Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03443/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision & Reasons Promulgated
On February 21, 2017
On March 15, 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE ALIS

Between

Mr D I S
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Blair, Counsel, instructed by Hasan Solicitors
For the Respondent: Mr P Bates (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. The appellant is a national of Iraq. The appellant first entered the United Kingdom on October 8, 2005 and claimed asylum. The respondent refused his application on April 1, 2016 under paragraph 336 and 339M/339F HC 395.
2. The appellant appealed that decision on April 6, 2016 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 and his appeal came before Judge of the First-tier Tribunal Graham (hereinafter referred to as the Judge) on October 5, 2016 and in a decision promulgated on October 17, 2016 the Judge refused his appeal on all grounds.
3. The appellant appealed the Judge’s decision on November 2, 2016 and permission to appeal was initially refused by Judge of the First-tier Tribunal Grant on November 14, 2016. Permission to appeal was renewed on November 30, 2016 and Deputy Upper Tribunal Judge Taylor granted permission to appeal on December 14, 2016 finding all grounds arguable.
4. The matter came before me on the above date and I took submissions from the two representatives.
5. I extend the anonymity order under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended).
SUBMISSIONS
6. Miss Claire adopted the grounds of appeal and submitted the Judge had erred. Grounds one and two of the grounds were connected in that when assessing the appellant’s ability to relocate and “very significant obstacles” the Judge would have had to regard to similar factors albeit two different outcomes could be reached. Miss Claire submitted the Judge had to have regard to the appellant’s ability to obtain employment and the lack of funding being made available to the Iraqi Kurdish Region (IKR) by the Baghdad central government. The Judge in assessing both internal relocation and paragraph 276ADE HC 395 failed to give these factors sufficient weight. The Judge made a finding on the identity document that had been submitted at the hearing in circumstances where the respondent had not submitted the documents were false or fraudulent. The Judge found the document unreliable but asked no questions of the appellant and held it against the appellant that there was no witness statement from the person who brought the document to the appellant. The respondent had the burden of proving the document was not reliable and the Judge wrongly applied the burden of proof. The Judge had accepted he was Iraqi and there was other evidence supporting his claim he was from Jalawla and it followed that he was unable to be returned there. Miss Claire invited me to find there was an error in law.
7. Mr Bates relied on the Rule 24 response dated January 6, 2017. He submitted the identity document was only produced at the hearing and the fact copy documents had been produced in the bundle did not place any burden on the respondent to examine them. Whilst no questions were put to the appellant the Judge was entitled to look at the document in the round in light of the fact he had given reasons between paragraphs [34] and [39] for why he rejected his claim to come from Jalawla. In any event, the issue in this appeal was internal relocation and the Judge concluded that as a Kurd it was open to him to be returned to the IKR. The appellant was a young male with no adverse medical history and would be able to seek work like any other male his age. The Judge had not ruled out the possibility the appellant came from or had relatives living in the IKR but even if he did not come from the IKR the Tribunal had made clear that all Kurds would be admitted to the IKR and there was no evidence that any Kurd was removed or required to leave the IKR. He submitted that the findings made were open to the Judge
8. Having heard these submissions, I reserved my decision.
DISCUSSION AND FINDINGS
9. The appellant claimed he was from Jalawla. This was rejected by the respondent and this was one of the issues the Judge had to address in her decision as she stated at paragraph [32] of her decision. The Judge made clear she had to consider the evidence in the round and from paragraph [33] she made findings on the evidence that had been presented to her.
10. The Judge noted the following:
(a) The appellant could not say when ISIS took over Jalawla when he was interviewed. He could not say when the city was re-captured. These were significant dates in the calendar and his inability to give this information undermined his claim to come from Jalawla.
(b) He blamed his lack of memory on an injury he suffered after being hit on the head with a shovel by his father but he failed to mention this until much later or alternatively he blamed his poor memory on being illiterate and the Judge found this to be a factor she should have regard to.
(c) The Judge identified inconsistencies about ISIS/DAISH between his witness statement and his oral evidence.
(d) He answered some question correctly about the local economy and what crops were grown and he was able to name nearby towns.
(e) He was unable to name the main road in Jalawla and a river local to Jalawla.
(f) The ID card was produced at the hearing and she assessed this in the round.
11. These findings were crucial to the Judge’s assessment of where the appellant came from and his credibility.
12. Miss Claire, in her third ground, challenged the Judge’s approach to the ID document. The original appeal hearing was on October 5, 2016 and a bundle of documents was served on the respondent on September 9, 2016. Contained within the document was a copy of the appellant’s ID card. The original was produced at the hearing and Miss Claire submits that the Judge should have raised with the appellant any concerns she had over that document. Instead, Miss Claire submitted the Judge made findings on the premise the appellant had not provided evidence the document was genuine. Mr Bates argued that the Judge considered the evidence in the round and concluded he was not from Jalawla for the reasons given in the Judge’s decision.
13. Miss Claire agreed that even if the Judge’s approach was flawed on this issue this on its own would not amount to an error of law unless it could be shown the Judge had erred for the reasons set out in one of the other grounds.
14. The evidence of the passport was important evidence and the fact the respondent did not appear to take issue with those documents on the date of hearing maybe something the Judge should have had regard to. If the respondent felt unable to cross-examine the appellant about the document it nevertheless remained open to her representative to make the submission the Judge herself made in paragraph [39].
15. For the Judge to reject the document she would have to give reasons and set out why she reached that conclusion. In paragraph [39] the Judge noted the respondent was unable to verify the documents as they were only produced on the morning of the hearing. She therefore stated that she would consider the documents in the round. The Judge noted that during his interview he denied having any other national ID documents but in September 2016 (five months later) he produced copy documents to his solicitors. The Judge also noted no evidence to support his claim of how he came to receive the document was adduced. The Judge clearly considered the fact the respondent asked no questions about the document but ultimately she had to make a finding about his origins and she not only took these factors into account but she also rejected his evidence that his passport was posted back to Iraq as she found this inconsistent with an answer he gave in his interview. Added to these concerns were the Judge’s adverse findings on his knowledge of the area and what happened involving ISIS. The Judge gave a number of reasons for rejecting his claim to come from Jalawla.
16. Taking all of these factors into account I am satisfied that the Judge has explained why she made the findings she did about the document and those reasons were open to her based on the findings she made. She did not wrongly apply the burden of proof and I am satisfied that the finding she made on the document was one that was open to her having regard to all of the evidence about the appellant’s claim to have come from Jalawla. I therefore find that Ground Three has no merit in this appeal.
17. Grounds One and Two are connected because they both challenge, albeit under different headings, the Judge’s consideration of whether it was safe to return the appellant to the IKR.
18. Even if the Judge had found the appellant came from Jalawla it seems agreed that he could not return there as it was a contested area. If he could not return to his hometown the Judge had to consider return to either Baghdad or the IKR. As a Kurd the Judge considered a return to the IKR and discounted a return to Baghdad.
19. Miss Claire submitted that the assessment was defective as the Judge failed to place sufficient weight on his lack of work experience and the deteriorating circumstances in the IKR.
20. The Tribunal in AA (Article 15(c) Iraq CG [2015] UKUT 00544 considered the circumstances where return to Iraq may be possible. The Judge ruled out a return to any contested area or Baghdad. As a Kurd with possible links to the IKR, for reasons given in paragraph [43] of the decision, the Judge found he could return. She effectively ruled out a return to Baghdad because he had no connections there, no sponsor and did not speak Arabic.
21. Miss Claire submitted that the Judge did not engage with the humanitarian situation in the IKR but at paragraph [45] the Judge does engage because she referred to this issue and the content of the counsel’s skeleton argument. Paragraphs [17] to [20] of that skeleton argument considered return to the IKR and all of the issues raised by Miss Claire at today’s hearing were addressed in her skeleton argument that was before the Judge.
22. The Judge did not have to go through every point as long as she demonstrated an engagement with the document. She concluded, “I am satisfied that the appellant’s representatives has not produced very strong grounds supported by cogent evidence to allow me to depart from the findings in AA therefore even if this appellant is found not to have originated from the IKR or to have connections there, I find it is reasonable to expect him to relocate there.”
23. I am therefore satisfied that the Judge’s approach to the issue of internal relocation is sustainable.
24. The second ground of appeal concerned paragraph 276ADE HC 395 and whether there were “very significant obstacles” to him returning. The Judge adopted the findings she made in the asylum decision and concluded with reasons, why the appellant could not satisfy this requirement. The Judge gave reasons open to her and consequently I find the appellant has no erred on this issue.

Decision
25. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. I uphold the original decision.

Signed Dated

Deputy Upper Tribunal Judge Alis

TO THE RESPONDENT
FEE AWARD

I make no fee award as I have dismissed the appeal.

Signed: Dated: 1 March y

Deputy Upper Tribunal Judge Alis