Tribunal decisions

The decision

IAC-AH-LR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04072/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 30 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

aso Ali Khder
(no ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: no appearance
For the Respondent: Ms J Isherwood, Presenting Officer

DECISION AND REASONS
1. The appellant appeals with permission against a decision of First-tier Tribunal Judge T Jones promulgated on 8 November 2016 dismissing his appeal against the decision of the Secretary of State that he is a foreign criminal who is to be deported pursuant to Section 32(5) of the UK Borders Act 2007.
2. This matter previously came before me on 26 January 2017 when for the reasons set out in my decision in the annexe to this decision I found that the decision was to be set aside on the basis that the judge made an error of law and I ordered that the matter was to be remade in the Upper Tribunal.
3. I am satisfied that the applicant has been given due notice as to the time, date and venue of the hearing. He has not, however, attended nor has he provided any explanation for not doing so. I am aware that he was previously represented by Duncan Lewis Solicitors and as it transpired at the last hearing there was a possibility that were the decision of the First-tier Tribunal to be set aside he may be entitled once again to obtain public funding to pursue his appeal. There is no indication that that occurred and enquiries made of Duncan Lewis Solicitors indicate that they have not taken instructions from him again. In the circumstances, I am satisfied that it would be in the interests of justice bearing in mind the overriding objective to proceed to determine the appeal today in the appellant’s absence. In doing so I bear in mind that there is no real challenge in the grounds of appeal to the Upper Tribunal to the findings of fact made by the Judge of the First-tier and what is to be determined is primarily the application of relevant country guidance decisions to the facts as already found.
4. The facts as found are set out in the decision of the First-tier Tribunal. The core of the Appellant’s case is that he is a Kurd from Kirkuk and that he cannot return there on account of the violence which prevails there. The judge did not accept the Appellant’s account of what had happened to him in Iraq nor did he accept the applicant’s case is that he would be at risk there on account of his Kurdish ethnicity and because of his family’s work as spies informing on the Kurdish people for the previous Saddam Hussein regime.
5. The findings of fact are set out at paragraphs [33] to [40]. Of note are the findings at [36]- [40]:
36. I do not accept that the events have occurred as the appellant would have me believe. I have sought to give the appellant the benefit of the doubt as regarding his age when making his claim.
37. Taking this into account, there are credibility issues highlighted by the respondent which the appellant just said at the hearing was down to his age at the time of explaining events, it is all such that I cannot find for him even allowing for his age and in seeking to give benefit of the doubt. The differences in the account as pointed out by the respondent (in the refusal letter and by Mr Bose) are stark and I find they go to the core of the claim. I find for the respondent therein for like reasons myself.
38. … It is suggested he be returned to Baghdad where the appellant said at the hearing he knows no one and no one knows him. In the light of all this I find he has not made out his claim that he fears persecution or harm there because of his historic claimed past. He has, oddly, sought a passport from the Iraqi Embassy. If he did this albeit this was by telephone as he claims that it seems odd that he would seek a travel document to a country where he has fears.
39. He said at the hearing, if he had papers, he would be the same as other people there and could make his way, make a living and a life there. This is what he has said at the hearing despite his appeal. He then immediately revisited what he had said and told me he still had fears for his safety. In overview of all that was said and placed before me in this appeal, I did not consider the appellant’s latter response as given if he were in genuine fear to be credible.
40. Therefore for the reasons I have set out I find that the appellant’s claim lacks credibility; or, that if I were in error in respect of that finding I do not find that the appellant has, based on historic events made out a current entitlement to international protection given the changed circumstances in his home country.
6. The judge then concluded that the applicant had not made out a case pursuant to Articles 2 or 3 of the Human Rights Convention having applied AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC)
7. What is to be decided, given those undisturbed findings of fact and credibility, is whether the appellant would, following the guidance given in BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) be at risk on return because of the accepted characteristics. The factors are set out in the head note in BA:
(i) The level of general violence in Baghdad city remains significant, but the current evidence does not justify departing from the conclusion of the Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).
(ii) The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.
(iii) The current evidence indicates that the risk in Baghdad to those who worked for non-security related Western or international companies is low although there is evidence to show that insurgent groups such as ISIL are active and capable of carrying out attacks in the city. In so far as there may be a low level of risk from such groups in Baghdad it is not sufficient to show a real risk solely as a perceived collaborator.
(iv) Kidnapping has been, and remains, a significant and persistent problem contributing to the breakdown of law and order in Iraq. Incidents of kidnapping are likely to be underreported. Kidnappings might be linked to a political or sectarian motive; other kidnappings are rooted in criminal activity for a purely financial motive. Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone.
(v) Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.
(vi) Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.
(vii) In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection.
8. Whilst it is accepted that the applicant is Kurdish and Sunni, given particularly what he had said about the risks he would face on return as recorded in the decision at [39] and the immediate response which was dismissed by the judge, there is insufficient evidence before me to demonstrate that, on the lower standard of proof, that either being Kurdish or Sunni would cause him significant problems. I accept that he is not entirely fluent in Arabic but I am not satisfied that this in and of itself would cause him difficulties given his evidence at [39]. It is not in doubt that he would be returning to Iraq after a significant period of having lived in the West and this may, following the fourth point in the head note in BA Iraq, put him at some risk. I am not however satisfied that that is in and of itself sufficient to show that he is at risk of ill-treatment of sufficient severity to engage article 3, or demonstrate that it would be unduly harsh or unreasonable to expect him to relocate there, bearing in mind also that it is not at all clear what contact if any he has with Baghdad or in Iraq. His account of that was comprehensively disbelieved by the Judge of the First-tier and that finding is preserved.
9. Taking these factors into account cumulatively, and viewing the evidence as a whole and bearing in mind the sustainable findings of fact made by the First-tier Tribunal I consider that properly applying the guidance set out in BA Iraq, the appellant has not even to the lower standard of proof, shown that he is at real risk of ill-treatment on return to Baghdad of sufficient severity to engage Articles 2 or 3 of the Human Rights Convention; or, that it would, given the risk in his home area, be unreasonable or unduly harsh to expect him to relocate to Baghdad.
10. I now turn to the separate issue which is whether his return is feasible.
11. Whether or not his return is feasible is dependent in reality on what documents would be available for him and what documents he could obtain. Again the evidence as to what documents he would be able to obtain is dependent upon his evidence and on his credibility. If, as appears to be his case, he is asserting that he would be unable to get any of the relevant documents including CSID or for that matter an Iraqi passport it is for him to show that that is so. I bear in mind also that the judge did not accept that the applicant had in fact tried to obtain an Iraqi passport. I am not therefore satisfied on the basis of the evidence before me that return would not be feasible as the appellant has not shown even to the lower standard of proof that he could not obtain the necessary document which would allow him to obtain an Iraqi passport and/or laissez-passer or some other document which would allow him to return nor for that matter has he shown that he would be unable to obtain a CSID or any of the other necessary documents which he would require to live in Iraq either before returning or shortly after his arrival.
12. In these circumstances, the appellant has not shown, even to the lower standard of proof, ether that return is not feasible or that as a consequence of not having any or all of the relevant documents that he would be subjected or would suffer such circumstances such as destitution, inability to obtain work or to obtain food or shelter such as to engage Article 3 or Article 2 of the Human Rights Convention. If however, I am wrong on that and it is not feasible to return the appellant to Iraq I am not satisfied that this would engage Article 2 or 3 of the Human Rights Convention as I am not satisfied that any harm that would flow from that decision is sufficient to engage the relevant threshold.
13. For these reasons I find the applicant has not shown on any basis that the decision of the Secretary of State would in this case be in breach of Articles 2 or 3 of the Human Rights Convention. I should add for completeness that these are the only two Articles raised; there was no proper challenge in the grounds of appeal in this case to the First-tier Tribunal’s findings that Article 8 would not be breached. Further, there was no challenge to the finding that, as the certificate made pursuant to section 72 of the Immigration and Asylum Act 1999 was upheld, the appellant was not entitled to the protection of Refugee Convention,
14. In conclusion, therefore, I make the following decisions
(1) The decision of the First-tier Tribunal did involve the making of an error of law and I set it aside.
(2) I remake the decision by dismissing the appeal on all grounds.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal did involve the making of an error of law and I set it aside.
2. I remake the decision by dismissing the appeal on all grounds.
3. No anonymity direction is made.

Signed Date: 29 March 2017

Upper Tribunal Judge Rintoul

ANNEX – ERROR OF LAW DETERMINATION

IAC-FH-LW-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04072/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26 January 2017

Extempore
…………………………………

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

Aso Ali Khder
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: in person
For the Respondent: Mr S Walker, Presenting Officer

DECISION AND REASONS
1. The appellant appeals against the decision of First-tier Tribunal Judge T Jones promulgated on 8 November 2016 in which the judge dismissed the appellant’s appeal against the decision of the Secretary of State that he is a foreign criminal who is to be deported pursuant to Section 32(5) of the UK Borders Act 2007. The judge found that the appellant had not rebutted the presumption set out in Section 72 of the Act and thus was excluded from protection under the Refugee Convention and also from humanitarian protection. He accepted that the appellant is originally from Kirkuk and would be returned to Iraq.
2. Much of the findings were based in relation to AA (Iraq) and the guidance is set out at paragraph [47] of the judge’s decision. The question that the judge addressed was whether the appellant’s deportation to Baghdad would create a real risk of a breach of the appellants Article 2 and Article 3 rights. Much of the feasibility of return and internal relocation relates to the availability of documents. The judge concluded that there would in this case be no breach of Articles 2 and 3. He also concluded it would not be a breach of Article 8.
3. The appellant sought permission to appeal on two grounds: first, that the judge failed to make reasonable findings about the feasibility of return to Iraq; and second, failed to properly consider the background evidence in relation to obtaining a civil status identification document from the Iraqi authorities. There is no challenge to the findings with respect to the Refugee Convention or, for that matter, that there would not be a breach of Article 8 to return the appellant to Iraq.
4. Permission to appeal was granted by First-tier Tribunal Judge Andrew on 12 December 2016. Since permission was granted, the Upper Tribunal has handed down a country guidance case entitled BA (Returns to Baghdad) Iraq CG [2017] UKUT 18.
5. It is of course evident that the judge could not have known of this material, but nonetheless it is of specific relevance to the facts of this case, as both parties agree. Mr Walker very candidly accepted that in light of the new Country Guidance decision the First-tier Tribunal’s decision could not stand and needs to be set aside and remade.
6. I am satisfied that that was the correct approach to take and I am satisfied that the decision must be remade in respect of the findings of the feasibility of return and the difficulties of returning the appellant to Baghdad, and of whether there is a possibility of internal relocation, or a sufficiency of protection for him in Iraq.
7. Accordingly, for these reasons, I conclude as follows:-
(a) That the decision of the First-tier Tribunal involved the making of an error and I set it aside.
(b) The decision must be remade in the Upper Tribunal on the issues I have already identified.
SUMMARY OF CONCLUSIONS
1. The decision of the First-tier Tribunal involved the making of an error of law, and I set it aside.
2. The decision will be remade in the Upper Tribunal.
3. If either party wishes to rely on any further material, it must be served on the Upper Tribunal at least 10 working days before the next hearing

Signed Date: 3 February 2017

Upper Tribunal Judge Rintoul