Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04157/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
on 20 October 2016
on 24 October 2016

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

HAIRISH HADI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr A Caskie, Advocate, instructed by Jain, Neil & Ruddy, Solicitors
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant appeals against a determination by First-tier Tribunal Judge Bradshaw, dismissing his appeal against refusal of recognition as a refugee from Iraq.
2. The appellant is Kurdish and speaks Sorani. He says that Daesh took over his village and detained him with other young men, 23 in all. Daesh killed one each day until there were only 5 survivors. The appellant agreed to infiltrate the Peshmerga as a double agent for Daesh. The Peshmerga immediately suspected him, detained him for 15 days and handed him over to the Kurdish police or security service, the Asayish. He escaped when the vehicle in which police officers were taking him to Kirkuk was involved in a collision. A friend of his father sheltered him for a year, then paid a people smuggler to arrange his departure from Iraq. He claims to be at risk from Daesh, the Peshmerga and the Asayish.
3. The judge found the appellant's account not credible.
4. The grounds of the appeal to the UT are lengthy and discursive. Their gist is:
(i) Error in attaching adverse significance to absence of information provided at the screening interview.
(ii) Approaching the case on the basis that it was agreed removal would be to the KRG, when parties had in fact agreed that any removal would be to Baghdad; failure to consider that on removal to the KRG, the appellant would be at risk from the Peshmerga and the Asayish.
(iii) The appellant said he was fingerprinted twice. It was speculative to presume that the second occasion would have been by the Peshmerga or Daesh, so that this might have brought their involvement to mind at the time of the screening interview.
(iv) Applying too high a standard of proof when evaluating the appellant's knowledge of Daesh.
(v) Applying too high a standard of proof when assessing the appellant's claim that he disposed without thinking of the mobile phone given to him by Daesh. His account was credible and it was an error of law to find otherwise.
(vi) Error in considering the chronology of the claim. The appellant did not enquire about his family during the year he spent with Rasoul (his father's friend) but it was reasonable for him to assume that as he had not helped Daesh they would have killed his family. The judge placed too great a burden on the appellant to establish his claim. Had it been anxiously scrutinised, it would have succeeded.
5. In a written response to the grant of permission the respondent submits thus. It was open to the judge to conclude that when the appellant was asked who he feared in Iraq and responded "only Isis" that materially damaged credibility. The judge took account of the appellant's very recent arrival in the UK and the possibility of his having had adverse experiences in his country of origin (paragraph 90), and correctly directed himself on issues impacting on the screening interview. The appellant's subsequent reliance on an additional and wholly different risk element was a matter the judge was entitled to take as damaging to credibility. The divergence between the account at interview which lacked detail on Daesh and the subsequent statement which continued contained significant detail was a further matter open to the judge. The issue concerning return to the KRG was peripheral. The judge took the agreed view that if not credible there was available to the appellant a route from Baghdad to the KRG.
6. It was identified in course of Mr Caskie's submissions on ground (i) that although not with the original respondent's bundle there was produced to the judge at the hearing (as he records at paragraph 8) a full copy of the screening interview. This includes the continuation of the questions and answers at 4.1, ending with "Q. Who do you fear in Iraq? A. Only Isis" (the passage cited by the judge).
7. Mr Caskie further to ground (i) emphasised the context in which judgement was to be exercised, including the appellant's account of horrendous experiences, having spent a year in hiding, having arrived in Europe only 3 or 4 days before, and having been admonished to give only brief information. He submitted that the judge failed to have regard to the relevant background in reaching his credibility assessment on this point, and that his mind had been coloured throughout the rest of the determination by taking this issue as decisively negative.
8. Mr Caskie (correctly) accepted that ground (ii) could not by itself disclose any material error. It depended on the credibility assessment being found to be wrong in law.
9. Caskie submitted that ground (iii) disclosed that the judge went wrong on a factual matter. The appellant would not necessarily have been fingerprinted by the Peshmerga or Asayish. The judge left out of account that he would been fingerprinted by the UK authorities, i.e. fingerprinted twice. The matter had not been further explored with the appellant. It should have been considered as neutral and should not have been taken as a further negative point.
10. Mr Caskie (who was not the author of the grounds) categorised (iv) - (vi) as showing inadequacy of reasoning, rather than irrationality or any other target in terms of legal category.
11. On ground (iv), Mr Caskie submitted that it was inconceivable that the appellant as an Iraqi would not have known the nature of Daesh. His apparent ignorance was not a factor which could undermine his credibility. Parting with the mobile phone (v) was another factor which ought to have been treated as neutral rather than adverse. It was at least equally likely that the appellant would naturally wished to be rid of materials connecting him to Danish. There had been only a very brief telephone call at the end of which the appellant's contact in Iraq told him not to call back, but that he would call if there were any news (vi). In that context, and given the appellant's state of knowledge until he left Iraq, there was nothing adverse to be drawn from the fact that he had not enquired further about his family.
12. On the grounds as a whole, Mr Caskie observed that the decision was not framed in terms of one crucial point, but based on several. Sufficient of these had been undermined to require the decision to be set aside.
13. If error of law were to be found, Mr Caskie proposed to develop a submission that the respondent's latest country information and guidance, Iraq: Humanitarian Situation, August 2016, warranted departure from the Upper tribunal's most recent country guidance. The appellant's home area was in a disputed area, not in the Kurdish autonomous region. The evidence showed that the situation had deteriorated to the point where return should now be considered unduly harsh. The appellant, if that stage were reached, would be content with an outcome on that basis. It was accepted that the respondent would be entitled to an opportunity to consider and respond, by way of an adjournment. I therefore did not ask for the point to be further developed. I indicated that if I did find material error of law, there would be a further hearing.
14. Mr Matthews submitted thus. At screening interview an appellant is now asked for a brief explanation of all reasons. At 4.1 the appellant gave a quite full reply, taking his history up to leaving the hands of the Peshmerga, followed by his statement of a decision "to flee". That was not at all consistent with his later account. The judge had shown that he was aware of the need to approach a screening interview with caution and in context, in particular at paragraph 90. The judge was entitled to conclude that the appellant added to his evidence to improve his chances. The logic of the judge's point about fingerprinting might not be entirely clear, but the issue raised by ground (iii) was only a bolster to the much more fundamental point covered by ground (i) which the appellant failed to displace. Grounds (iv) - (vi) were all simply disagreements. The determination should stand.
15. Mr Caskie in reply said that there was plainly a dissonance between the admonition at screening interview to make only a brief statement and the requirement to state all reasons. Mr Matthews had analysed the appellant's screening interview evidence to derive a point from the phrase "decided to flee" which had not been taken by the judge, and so should not now be relied upon in aid of his findings. They had to stand on their own merits. From Q/A28 onwards at substantive interview the appellant seemed to display very little knowledge about Daesh, but that could be understood on the basis that to his mind he was being asked about the particular individuals who kidnapped him, not about the organisation itself. The respondent had submitted that the appellant had no need to approach the Peshmerga, but that was the opposite of the respondent's standard submission that appellants should seek protection available to them.
16. I reserved my decision.
17. On ground (iii), the question which the form required to be put to the appellant was, "Have you ever been fingerprinted in any country including your own? (if yes please obtain detail of where when and why fingerprinted)". His reply was, "Yes, I don't know where, I was forced. I have been fingerprinted twice". The matter was not further explored, then or since. There was no "Eurodac" match, which suggests no fingerprinting in Europe. I think it is possible to see why the judge thought the second fingerprinting might logically (if the further account were true) have been by the Peshmerga or the Asayish, and so the mention of the matter should have brought his further experiences to mind. However, the matter is obscure. It is, as the respondent submitted, a very small adjunct to the general finding that the appellant's alleged experiences were invented.
18. Despite valiant attempts to refute the point, the series of questions and answers leading up to the critical exchange, "Q. Who do you fear in Iraq? A. Only Isis", creates a context where the judge was entitled to draw the obvious conclusions which he did.
19. That was the strongest of the judge's reasons, but it was far from the only one. I am satisfied that all the grounds other than (iii), which is very minor, disclose only insistence and re-argument on the facts, and no legal error. The various points were all open to the judge, and the reasons given are all sensible.
20. On that view, there is no scope to revisit the country guidance and the internal relocation alternative. If the appellant, upon advice, considers that worth taking further, his course is by way of a fresh claim.
21. The determination of the First-tier Tribunal shall stand.
22. No anonymity direction has been requested or made.

20 October 2016
Upper Tribunal Judge Macleman