Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03643/2016

THE IMMIGRATION ACTS

Heard at Bradford
On 11th April 2017
Decision and Reasons Promulgated
On 24th April 2017

Before
DEPUTY UPPER Tribunal JUDGE KELLY

Between
F A M
(anonymity directed)
Appellant
and

the secretary of state for the home department
Respondent

Representation:
For the Appellant: Mr T Hussain, Counsel instructed by Bankfield Heath Solicitors
For the Respondent: Mrs R Pettersen, Senior Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the appellant against the decision of Judge Hindson, promulgated on the 22nd December 2016, to dismiss his appeal against refusal of his Protection Claim. An anonymity direction was made by the First-tier Tribunal and I extend it to cover these proceedings.
2. The appellant’s case, as he had presented it in his Asylum Interview, was that he hailed from a contested area of Iraq (Kirkuk), that his father had been kidnapped by ISIS in early 2015, and that he (the appellant) had received a threatening letter from ISIS that had caused him to flee to the United Kingdom on the 21st October 2015. More recently, he claimed that since coming to the United Kingdom he has learnt that the Peshmerga are also “after” him.
3. Judge Hindson did not believe the appellant’s account of being threatened by ISIS. As to the appellant’s claim under Article 15(c) of the Qualification Directive, the judge noted that Kirkuk was no longer a contested area, having been “under the settled control of Peshmerga forces for some time now” [paragraph 23]. Thus, whilst relocation to the IKR or Baghdad was not an option, the appellant could (if it were feasible) return to the Kirkuk area where he would be “safe” [paragraphs 27 and 28]. Finally, and in any event, the judge concluded that return to Iraq was not feasible due to the appellant’s lack of a travel and/or identity document. The appeal could not therefore succeed for that reason alone [paragraph 28].
4. Permission to appeal was granted because “the judge has made no reference to the guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 0554”. However, it is apparent from the terms of the grant that this was merely an attempt to distil the detailed grounds that were settled by Mr Hussain. In summary, those grounds are that (i) contrary to the finding of Judge Hindson, Kirkuk remains a contested area; (ii) feasibility of return was not of itself dispositive of the appeal; (iii) even if the judge was right to consider that return was not feasible by reason of lack of documentation, he was required to consider the hypothetical risk of destitution (reaching the threshold for engagement of Article 3) as the result of the appellant’s inability to access the services in respect of which possession of a CSID is the gateway.
5. It is unnecessary to consider the merits of the second and third grounds of appeal. This is because (a) the judge clearly looked beyond what he judged to be the impracticability of return towards the hypothetical risks that the appellant may face in Kirkuk, and (b) the flaw in his assessment of the risk on return to Kirkuk is such that his decision must in any event be set aside and remitted to the First-tier Tribunal for re-hearing, whereupon the merits of a Protection Claim based upon the arguments that underlie the second and third grounds can be fully ventilated.
6. The starting point for the judge’s assessment of whether Kirkuk was a ‘contested area’ was of course the decision in AA (Article 15(c)) Iraq. As Mr Hussain rightly reminded me, the Tribunal found in that case that Kirkuk was a contested area at the time of its decision. It was therefore necessary for the judge to refer to clear and cogent evidence in support of a departure from that finding. Thus, whilst Judge Hindson may well have been right in his assertion that Kirkuk had been “under the settled control of Peshmerga forces for some time” when he made his decision, it was an error of law not to cite evidence in support of it. Mrs Pettersen would have been in a position to show that the error of law was immaterial to the outcome of the appeal if she had been able to point to any evidence that was before me that supported such a finding, regardless of whether or not such evidence had been before Judge Hindson. She was however unable to do so. Given that the judge’s decision was substantially based upon his finding that the appellant would be “safe” in Kirkuk and that internal relocation was not an option, I am left with no choice but to set aside his decision in its entirety and to remit the appeal to the First-tier Tribunal for complete rehearing. As previously noted, this course has the added advantage of affording the appellant an opportunity to argue his free-standing Article-3 claim, based as it is upon the lack of documentation necessary for gaining access to essential services in Iraq. The appellant should however be aware that this will also open the possibility of the respondent adducing further evidence in order to show that the situation in Kirkuk has changed substantially since AA (Article 15(c)) Iraq was decided.
Notice of Decision
7. The appeal is allowed. The decision of the First-tier Tribunal is set aside and remitted to the First-tier Tribunal to be heard afresh before any judge other than Judge Hindson.

Signed
Date: 18th April 2017

Judge Kelly

Deputy Judge of the Upper Tribunal

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 his 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.

Signed Date 18th April 2017

Judge Kelly

Deputy Judge of the Upper Tribunal