Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04767/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 2nd March 2017
On 15th March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

MAR
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr D Jones, Counsel, instructed by Sutovic & Hartigan
For the Respondent: Ms A Fijiwala, Home Office Presenting Officer

DECISION AND REASONS

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
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. Failure to comply with this direction could lead to contempt of court proceedings.

1. On 25th January 2017 I set aside the decision of the First-tier Tribunal for the reasons set out in the error of law decision which I append hereto.
2. At the resumed hearing the issues were further clarified and narrowed by the parties. Ms Fijiwala accepted that the area the Appellant is from, Hawija Province, is not in Iraqi Kurdistan Region (IKR). She accepted, on the basis of the ‘Country Information and Guidance Iraq: Security situation in the ‘contested’ areas’ of August 2016, that the area of Hawija is an area in the contested areas of Iraq in which there is a real risk to the Appellant under Article 15(c) of the Qualification Directive. She accepted that the Appellant could not be returned to the IKR either. Therefore she submitted that, if identity documents are available, the Appellant would be returned to Baghdad City. She accepted that the issue here, in light of the guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) and BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC), is the assessment of the prospect of the Appellant's internal relocation to Baghdad.
3. In these circumstances Mr Jones did not call any further evidence from the Appellant but made submissions only. He submitted that the Appellant is still a minor and that additional vulnerabilities had been identified in the social worker’s report from Ms Sessa dated 29th September 2016 where it was also confirmed that the Appellant had been referred to the Red Cross for family tracing services. He submitted that the Appellant also has issues in relation to independent living skills, isolation and his mental health. He submitted that there were no inconsistencies between the evidence of the social worker and that of Mr Sachin Dev and he relied on the additional evidence from Mr Dev in the form of a letter of 1st February 2017. He submitted that this shows that the Appellant is dependent on support services and he has a particular vulnerability in that context and that goes to whether he would have capacity to cope in Baghdad. Mr Jones submitted that, although the Appellant will be 18 in a few months time, his particular vulnerability will persist. There are no reception arrangements given that the Appellant is a minor. It has been accepted by the Secretary of State that the Appellant is from a contested area and the question here remains that of internal relocation. As the Appellant is not from the IKR he cannot be removed there and he will therefore be returned to Baghdad. He submitted that the Appellant has no family there, he is Kurdish and Sunni, he has never resided in Baghdad and has no social network there. Mr Jones referred to paragraph 66 of AA, which states that there is no discernible Kurdish community in Baghdad except for Fadeel Kurds, so therefore there is no ethnic group to whom the Appellant could turn for support.
4. Mr Jones referred to paragraphs 97 and 100-101 in BA, noting that young Sunni men are particularly vulnerable. He referred to paragraph 105 in BA and noted that the Home Office had conceded that there is no sufficiency of protection in relation to Sunnis. He referred to paragraphs 68 and 83 of BA, which highlight the risk of kidnapping, submitting that the Appellant has been in the UK for over a year and that may be a significant factor in elevating the risk of kidnapping.
5. Mr Jones referred to paragraphs 168 to 169 and 206 to 207 of AA. He also referred to the judicial review decision of H v Secretary of State for the Home Department, handed down on 9th February 2017, where Upper Tribunal Judge Peter Lane said at paragraph 41 that a person whose return to Iraq is not currently feasible may nevertheless still succeed in a claim to international protection where the claim is based on a real risk of harm which arises otherwise by not having the requisite documentation.
6. Mr Jones relied on the Home Office ‘Country Information and Guidance Iraq: Return/Internal relocation’ of August 2016 where, at 8.1.5, there is reference to a statement from the Head of the General Security Directorate, who said that no returnees from Baghdad had yet been seen in the IKR but that if a person from Baghdad returning to Iraq from abroad tried to enter KRI he would be returned to Baghdad by the Kurdish authorities. Mr Jones submitted that if it were established that the Appellant was entitled to asylum the requirements of paragraph 276ADE(1)(vi) would also be met in that there would be very significant obstacles to him returning to Iraq.
My Findings
7. The starting point is that there is no dispute about the facts in this case. In the Reasons for Refusal Letter the Respondent accepted that the Appellant is from Hawija, as set out in his witness statement, he lived there with his parents and two sisters, his father was a fighter from the Peshmerga although he did not hold a senior or notable role (paragraph 27 of the Reasons for Refusal Letter) and that Daesh/ISIS attacked the Appellant’s village three or four months before the Appellant arrived in the UK. It was also accepted that the Appellant is an Iraqi national, a Kurd and a Sunni Muslim, that his father worked for the Peshmerga and that Daesh attacked his village (paragraphs 36 to 40 of the Reasons for Refusal Letter).
8. The assessment of risk on return in the Reasons for Refusal Letter is based on the erroneous assumption that the Appellant is from the IKR and would be returned there. However I accept, on the basis of the further evidence submitted before me and Ms Fijiwala’s concession, that the Appellant in fact is from a contested area and not the IKR. On the basis of the Country Information and Guidance on the security situation in the contested areas, again, as specifically accepted by Ms Fijiwala, I accept that the removal of the Appellant to that area would breach Article 15(c). Ms Fijiwala also accepted that the Appellant could not be returned to the IKR in the circumstances.
9. The issue therefore for me is whether it is reasonable for the Appellant to internally relocate to Baghdad. In assessing that issue I consider the guidance given by the Upper Tribunal in the cases of AA and BA. It was accepted by the Respondent at paragraph 66 of the Reasons for Refusal Letter that the Appellant does not currently have the appropriate documentation and that there is no evidence that he has the documentation needed to obtain a passport or laissez-passer and that his return to Iraq is currently not feasible. This is in accordance with the guidance given in AA.
10. In terms of the issue of internal relocation I note the guidance in AA as summarised at paragraphs 14, 15 and 16 of the head note as follows:

“D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)
14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.

15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.

16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).”
11. In considering the matters set out at paragraph 15 I note that, as accepted by the Secretary of State, the Appellant does not have a CSID and there is no evidence that he has access to one. In the screening interview the Appellant said that the only language he speaks is Kurdish, therefore it appears that he does not speak Arabic. There is no evidence that the Appellant has any family members or friends in Baghdad who would be able to accommodate him. There is no evidence that he could find a Sponsor to access a hotel room or rent accommodation. The Appellant is a Sunni Muslim and a Kurd. I accept that the Appellant may be at an increased risk in Baghdad because of his Kurdish ethnicity and Sunni religion. There is no evidence that there is any support available to the Appellant in Baghdad.
12. I further consider the evidence from the Appellant’s social worker in her letter dated 29th September 2016 where she notes that the Appellant arrived in the UK with very limited independent living skills and was receiving an intensive package of support by the Leaving Care Team to equip him with the skills needed to live independently. He lives in semi-independent accommodation and receives key work sessions in order to progress his pathway plan including addressing health and safety, education, budgeting, self-care, life in the UK and linking with the Home Office and legal support. The social worker says that the Appellant is very isolated. He finds it difficult making friends due to his language barriers and reserved attitude.
13. The social worker further states that in February 2016 the Appellant was referred to CAHMS services as he found it difficult to sleep and eat regularly. His wellbeing has improved considerably and he was assessed as no longer being in need of therapeutic service by CAHMS in May 2016. However, the social worker says that she had observed the Appellant experiencing emotional difficulties at times, probably due to the feeling of loss of his family and country and the issues he is currently facing. She says that his reserved personality and limitations in his language make it very difficult for professionals to explore and address his worries and that she believes that at the present time his only source of strength is his faith and he attends the mosque every day and he receives a lot of comfort from that.
14. In his letter of 26th September 2016 Mr Dev states that the Appellant has been accommodated by Peepal Tree Organisation Care Accommodation since 9th November 2015 in a semi-independent supported unit managed by Peepal Tree. In his update letter of 1st February 2017 Mr Dev says that the organisation provides the Appellant with day-to-day support and is working to assist him in the development of his independence skills and to attend key appointments including appointments around his health and his asylum matter. According to Mr Dev the Appellant has presented as being quite vulnerable and following concerns around low mood, memory loss and disturbed sleep he attended a series of appointments with CAHMS until June 2016 although he has required continued close monitoring from support staff since this time.
15. Mr Dev says that the Appellant has been found to be quite reliant on the support of professionals, having needed a lot of monitoring and guidance and was seen by professionals as quite vulnerable, requiring quite a lot of reassurance and supervision around his placement. Mr Dev says that given the level of support the Appellant currently requires they are of the opinion that he would find it very difficult to cope if he were required to return to Iraq.
16. I take into account as a significant factor the Appellant’s age, he is not yet 18. I accept that this Appellant has a degree of vulnerability over and above that experienced by someone else of his age. I accept that it is not likely that upon reaching 18 his vulnerability will cease.
17. Having considered all of the issues in this case and all of the evidence before me, in light of the concessions, the uncontested evidence and my findings above I am satisfied that the Appellant has demonstrated that he is at risk on return to his home area. On the basis of the evidence before me, in the context of the guidance given by the Tribunal, I accept that for this particular Appellant it would be unreasonable and unduly harsh for him to relocate to Baghdad.

Notice of Decision
I allow the appeal on asylum, humanitarian protection and human rights grounds.

Signed Date: 15 March 2017

Deputy Upper Tribunal Judge Grimes

TO THE RESPONDENT
FEE AWARD
No fee is paid or payable and therefore there can be no fee award.

Signed Date: 15 March 2017

Deputy Upper Tribunal Judge Grimes

IAC-AH-DP-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04767/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12th January 2017

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

mr M.A.R.
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Foot instructed by Sutovic & Hartigan
For the Respondent: Ms Z Ahmed, Home Office Presenting Officer

DECISION AND DIRECTIONS

Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
The First-tier Tribunal made an order pursuant to rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014. I continue that order.
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. Failure to comply with this direction could lead to contempt of court proceedings.
1. The Appellant a national of Iraq appealed to the First-tier Tribunal against the decision of the Secretary of State dated 29th April 2016 to refuse his application for asylum in the UK. First-tier Tribunal Judge Lawrence dismissed the appeal and the Appellant now appeals with permission to this Tribunal.
2. There are nine Grounds of Appeal pleaded by the Appellant. In the Rule 24 Notice the Secretary of State stated that she did not oppose the Appellant’s application for permission to appeal. In my view this is the correct approach because there are a number of errors of law in the decision of the First-tier Tribunal.
3. The reasons for refusal letter accepted a number of significant aspects of the Appellant’s claim. The Respondent accepted that the Appellant is Kurdish and a Sunni Muslim. The Respondent accepted that the Appellant’s father was a fighter for the Peshmerga, although it was not accepted that he held a senior or notable role, and that Daesh/ISIS attacked the Appellant’s village due to its location east of Kirkuk, although the Respondent did not accept that the Appellant or his family were being targeted specifically in this attack.
4. The key conclusions are at paragraphs 41 to 43 of the reasons for refusal letter where the Secretary of State said that all parts of the Appellant’s claim had been accepted and that it was concluded that the Appellant could relocate to another part of Iraq away from Daesh. In particular it was concluded that, given the Appellant’s Kurdish ethnicity and his Sunni faith, it was considered that he could relocate to Erbil in Kurdistan where he could be afforded protection from Daesh and he would not be at risk of persecution there. The Respondent considered the case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) in the context of internal relocation and stated that the Appellant’s family could relocate to Erbil with him and support him there and that the Appellant’s registration in Kurdistan was not considered to be a barrier to his return.
5. At paragraph 66 of the decision the Secretary of State noted that the Appellant had not provided a passport or an expired passport to the Home Office and that he would not be able to return to Iraq until he could supply sufficient documentation to the Iraqi Embassy in London to enable it to provide him with a passport or laissez-passer. It was noted that this would only occur if he could provide a copy of a CSID or nationality certificate. The Respondent noted that there was no evidence that the Appellant had access to the documentation needed to obtain a passport or laissez-passer and concluded that his return to Iraq was therefore currently not feasible.
6. Given the conclusions in the reasons for refusal letter it is clear that the only issue before the First-tier Tribunal Judge was of the Appellant’s internal relocation in Iraq. It is clear from reading the decision that the judge failed to appreciate that this was the issue that he had to determine.
7. The judge devoted a significant portion of his determination [paragraphs 12 to 20] discussing whether or not the Appellant has demonstrated that he is a vulnerable person. It appears that the judge failed to appreciate that the Appellant is a minor and is therefore vulnerable on that account alone. It is difficult to understand the judge’s thinking in analysing the appellant's vulnerability. It appears that the judge failed to realise that the evidence in relation to vulnerability is relevant to whether it is unduly harsh to expect the Appellant to relocate to Erbil as asserted by the Secretary of State. Accordingly the judge failed to make any proper assessment of the oral evidence of the social worker in this context. Further, at paragraphs 21 to 23 the judge discussed the feasibility of internal relocation to Baghdad City. However it is clear in the reasons for refusal letter that the Respondent proposed returning the Appellant to Erbil. Again the judge failed to appreciate the issue to be determined. These significant errors undermined the entirety of the judge’s findings.
8. At paragraphs 25 and 26 the judge considered the feasibility of the Appellant obtaining an identity document. However again the judge looked at this in the context of internal relocation to Baghdad. This is a fundamental error undermining the sustainability of the judge’s findings.
9. For the reasons above I am satisfied that the judge failed to engage with the issues before him and made fundamental errors which are material to the determination of the issues in the appeal. As a result I am satisfied that the judge’s findings cannot be sustained and I set the decision aside.
10. In relation to remaking the decision I accepted the request made by Ms Foot that the matter be adjourned for a further hearing to hear evidence and submissions in relation to remaking the decision.

Notice of Decision
I am satisfied that the decision of the First-tier Tribunal contained a material error of law and I set it aside. I adjourn consideration of the remaking of the decision.
Directions
1. The resumed hearing in this appeal is to take place on 2nd March 2016.
2. The parties are directed to provide any witness statements and documentary evidence to be relied upon at the hearing no later than seven days before the hearing.
3. The Secretary of State is directed to provide clarification of her position in relation to internal relocation in light of her acceptance that the Appellant’s return to Iraq is currently not feasible (see paragraph 66 of the reasons for refusal letter).

Signed Date: 25 January 2017

Deputy Upper Tribunal Judge Grimes