Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04299/2018

THE IMMIGRATION ACTS

Heard at Birmingham Civil Justice Centre
Decision & Reasons Promulgated
On 17 June 2019
On 20 June 2019

Before

UPPER TRIBUNAL JUDGE LANE

Between

MJ
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Vokes, instructed by Halliday Reeves Law Firm
For the Respondent: Mrs Aboni, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a male citizen of Iraq who was born in 1994. He appealed to the First-tier Tribunal against the decision of the Secretary of State dated 18 March 2018 refusing his application for international protection. The First-tier Tribunal, in a decision promulgated on 11 May 2018, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. During the course of submissions, Mrs Aboni that told me that the Secretary of State considered that the decision of the judge was flawed by legal error. I am grateful to her for that indication and grateful to both representatives for their helpful submissions. In the light of the respondent's indication, my reasons shall be brief.
3. I agree with the submission of Mr Vokes, who appeared for the appellant, that the country guidance case of AA (Iraq) [2017] EWCA Civ 944 should have been the judge's starting point for the analysis of risk on return to Iraq. The Practice Direction at 12.4 provides that a judge is likely to fall into legal error if reasons are not shown for the departing from existing country guidance. Although the judge refers to AA (Iraq) at [79], no attempt has been by the judge to apply or consider the guidance save for what she says regarding internal relocation at [95]. The judge departs fundamentally from the country guidance by placing reliance upon the recent CPIN at [76] but makes no reference to it in that part of her analysis. Moreover, judge notes that the CPIN indicates that conditions in Kirkuk no longer breach the threshold of Article 15 (c) protection but overlooks the fact that the appellant claims that he is from Tuz which is a drive of at least one hour from Kirkuk. Is not clear that the judge has properly assessed risk in the appellant's actual home area before moving on to consider the internal flight alternative.
4. As regards the internal flight alternative, she makes further errors. The appellant does not possess a CSID but it is quite unclear from the judge's analysis how exactly the appellant is expected to go about obtaining a replacement. The first sentence of [77] is obscure although it appears to relate to the availability of direct flights to Erbil. At [78], the judge appears to agree with the presenting officer's submission that the 'appellant could go to one of the offices of the contested area to obtain [a CSID] ? He would not need his mother or uncle to do this.' At [80] however, judge says that 'there is no satisfactory evidence that he cannot contact identify the details to allow his CSI data be issued and I finally has family rather contacts would be able to assist him (sic).' Quite apart from the obvious lapse in proofreading, it is not clear whether the judge believes that the appellant does or does not require the assistance of family members in Iraq to assist him in obtaining a new identity document. There is further confusion regarding the appellant's ability to obtain a replacement card from the Iraqi embassy in London. At [86], the judge says that she does 'not find the appellant is unable to obtain documents' (the resort two double negatives throughout this decision does not assist its clarity) and she finds that the appellant can 'contact his embassy to make enquiries about the passport and ID card.' Any reader of this decision will be left entirely unclear as of the reasons why the judge believes that the appellant will be able to obtain a new card without exposing himself to a real risk in Iraq.
5. In the circumstances, I set aside the decision. None of the findings of factual stand. I am aware that the errors in the decision which have been identified in the judge's decision concern the analysis of risk rather than credibility but the errors are so extensive that I consider it necessary for there to be a determination of the appeal de novo. That task is better undertaken by the First-tier Tribunal to which this appeal is now returned for that Tribunal to remake the decision. As I mentioned to Mr Vokes, the next Tribunal will be assisted by evidence concerning the appellant's efforts to obtain a replacement CSID from the Iraqi Embassy. Both parties may rely upon fresh evidence at the next hearing provided copies of any documentary evidence (including witness statements) are sent to the other party and to the Upper Tribunal at least 10 days before the next hearing.

Notice of Decision

The decision of the First-tier Tribunal promulgated on 11 May 2018 is set aside. None of the findings of fact shall stand. The appeal is returned to the First-tier Tribunal for that Tribunal to remake the decision.

Signed Date 17 June 2019

Upper Tribunal Judge Lane

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.