Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04566/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 13th March 2017
On 11th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

Mr Humam Abdulghani
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Howard (Solicitor)
For the Respondent: Mr I Jarvis (HOPO)

DECISION AND REASONS
1. This is an appeal against a determination of First-tier Tribunal Judge Veloso, promulgated on 9th January 2017, following a hearing at Hatton Cross on 23rd December 2016. In the determination, the judge dismissed the appeal of the Appellant on asylum grounds, but allowed it on humanitarian grounds and under the Human Rights Act 1998. The Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, on grounds that his refugee/asylum appeal should also have been allowed, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Iraq, who was born on 1st February 1989. The relevant facts and documentary material are set out in the determination under appeal.
3. The facts are set out in the determination of the First-tier Tribunal Judge, as is the legal framework.
4. I would allow the appeal.
5. In the submissions before me, Mr Howard stated that the judge had allowed the appeal on the basis of humanitarian protection under Article 15(c) of the Qualification Directive, but had rejected it under the Refugee Convention. However, if one has regard to paragraph 40 of the determination, the judge observes that the Appellant had not received any threats from Al-Qaeda or anyone else due to his involvement with the Turkmen Front since mid-2012. The judge states that,
“On his own evidence, he had received only three verbal threats; no letters. I find that as at the date of the hearing the Appellant has not shown a well-founded fear of persecution as a result of any political membership or activity, merely a general fear in the contested area of Musul...” (paragraph 40).
6. However, given that the judge had assessed that the Turkmen are targeted this conclusion was untenable. The judge had recorded that the Appellant’s evidence of his membership of the Iraqi Turkmen Front was credible. He had gone on to say:
“The Appellant’s claim is supported by a letter from Miss Saqi, President of the Turkmen Front in Europe (at page 115), who attended and gave oral evidence. She knew the names of all members in each branch across the world. She had obtained confirmation of the Appellant’s membership from the President of the Iraqi Turkmen Front in Iraq. I note Miss Dogra did not make any adverse credibility findings in connection with any of her evidence.” (Paragraph 38).
7. The judge had gone on to record, in relation to Miss Saqi that, “
I note the witness referred to the Appellant by way of his full name, date of birth and had confirmed his occupation with the president in Iraq, all three pieces of information, which the Respondent accepted in the reasons for refusal letter” (paragraph 38).
8. For his part, Mr Jarvis submitted that the test was whether it was reasonable to expect the Appellant to return. It was not whether he had a likelihood of being persecuted. At paragraph 42 of the determination, the judge had recognised that there was “discrimination” of the Turkmen people, but this was in connection to the availability of IFA to the Appellant, and the judge held that upon return to Baghdad, he could reasonably relocate in that country. He was right to conclude that the ISIS had considerable opportunity to pursue the Appellant if they so wished but chose not to do so (paragraph 37).
9. In reply, Mr Howard submitted that the judge had recognised at paragraph 36 that when ISIS came he went into hiding, but the fact was that the judge had not addressed the risk to the Appellant in his home area. He did say that it would be unduly harsh for him to go to Baghdad. He asked me to allow the appeal.
Error of Law
10. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision and remake the decision. My reasons are as follows.
11. First, it was accepted by the judge that the Appellant came from Musal, which is a contested area of Iraq, and the judge accepted he was in need of humanitarian protection (see paragraphs 43 to 44).
12. Second, the judge accepted that the Appellant was a Turkmen by ethnicity (see paragraph 35).
13. Third, the judge accepted that the Appellant was a member of the Iraq Turkmen Front (see paragraph 38).
14. Fourth, it was accepted that the Appellant went into hiding as a result of ISIS taking control of Musal (paragraph 36).
15. Finally, the judge having granted the Appellant humanitarian protection, it did not make sense, on the evidence before him, to dismiss the Appellant’s appeal under the Refugee Convention because the judge had accepted also that “the available objective evidence reports discrimination and harassment of Turkmen people”.
16. The Appellant was “of Turkmen ethnicity and stated that it was obvious from his title and his ID that he was Turkmen. He is from a minority community.” (Paragraph 42). These matters were directly germane to the grant of protection under the Refugee Convention, particularly given the accepted background evidence that he had fled Musal after the ISIS takeover, was a member of the Turkmen Front, and had given credible evidence (paragraph 38).
17. The suggestion that he had only received “three verbal threats” and no letters may not be altogether surprising in a society which does not lay great store on the writing of letters or the written word when it comes to the making of threats. A verbal threat is still a threat. (Paragraph 40).
18. Given that the judge had also accepted (paragraph 41 to 42) that IFA was not available to the Appellant because of his being a Turkmen, it is plain, on the lower standard, that he is a person with a well-founded fear of persecution under the Refugee Convention.
Remaking the Decision
19. I have remade the decision on the basis of the findings of the original judge, the evidence before him, and the submissions that I have heard today. I am allowing this appeal for the reasons that I have set out above.
Notice of Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed.
No anonymity direction is made.

Signed Dated

Deputy Upper Tribunal Judge Juss 7th April 2017