paragraph [32] in relation to the assessment of relocation in Iraq, the judge states 'I am not persuaded that the appellant's ID card is not with his mother because in his screening interview, he said it was in Kirkuk, yet in his statement he says it was taken from him in Turkey'. Not only does the judge use the language of 'suggest' but the appellant appears to actually state that the photocopy was in Kirkuk whilst the actual ID was taken from him in Turkey. The possession or access to a CSID is an important issue as stated at [170] of in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) as it is the gateway to accessing services in Iraq. In AA it was recorded that 'The Tribunal will need to know, in particular, whether the person concerned has a CSID. It is only where return is feasible but the individual concerned does not have a CSID that the consequences of not having one come into play'.
8. It would appear that on assessing credibility and key facts relevant to the claim the judge used the wrong standard of proof. That is an error of law.
9. At the outset of her decision the judge notes that 'the appellant was a minor when he left Iraq' but nowhere appears to apply the Vulnerable Witness Guidelines when assessing the discrepancies in the evidence and credibility. The screening and asylum interviews were given when the appellant was a minor. This is relevant to grounds (i) and (ii) and the overall fundamental assessment of credibility.
10. Turning to ground (iii), the respondent accepted in her refusal letter that although the appellant had previously lived in the IKR there was no evidence to demonstrate that he was officially registered there with the IKR authorities and it was concluded that he would in fact be retuned to Baghdad. There was no assessment by the First-tier Tribunal Judge in relation to the factors identified in AA in relation to relocation to Baghdad.
11. Return to the IKR is fact sensitive and the Tribunal needed to look at not just relocation to the IKR but the journey to the IKR from Baghdad where it was accepted the appellant would be returned but also his ability to remain and work long term in the IKR. Indeed and the Tribunal needed to make a detailed and fact sensitive assessment following the guidance set out in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and particularly paragraph 204. That does not appear to have occurred.
"19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR."
12. The Judge erred materially for the reasons identified. I set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to 7.2 (b) of the Presidential Practice Statement.

Signed Helen Rimington Date 22nd December 2016
Upper Tribunal Judge Rimington