Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04587/2017

THE IMMIGRATION ACTS

Heard at Birmingham CJC
Decision & Reasons Promulgated
On 31 October 2018
On 09 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DAVEY

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Faheema [S]
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr D Mills, Senior Presenting Officer
For the Respondent: Mr Azmi, counsel, instructed by French & Company

DECISION AND REASONS

1. In this decision the Appellant is referred to as the Secretary of State and the Respondent is referred to as the Claimant.

2. The Claimant a national of Iraq date of birth 6 January 1990 appealed against the Respondent's decision dated 2 May 2017 to refuse her protection claim.

3. Her appeal came before First-tier Tribunal Judge A J Parker who on 14 December 2017 allowed her appeal on asylum grounds and allowed the appeal on human rights grounds, presumably Article 3 ECHR.

4. The Secretary of State's grounds on which permission was granted on 11 January 2018 was a mixture of points essentially reducing themselves to a key issue namely the absence of cogent, adequate and clear reasons for the decisions made. Mr Azmi quite rightly has little he can say to defend the decision other than to say well even if there is an absence of clear and full reasons as might be expected at least there is a decision and at least the decision has some reasoned basis for it.

5. It is trite law that the parties to litigation are entitled to sufficient and adequate reasons and the failure to provide them is clearly an error of law. The next question will be whether the error of law is material to the outcome of the appeal. I find, having read the decision a number of times, that the format the Judge has used for setting out some of the findings was simply not acceptable in terms of its sufficiency. It is not enough to recite an argument or a submission made and simply to state "I agree for the reasons stated therein". That is not an explanation of the reasons even if effectively there may be agreement with some of the submissions being made.

6. Similarly, the Judge was strikingly unclear about the basis of the Refugee Convention reason he found and the basis on which he could conclude there was the real risk of Article 3 ECHR proscribed ill-treatment. The Judge simply did not address the fact that the Claimant was in possession of a valid passport issued by authorities in Iraq and there was no clear evidence as to whether she did or did not have a CSID document.

7. Whether or not she does have a CSID I do not know but the Judge misunderstood that in fact within Baghdad it was possible, even if her home area were one where there was significant risk for her, to get a CSID safely whilst in Baghdad. More importantly perhaps the Judge also seemed to have by reference to the case law ignored the known fact that by the date of the hearing the position of safety and the presence of ISIL in Mosul (Ninieveh) was no longer as originally pertained. Therefore, the whole basis of risk, as he was assessing it, for her seeking to go back to the IKR simply did not have the foundations of fact which he thought or perhaps how it was put to him.

8. In the circumstances I was fully satisfied that the issue of her safety, the return to the IKR, her ability to acquire a CSID, if she does not have one already, and the issues of her political activities which have been rejected as a basis of risk, demonstrate to me that the assessment the Judge made of risk on return to her simply cannot stand.

9. It is also clear that she was raising the issue of her being of Yazidi faith/ethnicity and that that posed a risk. It is sad to say that the Judge never really expresses a view one way or another on that issue and never particularises on what Convention reason the Appellant may be or face the real likelihood of risk on return to Iraq.

10. For these reasons, I am fully satisfied that the Original Tribunal failed to give adequate and sufficient reasons for the decision. In the light of the submissions made it seems to me most unfortunate that this will have to be remade but it seemed to me inevitable that it should be done in the First-tier Tribunal in accordance with the law.

DECISION

11. The Original Tribunal's decision cannot stand.

DIRECTIONS

(1) The matter should be remade in the First-tier Tribunal in Birmingham.

(2) Time estimate two hours.

3) Arabic Iraq interpreter required.

(4) Any additional evidence to be served on the Respondent and IAC not later than ten working days before further hearing.

(5) Not to be listed before Judges A J Parker or E S Martins.

(6) The issues are Asylum, Article 3 ECHR and Humanitarian Protection.

(7) No anonymity direction is made.

Signed Date 12 December 2018

Deputy Upper Tribunal Judge Davey