Tribunal decisions

The decision

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04169/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 9 March 2017
On 23 March 2017

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

karowan omar hassan
(ANONYMITY DIRECTION not made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr Howard, Fountain Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant, Karowan Omar Hassan, claims to have been born in Syria on 21 March 1984. His wife and two children are dependants on his appeal. He appealed to the First-tier Tribunal (Judge Birrell) against the decision of the respondent dated 9 December 2015 to refuse his protection claim. The First-tier Tribunal in a decision promulgated on 6 September 2016 dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The appellant claimed to fear ill-treatment of persecution upon return to Syria of which country he claimed to be a citizen. The appellant claimed that he had lived in Iraq (Diyalla) but he could not return either to Syria or to Iraq including the Kurdistan region of Iraq (KRI). The appellant claimed that he had been in Syria but left that country to travel to Iraq when he was 3 years old. He claimed to possess only Syrian nationality and that he had never possessed Iraqi nationality.
3. Judge Birrell found that the appellant had given an untruthful account of past events and of his nationality. Those findings are not challenged. At [71], Judge Birrell found that “taking all the evidence into account I therefore conclude that the appellant is a native of Kurdistan but he is more likely than not from Sulaymania [otherwise Sulayminyah]”.
4. The appellant now accepts that he had lied to the respondent and to the First-tier Tribunal and that he is, in fact, as Judge Birrell had found, a citizen not of Syria but of Iraq. He complains, however, that Judge Birrell has not considered whether or not he would be at real risk on return to Iraq.
5. I find that the appeal should be dismissed. I have reached that decision for the following reasons. First, the appeals takes place against a background of the appellant’s admitted deceit. He has put forward a claim for asylum which he has subsequently admitted was entirely false. Both the Secretary of State and Judge Birrell have considered his claim on the very basis upon which it was put, namely that he has a real risk if returned to Syria. The appellant and his family shall not be returned to Syria because the judge has found that he is not a Syrian citizen. Mr Howard, for the appellant, acknowledged that, had Judge Birrell simply found that the appellant had failed to prove his case, it would thereafter have been for the respondent to consider the question of the appellant’s true nationality and to take steps to return him to the country of which she may determine he is a citizen. My first observation is that that is indeed the position in which the appellant finds himself. I am aware that the Secretary of State will not attempt to return the appellant and his family directly to Erbil (the de facto capital of the IKR) by air unless and until it obtains approval from the Kurdish authorities. That is a procedure which the Secretary of State will follow as a matter of course after the dismissal of the appeal by Judge Birrell. There was no reason in law for Judge Birrell to go beyond finding that the appellant had failed to discharge the burden of proving that he is at risk in Syria; the fact she has gone beyond that finding may or may not prove to be of assistance to the Secretary of State but I cannot see that her observations as regards the appellant’s true nationality should in any way undermine the legal validity of her conclusion that the appellant’s appeal against his return to Syria should be dismissed.
6. Even if I am wrong, I accept Mr Bates’ submission that Judge Birrell has, albeit through the operation of paragraph 276ADE of Appendix FM of HC 395, determined that it would be safe for the appellant and his family to return to the IKR. In her analysis of the appeal insofar as it concerns Appendix FM, the judge found that there were no insurmountable obstacles to prevent the appellant’s return to the area of Iraq which Judge Birrell describes as “Kurdistan”. Indeed, her analysis of Appendix FM has not been challenged in the grounds of appeal. Mr Bates submitted that, having found that there were no insurmountable obstacles to prevent the family returning to the IKR, it was inconceivable that the family should face the prospect of persecution or ill-treatment upon return to the same region. I agree. In any event, I was referred to the Home Office’s Country Information and Guidance – Iraq dated 18 August 2016. At paragraph 1.2 I note that Sulaymania is a governorate of the IKR whilst Diyala, the area of Iraq in which the appellant claims to have lived, is a “contested” governorate. Even within Iraq, the problems which the appellant claims he faces (and it must be recalled that, in the light of Judge Birrell’s decision, no part of the appellant’s evidence would appear to be reliable) would not prevent his return to the Sulaymania Governorate.
7. In the circumstances, this appeal is dismissed.

Notice of Decision

This appeal is dismissed.

No anonymity direction is made.

Signed Date 21 March 2017

Upper Tribunal Judge Clive Lane

TO THE RESPONDENT
FEE AWARD

I have dismissed the appeal and therefore there can be no fee award.

Signed Date 21 March 2017

Upper Tribunal Judge Clive Lane