Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04150/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 12 October 2016
On 8 December 2016

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Dph
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr Diwnycz, Senior Home Office Presenting Officer
For the Respondent: Ms N Wilkins, of Counsel

DECISION AND REASONS
1. I shall refer to the appellant as the respondent and to the respondent as the appellant (as they appeared respectively before the First-tier Tribunal). The appellant, DPH, was born in 1998 and is a male citizen of Iraq. By a decision dated 31 March 2016, the respondent refused the appellant's application for asylum. The appellant appealed to the First-tier Tribunal (Judge Saffer) which, in a decision promulgated on 11 July 2016 allowed the appeal on asylum and human rights (Articles 2/3) grounds. The Secretary of State now appeals, with permission, to the Upper Tribunal.
2. The grounds of appeal are short and I shall set them in full:
A judge of the First-tier Tribunal has made a material error of law in the determination.
At paragraph 33 the judge finds that
(a) he is not returnable to Iraq for the absence of any necessary documents (sic). This and the language of the CG [country guidance] was a case in which a return was not therefore feasible - and as a consequence of HF (Iraq) [2013] EWCA Civ 1276 the FTT had to consider whether the risk claimed was distinct from the question of risk arising from the absence of a relevant document. The judge therefore erred in his/her finding of risk on return.
3. The application for permission to appeal was refused in the First-tier Tribunal but granted in the Upper Tribunal where Upper Tribunal Judge Kekic observed that
arguably in making these findings [for the appellant did not have a civil status identity document (CSID) and would be returned unreturnable to Baghdad...and would be unable to access basic facilities in Iraq] the judge failed to consider [that is] failed to consider whether the claimed risk of persecution was distinct from the risk arising from the absence of a relevant document and therefore failed to apply country guidance.
4. At [33], Judge Saffer wrote:
The Iraqi authorities will allow [the appellant] to enter Iraq only if he is in possession of a current or expired Iraqi passport or a laissez passer which he has not. He is not therefore returnable to Baghdad. He does not have a civil status identity document (CSID). The respondent has not demonstrated what, in any, an identification document would lead the Iraqi authorities to issue him with a passport or laissez passer or that they intend to do so. As he has no CSID he will not be able to access financial assistance from the authorities, employment, education, housing or medical treatment.
5. The judge accepted the appellant is from Mahmour a region of Iraq currently disputed by ISIL (or ISIS) and that the appellant's father is a peshmerga fighter. The appellant is of Kurdish ethnicity.
6. The current country guidance is AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC). As Ms Wilkins of Counsel explained in her helpful skeleton argument, the Tribunal in AA sought to resolve attention arising in cases where return is not feasible at any given time on account of an absence of appropriate travel documentation. The Tribunal discussed the Court of Appeal decision in HH (Somalia) [2010] EWCA Civ 426 and HF (Iraq) [2013] EWCA Civ 1276. At [169], the Upper Tribunal in AA wrote:
On one reading of HF (Iraq) - particularly the highlighted passage in paragraph 101 - the impossibility of return could be said to make it unnecessary to hypothesise any risk to an appellant in the country of proposed return, whether or not stemming from a lack of documentation or similar problem. We do not, however, consider that the Court can be taken to have intended such a reading. There may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of lack of documentation. Were Nazi persecution of the Jews occurring today, it would clearly subvert the purpose of the Convention to deny refugee status on the basis that, regardless of what might happen to appellants on return because they are Jewish, they cannot in practice be returned (whether because of documentation or mere refusal to admit Jews to Nazi Germany). For this reason, we consider that the judgment in HF (Iraq) does not preclude a claim to international protection from succeeding, insofar as the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person's actual return unfeasible.
The Tribunal went on to consider the particular terms of the circumstances of the appellant in AA at [207]:
Given that the appellant's return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraphs 169 and 170 above, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation and that an applicant should not be precluded for pursuing a claim to international protection in circumstances where the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person's actual return unfeasible.
7. I accept Ms Wilkins submission at [11] that it should be possible to establish whether an Iraqi asylum seeker would be returning to Iraq with a CSID or not; such an individual would, of course, be able to return to enter Iraq using a laissez passer or valid passport. In the case of the present appellant, I agree with Ms Wilkins that Judge Saffer found that he does not have a CSID, cannot obtain one whilst still in the United Kingdom and will be unable to obtain one upon entering Iraq. It is true that at [33] (see above) the judge appears to find that the appellant will not be leaving the United Kingdom because he will not be able to obtain a passport or laissez passer. However, in concluding paragraph 33, the judge draws attention to the fact that the appellant's failure to obtain a CSID would render him incapable of receiving financial assistance, employment or education housing. In his analysis, Judge Saffer has conflated the feasibility of return dependent upon possession of the correct documentation and the risk to which the appellant would be exposed if he were to be in Iraq because he did not possess and would be unable to obtain a CSID. At [38] Judge Saffer finds that
it would be unduly harsh and unreasonable to require a traumatised 18 year old young man who has lost?contact with his family, and his home to go [to Baghdad] especially as he is a Kurd and there is no evidence he speaks Arabic.
These additional findings by Judge Saffer bring me to Ms Wilkins' alternative submission (skeleton argument) [17]. Ms Wilkins submits that Judge Saffer has given "sufficient other reasons" why it would be unreasonable for the appellant to relocate to Baghdad even where his possession or lack of a CSID was not a relevant consideration. The Tribunal in AA considered the "position on documentation where return is feasible" at [204] C:
C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
9. Having a CSID is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).
10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.
11. Where P's return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
8. As Ms Wilkins pointed out, the Tribunal in AA clearly believed that it had absolved the tension of the Court of Appeal authorities when it applied its own guidance to the facts of the appellant in AA at [207] (see above).
9. Whilst I am aware that country guidance exists in order to provide general principles as regards risk to particular groups and individuals returning to, as in this case, Iraq and whilst I find that it is generally unhelpful to compare the specific facts relating to different individual asylum seekers, the fact remains that, notwithstanding the fact that the appellant in AA was not returnable to Iraq, the Upper Tribunal remitted the appeal to the First-tier Tribunal to carry out a further fact-finding exercise. [209] the Tribunal noted that "as a consequence of the passage of time the situation in Iraq for the appellant's family may have changed. Findings are required in this regard." In the present appeal, we have a relatively recent fact-finding exercise conducted by Judge Saffer in the First-tier Tribunal. Given the principle established in AA (that the fact an individual may not be returnable to Iraq does not necessarily exclude a claim for international protection succeeding), I am not satisfied that the grounds of appeal in this particular case have succeeded in establishing that Judge Saffer erred in law. I agree with Ms Wilkins that Judge Saffer, even if he did err in law by conflating and confusing the relevance of documentation to feasibility of return and risk following return, has given sufficient reasons for concluding that this particular appellant should be granted international protection. Finally, I am aware that AA is subject to an appeal to the Court of Appeal. However, applying the relevant law and jurisprudence as at the date of the hearing in the Upper Tribunal and for the reasons which I have given, I find that the Secretary of State's appeal should be dismissed.
Notice of Decision

This appeal is dismissed.

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 their 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 7 December 2016

Upper Tribunal Judge Clive Lane

No fee is paid or payable and therefore there can be no fee award.

Signed Date 7 December 2016

Upper Tribunal Judge Clive Lane