Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03578/2016

THE IMMIGRATION ACTS

Heard at Vernon Street, Liverpool
On 05 January 2017
Decision & Reasons Promulgated
On 10 January 2016

Before

The Hon. Mr Justice McCloskey, President

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KAN
Respondent

Representation
Appellant: Mr C Bates, Senior Home Office Presenting Officer
Respondent: Mr G Brown, of Counsel, instructed by Broudie Jackson Canter Solicitors

ANONYMITY DIRECTION

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

DECISION
1. For the reasons elaborated in my ex tempore judgment given at the conclusion of the hearing, I have decided that there is no merit in the Secretary of State's appeal and it must be dismissed accordingly. (I shall continue to describe KAN as the "Appellant".)
2. Two grounds of appeal were canvassed. I quote from the written formula:
"The FTJ fails to appreciate that the Appellant, when served his asylum decision, was given information about seeking help from Assistant Voluntary Returns ['AVR'] which can help with the costs of travel and tickets."
It was common case that the Appellant would be returned to Baghdad in Iraq, from whence he would have to attempt the journey to the "IKR" area. The Tribunal, in this context, stated at [27]:
"When considering the practicalities of travel from Baghdad to the IKR, I cannot be satisfied that this can be achieved without the Appellant being put at risk of serious harm. The presenting officer accepted he would be at risk in Baghdad. He has no friends or family there to assist him. The Home Office does not propose to make arrangements for his journey from Baghdad to Irbil, by air or otherwise and this would therefore presumably be up to the Appellant to organise. He has no known funds and no family to assist him with this either in Baghdad or in the IKR."
3. I conclude that this ground of appeal has no merit because, firstly, the availability of the AVR Scheme did not feature anywhere in the Secretary of State's decision and, in particular, in the section entitled "Internal Relocation". In reality the Appellant would be returning to Baghdad destitute and alone and the AVR Scheme would, in principle at least, have been a factor to consider concerning the issue of the reasonableness and viability of internal relocation. However, it was not raised. tThis analysis is not altered by the cursory and unparticularised mention of AVR in the pro-forma served with the impugned decision.
4. Secondly, I readily infer that the AVR issue was not canvassed at the hearing before the FtT. Thirdly, and in consequence, it was not addressed in the decision of the FtT. Finally, and in any event, there is no evidence even at this remove that AVR could extend to provide this Appellant with the practical, financial and other support required for his specific needs and purposes.
5. For this combination of reasons, the first ground of appeal must fail.
6. The second ground of appeal focuses on the next succeeding passage in the decision of the FtT:
"There would also** appear to be no certainty that he would be able to go to the IKR. The background information [CIG] suggests only that he 'may be able to' ?.. and states 'it is worth reiterating the point that admission does remain at the discretion of Kurdish immigration and border officials and that temporary restrictions can be imposed and withdrawn without notice'. Even if he were to gain temporary entry, it is by no means clear that he would be able to remain permanently."
[** my emphasis]
The essence of the challenge to this passage is that the Tribunal engaged in impermissible speculation.
7. I find that this complaint has no substance. The Tribunal, appropriately and accurately, quoted from the Secretary of State's CIG. The passage quoted identifies two possibilities: first, that admission to the IKR is not guaranteed and, second, that admission could be followed by "expulsion". The Tribunal went no further than to take these two possibilities into account. This did not entail any error of law.
8. Further, and in any event, it is clear from the highlighted word "also" that this part of the Tribunal's reasoning is severable from the immediately preceding passage and, being free standing, has no influence or effects beyond its self-contained boundaries.

Decision
9. For the reasons elaborated above, I affirm the decision of the FtT and dismiss the Secretary of State's appeal.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 05 January 2017