Tribunal decisions

The decision

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03844/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2 March 2017
On 8 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE HILL QC

Between

s Q
(anonymity direction made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Halim, counsel, instructed by BHT Immigration Legal Services
For the Respondent: Mr J Parkinson, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal from the decision of First-tier Tribunal Judge M P W Harris, promulgated (or at least dated) 7 November 2016.

2. The Appellant was born on 2 July 1995 and is a citizen of Iraq. He appealed the Respondent’s decision to refuse claims made, respectively, on asylum, humanitarian protection and human rights grounds. The Judge dismissed his appeal on each.

3. The Judge’s decision fully summarises both the oral and documentary evidence which was before the First-tier Tribunal, and examines the Respondent’s reasons for refusal. The decision makes specific findings of fact on humanitarian protection, the assessment of risk and the issue of internal location. The Judge broadly accepted the events related by the Appellant as credible and plausible. He further accepted that it would be impossible for the Appellant safely to return to his home area in Iraq. The substantial issue which proved dispositive of the appeal was whether or not the Appellant could reasonably relocate within Iraq, in this instance to Baghdad.

4. Permission to appeal was granted by Upper Tribunal Judge McWilliam primarily in relation to an alleged failure on the Judge’s part to take into account the Appellant’s Kurdish ethnicity. Mr Halim, who acts today for the Appellant, did not pursue that discrete ground with any vigour. He did so, I suspect, in the light of the Respondent’s Rule 24 response which drew attention to paragraph 13 of the decision where the Judge recorded:

“The appellant’s father is an Arab and his mother is Kurdish. The appellant speaks Arabic and a little Kurdish and English. Because the appellant’s father is an Arab and the appellant was born in the Kirkuk area, Iraqis treat the appellant to be an Arab and not a Kurd. The appellant himself identifies as being Arabic.”

5. It was entirely proper on the part of Mr Halim (who had not settled the Grounds of Appeal) not to pursue this aspect since it transpires it is unarguable. Nonetheless, the grant of permission concludes that “the grounds are arguable”, with no restriction, notwithstanding the obvious focus of the grant.

6. Mr Halim skilfully cast his appeal not by reference to an alleged failure to take into account the Appellant’s Kurdish ethnicity, but in relation to other alleged errors of law in the manner the Judge approached the matter, particularly in reference to the country guidance in AA (Article 15(c)) Iraq v The Secretary of State for the Home Department CG [2015] UKUT 00544 (IAC).

7. The thrust of Mr Halim’s submission was that there was a failure on the part of the Judge to give proper regard to a number of factors when examining the question of reasonableness of relocation. He enumerated these by reference to the risk of kidnap, the particular vulnerability of the Appellant by dint of his Sunni religious/political identity and the fact that because the Appellant was not in possession of a Civil Status Identity Document (“CSID”), he would be unable to access services generally, and health and educational services in particular. Mr Halim submits that those three factors should have been “folded into” the assessment of reasonableness when looking at the risk of relocation and the Judge’s decision should have been informed by reference to those factors.

8. The Judge’s decision in this matter is very full and a very careful. The Judge addresses in considerable detail the country guidance to be found in AA (Iraq) as supplemented by the largely unchallenged expert evidence of Dr Alan George, in his report dated 22 September 2016.

9. In the course of his detailed discussion and analysis the Judge makes a number of express findings. In relation to the Appellant’s Sunni identity, the Judge concludes and explains why he is not satisfied of any real risk to the Appellant in Baghdad simply through being Sunni [56]. In relation to the possibility of kidnapping, the Judge’s measured and reasoned conclusion is that the Appellant would not be at real risk of being targeted [57]. The Judge’s express discussion of the CSID card appears later in the decision at [67] and following.

10. From paragraph [64] onwards, the Judge examines whether internal relocation within Iraq is reasonably available to the Appellant. At paragraph [65] he properly identifies the question which he is required to answer, namely whether relocation to the city of Baghdad would be unreasonable or unduly harsh for the Appellant. Paragraph [66] incorporates paragraph 204D(15) of AA (Iraq), which (in the original) is introduced by the sub-heading ‘Internal Relocation Within Iraq (Other than the IKR)’. As the Judge indicates, this is a list of factors which are likely to be relevant in the assessment exercise.

11. The Judge recognises implicitly that the factors are not exhausted and that the issue needs to be determined within the context of the entire factual matrix of any given case. The Judge further acknowledges, and affords considerable weight to, the centrality of a CSID as a means of accessing crucial social and welfare provision. Paragraph [67] reads as follows:

“I accept on the evidence before me that at present the appellant does not have a CSID. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities as well as employment, education, housing and medical treatment. One matter I need to consider when assessing the issue of internal flight to Baghdad is whether the appellant will be able to obtain a CSID.”

12. The Judge looks at this matter in paragraph [68] by specific reference to the country guidance. His conclusion, to be found at the end of paragraph [69] is:

“I find it demonstrated there is a real likelihood that on relocating to Baghdad the appellant would not be able to obtain a CSID.” (emphasis added)

The Judge then deals with the issue of language at paragraph [70] and with the fact that the Appellant has a brother in a relatively senior and well-remunerated position in the military [71]. He also indicates that the Appellant is a healthy, educated young man [73]. He accepts the Appellant will be treated as a Sunni Arab [74].

13. The balancing exercise which the Judge undertakes is at paragraphs 76 and 77. They read as follows:

“76. Two factors I have not yet addressed are whether the appellant can find a sponsor to access hotel or rented accommodation and whether there is support available for the appellant. Here I find I cannot ignore the appellant’s account that his elder brother used to support him and his parents financially: see paragraph 6 of the appellant’s witness statement. The appellant’s brother remains in the armed forces and therefore in receipt of his salary. There is currently a degree of contact between the appellant and his brother. I am satisfied that A Q remains deeply committed to ensuring the well-being of his brother the appellant. On the evidence before me I am not satisfied it is shown that on arrival in Baghdad, the appellant would be unable to maintain contact with his brother or that A Q would be unable to support the appellant financially in Baghdad as he once supported him and his parents in Al Bounajem. Thus, I consider that the availability of financial support from the elder brother should be weighed against any difficulties the appellant would face because of a lack of a CSID and the lack of other friends and family in Baghdad.

77. The Upper Tribunal in AA Iraq held that as a general matter it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City. In the end it is for the appellant to prove his case on internal relocation. Weighing up the evidence before me including the country guidance and the expert evidence of Dr George, while I acknowledge there is a real likelihood of the appellant facing hardships if he relocates to Baghdad, I am not satisfied the appellant demonstrates that, in his own particular circumstances, the situation awaiting him would be of such severity as to make relocation unreasonable and unduly harsh.”

14. Looking at the decision, both compartmentalised and holistically, it is apparent that the Judge correctly turned his mind to all relevant factors, noted those that weighed heavily in favour of the Appellant and those less so. Informed by such assessment, he reached his conclusions plainly and transparently and gave sufficient explanation for his reasoning to be understood.

15. Mr Halim repeatedly emphasised that the Judge did not identify how what Mr Halim describes as the “welfare gap” could be filled. He submits that by not having a CSID, the Appellant will inevitably be prejudiced, particularly in relation to the provision of healthcare, and other services as well. He contends that the Appellant’s brother, although self-evidently willing to assist the Appellant and also proven on the facts to be financially able to do so, is not a state authority and cannot be presumed to supply the shortfall or deficit in relation to the provision of services.

16. The difficulty with Mr Halim’s submission is that these very issues were clearly before the Judge and were expressly determined by him entirely appropriately, having regard to the evidence which was before him.

17. The Judge had the difficult task of deciding whether internal relocation would be unreasonable and unduly harsh. In reaching his conclusions, the Judge did so on a careful and transparent assessment of all the evidence which he had heard and read. It is not for the Upper Tribunal to interfere in the factual findings of, or the exercise of discretion by, First-tier Tribunal judges. The jurisdiction of the Upper Tribunal is limited to cases where there is evident a material error of law on the part of the First-tier Tribunal. There is nothing irrational in the Judge’s findings or conclusions nor can I detect any flaw in his legal approach. On any reading, each of the individual features identified by Mr Halim were clearly (to adopt his own expression) “folded into” the Judge’s assessment of the reasonableness of internal relocation.

18. Mr Halim’s submissions, however able, amount to nothing more than a disagreement with the manner in which the Judge assessed the evidence and exercised his discretion, and/or with the weight he afforded to various component elements of the evidence before him. Perhaps this is why these matters did not expressly feature in the grant of permission by the experienced Upper Tribunal Judge. There is nothing to suggest that there was a material error of law on the part of the Judge. It therefore follows that this appeal must be dismissed.

Notice of Decision

Appeal dismissed and decision of First-tier Tribunal affirmed.

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 Mark Hill QC Date 7 March 2017

Deputy Upper Tribunal Judge Hill QC