Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03584/2015

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 16 February 2017
on 21 February 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

MOAED [Y]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

For the Appellant: Miss L Irvine, Advocate, instructed by Katani & Co, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a decision by First-tier Tribunal Judge Bradshaw, promulgated on 6 October 2016, dismissing his appeal against refusal of protection.
2. Ground 1 alleges error in the findings on whether the appellant was entitled to protection, in any of its legal forms, and ground 2 alleges error in the findings on internal relocation. These grounds are rather intricately framed. Miss Irvine acknowledged that they are closely linked and said that the case came down to the assessment of the viability of relocation to Baghdad. The nub is at paragraph 13 of the grounds, which says that the tribunal "? overstated the position as to whether the appellant would be able to obtain a replacement CSID. It has, in any event, expressly found that the appellant would not have any family or other support in Baghdad and so would have been bound to find, had it properly directed itself regarding AA, to find that the NSID route ? was not a realistic option ? The tribunal having erred as to the likelihood of the appellant being able to obtain identity documentation and so obtain employment, has gone on to err as to the reasonableness of internal relocation."
3. Ground 3 is that the tribunal erred as to section 8 of the 2004 Act, taking it as imposing a requirement to find credibility damaged. Ground 4 criticises the adverse credibility findings more generally. Miss Irvine submitted that those findings were not reasonably open to the tribunal.
4. Mr Matthews addressed firstly the credibility grounds. He contended (with some justification) that at paragraph 108 the judge made no error about section 8, rather he applied his finding, reached for several earlier and separate reasons, that the appellant had not been an accurate informant to the respondent. He submitted that the judge's reasons for finding the appellant not to be a generally credible witness were sound, and so the appellant had established no more than that he is a Sunni Arab, with no characteristics such that he could not properly be returned to Baghdad.
5. At this stage in submissions a difficulty emerged with the decision, although not one directly targeted by the grounds. The arguments for the appellant were based on his having established that he had no CSID and no family or friends in Baghdad. Mr Matthews was not prepared to accept that such were the tribunal's findings.
6. The respondent was further not prepared to concede that the UT should dispose of the case simply by resolving the alternative argument that the appellant did not succeed, even without a CSID or family or friends in Baghdad.
7. The judge was at pains to deal thoroughly and clearly with the case, and did not find the appellant generally credible; see for example paragraphs 78 - 79 and 84 - 86. Unfortunately, however, he did not put matters with his usual clarity at paragraph 102, which reads (emphases added):
I would find as follows: -
(a) The appellant does not have a CSID according to his own evidence ... The respondent is correct ? that the appellant can apply for formal recognition ? via the national status court ?
(b) The appellant can speak Arabic.
(c) The appellant has no family or friends in Baghdad according to his evidence.
?
(e) According to the appellant's evidence he has no family members or friends in Baghdad and accordingly would not be able to find a sponsor to access a hotel room or rent accommodation.
(f) The appellant is a Sunni Muslim.
?
8. The appellant reads these as findings that his contentions about a CSID, family and friends were proved. The respondent says that they are not such findings, and that the tribunal's final conclusions apply even if the appellant has no such resources.
9. Both parties can find some support for their reading in the rest of the decision. It is not clear whether the tribunal found for or against the appellant on those points.
10. The tribunal may have held against the appellant even on the alternative that the points were resolved in his favour, but that is not free from doubt either, and the respondent was not prepared to take the case subject to that restriction.
11. Without conceding any of the grounds of appeal as pleaded, Mr Matthews said that the respondent could not oppose the setting aside of the decision.
12. Parties agreed that the outcome should be a rehearing in the FtT before another judge.
13. There is a related point of confusion which should be recorded, to avoid further difficulty.
14. Paragraph 35 of the respondent's decision states, "You have family members in Baghdad".
15. As recorded at paragraph 26 of the tribunal's decision, that is conceded to be an error; "there was no evidence that the appellant had family in Baghdad".
16. The concession is that the respondent made a slip in thinking that positive evidence of family members in Baghdad was before the decision-maker. It goes no further. It is not an acceptance that the appellant as a matter of established fact has no family members in Baghdad.
17. The decision of the FtT is set aside. None of its findings are to stand, other than as a record of what was said on that occasion. The nature of the case is such that it is appropriate in terms of section 12(2)(b)(i) of the 2007 Act and of Practice Statement 7.2 to remit the case to the FtT for an entirely fresh hearing.
18. The member(s) of the FtT chosen to consider the case are not to include Judge Bradshaw.
19. No anonymity direction has been requested or made.

20 February 2017
Upper Tribunal Judge Macleman