Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04536/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 17 March 2017
On 22 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

AKO
(ANONYMITY DIRECTION MADE)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms R Francis (Counsel instructed by J D Spicer Zeb Solicitors)
For the Respondent: Mr E Tufan (Senior Home Office Presenting Officer)

Anonymity - Rule 14: the Tribunal Procedure (Upper Tribunal) Rules 2008

I find that it is appropriate to make an anonymity direction because this case involves a protection claim. 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 his family. This direction applies both to the Appellant and to the Respondent.

DECISION AND REASONS

1. The Appellant appeals to the Upper Tribunal from the decision of the First-tier Tribunal (Judge Monaghan sitting at Hatton Cross on 20 December 2016) dismissing his appeal against the decision of the Secretary of State to refuse to recognise him as a refugee on account of his imputed political opinion as a perceived collaborator with American forces in Fallujah. The First-tier Tribunal Judge accepted his account of past persecution in Baghdad, but did not accept that he would face a future risk as she found he could internally relocate to Basra.
The reasons for the grant of permission to appeal
2. On 6 February 2017, First-tier Tribunal Judge Page granted the Appellant permission to appeal for the following reasons:
At paragraph 95 the Judge has found that the Appellant had a well-founded fear of persecution on account of his imputed political opinion, namely that he has supplied goods to the US army through his job as an employee of a company due to which he and members of his family had been targeted by the Al Mahdi Army. The Appellant claims that there is no sufficiency of protection available to him upon return to Iraq and that internal relocation is not open to him. The Appellant’s Grounds of Appeal are that the Judge has failed to consider sufficiency of protection and failed to give adequate reasons for his finding that the Appellant could be returned to Iraq to internally relocate away from the risk that the Judge found that the Appellant faced. The Judge found that the Appellant would not be at risk if he relocated to the Southern Governates, particularly to Basra. The Appellant argues that in making this assertion the Judge failed to establish that internal relocation was both safe and reasonable. This application merits full consideration by the Upper Tribunal.
Relevant background facts
3. The Appellant originates from Al Salhia in Baghdad. During 2004 he started to work with a company based in Baghdad that supplied goods (such as mattresses, heaters, air conditioners, car parts, cement and metal) to a US army base in Fallujah, which is some 40 miles to the west of Baghdad. He obtained this job through his maternal cousin, who was killed at the end of 2005. He received approximately 10 threatening letters from the Mahdi Army. He reported some of these threats to the police.
4. In April 2007, he was taken from his place of work by four people dressed as the police, who he believed were members of the Mahdi Army. He was beaten up and asked to provide details of the people in his company, and of other companies who worked with the US army. He was kept in a house for 2½ days, after which he was released.
5. He left his employment in April 2007. At the end of 2007 he left Iraq, and went to Turkey. From Turkey he went to Nigeria where he remained from 2008 until 2015. His father was in Nigeria, and he was invited there to work for the same company that his father was working for.
6. His family in Baghdad continued to receive threatening letters in 2008 and 2009. He returned to Iraq for a visit in August 2012. He remained there for approximately one month. During this visit, on 1 September 2012, some men in military uniform knocked on the door at night and attempted to abduct him. They also threw bullets on the floor of the house. The appellant managed to run away, and he reported the incident to the police.
7. There was no threatening letters in 2010 or 2011, but the threatening letters resumed after this incident. A few days later he was travelling in a vehicle with his brother W and their mother when the occupants of a BMW opened fire on the Appellant while his vehicle was stuck in traffic. He was shot in the leg, and his brother was shot in the stomach and shoulder. The appellant was hospitalised for five days, and W was hospitalised for two months.
8. The Appellant returned to Nigeria in October 2012 with his brother H. In 2013 his brother M was attacked by sympathisers of the Mahdi Army, and as a consequence M joined the Appellant in Nigeria.
9. In February 2015 some men in military uniform arrested his brother A and the following day his dead body was found. The Appellant was in no doubt that the Mahdi Army were responsible. The police investigated A’s death, but the perpetrators were not found.
10. In May 2015, he arranged for his mother to come to Nigeria, but his brothers W and K refused to leave Iraq. His mother returned to Iraq after spending three months in Nigeria.
11. On 21 September 2015, the family home in Baghdad was raided. His brother K was at home alone. He was taken, and the following day his dead body was found. The Appellant believed the Mahdi Army was responsible. This incident was not reported to the police. His brother W left Iraq following the incident.
12. In November 2015, laptops were stolen from the family home, and a booby-trapped car exploded outside it.
13. On 9 November 2015, the Appellant came to the UK from Nigeria on a visit. The day after his arrival he learned that his employment in Nigeria had been terminated. This triggered his claim for asylum as he could not return to Nigeria without having a job to go to in Nigeria.
14. On 22 April 2016, the Secretary of State gave her reasons for refusing to recognise the Appellant as a refugee, or as otherwise requiring international or human rights protection. The Respondent did not accept that the Appellant had supplied goods to the US army, or that he and his family had experienced problems from the Mahdi Army. The reasoning of the Respondent was that there were internal discrepancies in his account; and it was not adequately supported, and in some respects it was contradicted, by the documentary evidence which he had provided.
15. On the issue of risk on return, the Respondent cited AA [2015] UKUT 544 (IAC):
2. The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk.
3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).
16. He had not demonstrated that he no longer had a viable support network in Baghdad, due to the rejection of his claim that his brothers were deceased. Accordingly, he would be able to return to his home area of Baghdad and he would be able to live there as he had done in the past. Alternatively, he could choose to live elsewhere in southern Iraq.
The Hearing before, and the Decision of, the First-tier Tribunal
17. Both parties were legally represented before Judge Monaghan.
18. In her subsequent decision, Judge Monaghan accepted the Appellant’s account of the problems that he and his family had faced in Baghdad, saving one respect. At paragraph [100] the Judge said:
The Appellant tried to say that he would still be at risk if he is returned to Basra as his brothers were killed in that area on account of their connection to him. However their death certificates show that they were killed in Baghdad and this accords with the Appellant’s account that they were both taken from the family home. I do not accept the Appellant’s evidence that there is no family home and that the family just moved from place to place due to threats. The death certificates and other documents clearly show one address in Baghdad which I find is the family home.
19. The Judge found that the Appellant could internally relocate within Iraq to avoid persecution, and it would neither be unreasonable nor unduly harsh in his particular circumstances to expect him to do so. Her reasoning was that the company that he had worked for was still in existence. It had reverted to working for the construction industry and it had relocated to Basra in the south of Iraq. The Appellant was clearly very highly thought of by the owner of the company. The Appellant had said that the company would be glad to have him back. The owner of the company now lived in Turkey with his family, but he made regular visits to the premises of the company in Basra. The Judge referred to the background evidence which she said clearly confirmed that the overall security situation in Basra was much improved. The Appellant was well-educated and he had significant work experience. So he could obtain work in southern Iraq and he would be able to support himself. He would probably be offered work by his previous employer.
20. The Judge continued in paragraph [104]:
His employer who also received threats on account of his connection to the US Army considered it safe to relocate his company to Basra and although he does not live there also considers it safe to visit regularly to oversee the company operation.
21. At paragraph [106], the Judge noted from the country information report at Annex B, that since the withdrawal of coalition forces in 2011, Shia militia groups had remained largely quiet in Baghdad and were now largely mobilised to deal with the threat of Da’esh supporting the ISF in so doing. At paragraph [107], she noted that the country information report also confirmed that, in general, a Sunni would not face a real risk of persecution or serious harm in the southern governates from Shia militia:
By implication therefore a Shia who has previously co-operated with the now withdraw coalition forces in the past would not in my view face such a risk either in the Southern Governates.
The Hearing in the Upper Tribunal
22. At the hearing before me to determine whether an error of law was made out, Ms Francis, who did not appear below, developed the arguments advanced by her in the Grounds of Appeal. Her central criticism was that, having found that the Appellant was targeted by the Mahdi Army, a Shia militia group, the Judge had not given adequate reasons as to why it would be safe for the Appellant to relocate to the Shia dominated city of Basra.
23. Ms Francis highlighted the fact that the objective bundle before the First-tier Tribunal did not contain any reference to the Mahdi Army, and so there was no evidence before the Judge as to the reach of the Mahdi Army. She submitted this was an evidential lacuna that would need to be addressed by expert evidence in the event that an error of law was made out.
24. In the course of oral argument, I raised with Ms Francis the question of whether the Judge had given adequate reasons for finding that he and members of his family had been targeted by the Mahdi Army as distinct from being targeted by persons unknown.
25. Mr Tufan submitted that this was a Robinson obvious flaw in the Judge’s decision, and arguably she had not given adequate reasons for finding that the Appellant had a well-founded fear of persecution in his former home area in Baghdad.
26. However, he submitted that her error in this regard was not material, as she had given adequate reasons for finding that the Appellant could safely and reasonably relocate internally to Basra. He referred me to the country information and guidance on Iraq on the topic of “Return/Internal Relocation”, version 3.0 published August 2016, and to the country information and guidance on Iraq on the topic of “Security Situation in Baghdad, the South and the Kurdistan Region of Iraq”, version 2.0, also published in August 2016.
27. He submitted that this guidance supported the finding by the Judge that a Shia who previously co-operated with the now withdrawn coalition forces in the past would not now face a risk from Shia militia, as they were now heavily involved in fighting alongside the Iraqi security forces against Da’esh; and, as they were being supported by the Americans in this struggle, the Americans would now be perceived as allies - and so the Appellant’s historic collaboration with the Americans would no longer be seen as provocative.
28. Mr Tufan also referred me to BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) which was promulgated on 23 January 2017, some two weeks after the Judge promulgated her decision. The guidance given in BA includes the following:

(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.

…

(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.”

29. In reply, Ms Francis submitted it was unclear what additional background evidence, if any, was before the First-tier Tribunal Judge beyond that contained in the objective bundle. In any event, the fact remained the Judge had not given adequate reasons for finding that it was safe and reasonable for the Appellant to relocate to Basra, given her acceptance that the Appellant and his family had been subjected to a pattern of attacks over a period of nine years, during which the Appellant had been detained and assaulted, multiples attempts had been made to kill him, including a drive-by shooting, and two of his brothers had been killed (as recently as 2015) and his family had received various threatening letters. Moreover, it was unreasonable to require the Appellant to relocate to an area where the very company that had caused the Appellant and his family to be targeted was now located.
Discussion
30. It is apparent from the Judge’s citation at paragraph [106] of her decision that she was provided with a copy of the country information and guidance on Iraq on the topic of the Security Situation in Baghdad, the South and the Kurdistan Region of Iraq (KRI), version 2.0, published in August 2016.
31. Section 4 deals with Actors of Violence. In December 2013 Da’esh (Islamic State) took control of Fallujah, before capturing Mosul in June 2015, advancing towards Baghdad and declaring the creation of an Islamic caliphate. The section goes on to identify other Sunni anti-government groups who are active in Iraq.
32. At paragraph 4.15, it says there are also Shia militias operating in Iraq. In October 2015 the Council of Ministers approved a decree regularising the popular mobilisation units to fight against Da’esh. The main armed Shia groups operating in Iraq are four in number, and one of the four is the Mahdi Army.
33. Were it not for the Judge’s finding at paragraph [95], I would be inclined to find that the Judge has given adequate reasons for finding that it would be both safe and reasonable for the Appellant to relocate to Basra.
34. However since the Judge found at paragraph [95] that the Appellant has a well-founded fear of persecution on return to Baghdad at the hands of the Mahdi Army on account of his imputed political opinion, it is reasonable to question why such a well-founded fear of persecution would not extend to Basra, particularly where there is no evidence one way or the other as to whether the Mahdi Army has a presence in Basra.
35. Accordingly, I find that an error of law is made out such that the decision must be set aside and re-made.
36. In this event, Ms Francis invited me to remit the appeal to the First-tier Tribunal, with the Judge’s positive credibility findings on past persecution being preserved. Alternatively, she submitted that the only finding which should not be preserved is the Judge’s finding as to the identity of the agents of persecution. Conversely, Mr Tufan submitted that, if an error of law was made out, there should be a complete rehearing in the First-tier Tribunal on all issues, with no findings of fact being preserved.
37. Ms Francis’ justification for remitting the matter to the First-tier Tribunal for a partial re-hearing is the extent of judicial fact-finding that will be required on the issue of future risk and the viability of internal relocation. This proposition appears to be based in part on her recognition that there is a significant evidential lacuna in the material that was put before the First-tier Tribunal such that there is a need, in her view, for the appellant to instruct a country expert to perform a similar function to that performed by Dr Alan George in BA, where he was asked to comment on the specific risk faced by BA in the light of his particular profile as a former employee of a non-military Western company.
38. As recorded in paragraph [41] of BA, Dr George said that the risk was significantly lower than previously. Tens of thousands of people could have worked for such companies but there was limited evidence to show that such people continued to be targeted. He considered that any risk emanated from Sunni extremist groups and not from Shia militias.
39. Dr George’s expert evidence was not determinative of the outcome of BA’s appeal, which the Tribunal allowed, having considered all his individual circumstances. The significance of BA for present purposes is that it highlights the importance of there being sustainable findings of fact as to the likely identity of the agents of persecution, and their motivation.
40. The Judge has not given adequate reasons for finding that each and every incident relied upon was carried out by the Mahdi Army, or that, particularly in relation to incidents post-dating the Appellant leaving the employment of the Company at the instigation of his persecutors, the motivation thereafter for the continued persecution of the Appellant and his family was revenge for the Appellant’s perceived collaboration with American forces between 2004 and 2007.
41. The Judge has not engaged, for example, with a central theme of the Respondent’s adverse credibility challenge, which is that if the agents of persecution wanted to kill the Appellant, they had ample opportunity to do so - and similar considerations apply to the Appellant’s brothers. So it is reasonable to question the motives behind the deaths of two of his brothers in 2015, some eight years after the Appellant had ceased his perceived collaboration with the US Army.
42. In addition, the adverse credibility finding at paragraph [100] sits uneasily with the earlier positive credibility findings. The effect of the finding at paragraph [100] is to undermine the central premise of the claim, which is one of systematic persecution such that the family were unable to remain in the family home but had to be constantly on the move. If the family were able to remain in the family home throughout, this is more consistent with them experiencing random and unconnected acts of violence and intimidation from time to time.
43. The Judge has also not picked up on discrepancies between the Appellant’s oral evidence and the reports apparently made contemporaneously to the police. For example, the kidnapping and murder of his brother A supposedly took place in 2015, but at page 186 of the bundle there is a report of the crime combat office of Al Aamel district dated 7 February 2007, in which the Appellant’s mother complained about the same incident. She says it was the same gang who followed the Appellant “two years ago”, and did not find him, so they killed his brother thinking that the Appellant worked for the Americans as a translator.
44. On the Appellant’s evidence, “the gang” had found him on at least two occasions, but had not killed him. Indeed, in 2007 he had been abducted but then released unharmed. But in her complaint about A, the Appellant’s mother makes no mention of his kidnapping and subsequent release.
45. At C51 of the Home Office bundle, there is a letter dated 1 September 2012 which the Appellant says he sent to an investigating magistrate in respect of an incident which took place at 10pm on the same day. He says he had heard a knock on the door. He stepped outside, and a squad of anonymous men standing on the threshold wearing military uniform started beating him violently. There were over seven in number, and they were armed with pistols. They instructed him to leave his job and his house and not to embark on any job in the service of the State or any other authority, saying that he would be killed on the spot should he ignore them. He added that it was noteworthy that he worked as an interpreter for different companies, and he had received several threatening phone calls and he had spotted some warning letters and unused bullets in the house and patio.
46. On the Appellant’s own case, some of what he said in this letter was not true. He was not working in 2012 in Iraq as an interpreter for different companies. What he says in the letter is also at variance with the account which he gave in his asylum interview at Q&A 60.
47. In summary, I consider that the Judge’s findings on past persecution are just as unsafe as the findings which the Judge has made on future risk. The fact that the Respondent did not cross appeal the positive credibility findings by the Judge is not determinative of what is a fair and just outcome in all the circumstances.
Notice of Decision
48. The decision of the First-tier Tribunal contained an error of law, such that it must be set aside in its entirety and remade.
Directions
49. This appeal is remitted to the First-tier Tribunal at Hatton Cross for a de novo hearing (Judge Monaghan incompatible).
50. None of the findings of fact made by the previous Tribunal shall be preserved.

Signed Date: 22 March 2017
Deputy Upper Tribunal Judge Monson