Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05134/2016

THE IMMIGRATION ACTS

Heard in Liverpool
Decision and Reasons Promulgated
On Tuesday 17 January 2017
On Tuesday 24 January 2017

Before
UPPER TRIBUNAL JUDGE SMITH

Between

S M

Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Sadiq, Legal Representative, Adam solicitors
For the Respondent: Mr Harrison, Senior Home Office Presenting Officer

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
An anonymity order was not made by the First-tier Tribunal. However, as this is a protection claim, it is appropriate to make an anonymity direction in this case.

ERROR OF LAW DECISION AND REASONS

Background

1. The Appellant appeals against a decision of First-Tier Tribunal Judge Herwald promulgated on 17 September 2016 ("the Decision") dismissing the Appellant's appeal against the Secretary of State's decision dated 8 May 2016 refusing his protection claim.

2. The Appellant is a citizen of Iraq. He arrived in the UK via Turkey and Serbia, he claims on 12 November 2015. He claims to have been assisted in his flight to the UK by criminal traffickers, funded he says by his uncle. He claims to have become separated from the rest of his family during the journey. On arrival, he claimed to be an unaccompanied minor. That was not accepted by the Respondent. His protection claim centres around a general fear of ISIS. He also raised a specific risk based on previous targeting of him by ISIS. That too was not accepted.

3. The Appellant is from a village called Abu Najm. He and his family left there when it was attacked by ISIS in 2014 and fled to Kirkuk and from there to Mosul where the Appellant was living before coming to the UK. It was accepted by the Respondent that Article 15(c) of the Qualification Directive applies to prevent return of the Appellant to his home area. She says however that he can internally relocate to Baghdad or, since he is Kurdish, to the Iraqi Kurdish Region ("IKR").

4. The Judge found the Appellant not to be credible both in relation to events which the Appellant said occurred before he came to the UK and in relation to his age. The Appellant does not challenge those adverse credibility findings. The Judge accepted that the Appellant could not be returned to his home area but found that it would not be unduly harsh for him to relocate to Baghdad or the IKR. It is that finding which the Appellant challenges.

5. Permission to appeal was granted by First-tier Tribunal Judge Pedro on 10 October 2016 on the basis that the Judge may have misdirected himself in his application of the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) ("AA (Iraq)"). The matter comes before me to decide whether the Decision contains a material error of law and, if so, to re-make the decision or remit the appeal for rehearing to the First-Tier Tribunal.

Submissions

6. Mr Sadiq relied on the Appellant's grounds. He directed my attention to [19] to [21] of the Decision which contain the Judge's findings as to internal relocation. He submitted that the Judge erred in failing to take into account all factors relevant to undue hardship. He said that the findings made were questionable.

7. In relation to relocation, the Judge finds that there are two options - return to Baghdad or return to the IKR. The findings in relation to return to Baghdad are challenged for three reasons. The first relates to the viability of return. It has not been disputed by the Respondent that the Appellant does not have a passport. Mr Sadiq drew my attention to [11] of the Appellant's witness statement which makes that assertion. On that basis he submitted that it was not feasible for the Appellant to be returned to Iraq at all. This undermined, he said, the Judge's finding that feasibility was not at issue.

8. The second reason why the Appellant says that the Judge erred in relation to internal relocation to Baghdad is the Judge's finding that the Appellant could apply to the National Status Court in order to obtain a CSID (identity document) which the Appellant would need to access services in Baghdad. Mr Sadiq drew my attention to what is said at [187] of AA (Iraq) about the functioning of that Court.

9. The third reason why the Appellant says that the Judge erred is in relying on the Appellant's "street wisdom" by reference to his ability to survive in the UK. The reality of the situation in the UK is that the Appellant is supported by NASS. The Judge was not entitled therefore to rely on the fact of his survival in the UK as a reason for finding that he would be able to support himself in Iraq.

10. Mr Sadiq also submitted that the Judge has failed to deal with the issues identified at [15] of the headnote in AA (Iraq). The Appellant contends that the Judge's findings in relation to those issues are inadequate.

11. In relation to the second of the relocation options - the IKR - Mr Sadiq drew my attention to the Judge's findings at [21] of the Decision. The Appellant is not from the IKR. As a result, therefore, Mr Sadiq submitted that the Appellant would be returned in the first instance to Baghdad. He made the same point also about the Judge's findings in relation to the Appellant's ability to survive in the IKR, bearing in mind that he was not from there, had never been there and knew no-one there. In relation to the Appellant's access to employment, the Appellant was a labourer and it was questionable whether he could be said to have skills to find employment. As to the support which the Judge found he could access in order to fund return to IKR, Mr Sadiq pointed out that the Appellant's case is that his journey to the UK was funded by his uncle who remains in an ISIS dominated area. It was therefore difficult to see how his uncle could send funds to the Appellant.

12. In response, Mr Harrison pointed out that the situation in Mosul is fluid. Since the Decision, the situation had changed considerably. However, in relation to internal relocation, Mr Harrison pointed to the Judge's adverse credibility findings which were not challenged. The Appellant is found to have lied about his age and events before he came to the UK. Those findings play in to the documentation issue.

13. Both representatives agreed that, if I found an error of law, the appeal could remain in this Tribunal for re-making. The adverse credibility findings would be preserved but both representatives accepted that a further oral hearing would be required in order to deal with the internal relocation issue, particularly as to what documentation could be accessed and how.
Discussion

14. The Judge dealt with the internal relocation issue at [19] to [21] of the Decision as follows:-

"[19] I have taken into account the country guidance, and accorded anxious scrutiny to the assertion by the Respondent that the Appellant can relocate to Baghdad. Interestingly, the refusal letter is almost silent on this question, but Mr Khan said that it was feasible for the Appellant to return to the capital although it was claimed by the Appellant that he had never been there. The Appellant's claim was that he had no financial or economic resources and access to employment would be uncertain there, or indeed in the IKR.
[20] There was no argument before me as to the feasibility of return and on that basis no suggestion that such return could not be put in motion. There was nothing before me to suggest that the Appellant could not obtain the relevant documentation reasonably soon after arrival in Iraq, and I note paragraph 11 of the summary of the country guidance case. If there are no family or other members likely to be able to provide means of support, then the Appellant may face a real risk of destitution if by the time any funds provided to him by the Secretary of State to assist return have been exhausted, it is reasonably likely that he would still not have CSID. I note that there are alternative offices where the Appellant could obtain such a document, in Baghdad, as the Appellant cannot be expected to return to his home area. He could thus apply to something called the National Status Court, if necessary, according to paragraph 13 of the AA headnote. At paragraph 14, I am told that "as a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City." I find that the Appellant could obtain the relevant documentation, and that he can speak at least some Arabic. He is a mature young man who had the wherewithal to leave his homeland, travel across Europe, and relocate to a country in which he claims not to speak the language. He also had the wherewithal to attempt to dupe the authorities here, into believing that he was not his real age. This is clearly a young man who has the street wisdom to survive on return to Baghdad, even though he is from a minority community, and I note that returned asylum seekers are provided the support generally given to internally displaced persons.
[21] If it were unduly harsh to return to Baghdad, then there is no evidence before me that the Appellant cannot travel by plane to the IKR. I note that he was able to access a vast deal of money, before his departure from his homeland, to pay criminal traffickers, and there is no reason to believe that his supporters would not assist him again. I have already commented on his ability to relocate to Europe from Asia, and I am therefore satisfied that he could secure employment in the IKR, where he speaks the language, and where, given his history of travelling here, he can fend for himself. I am therefore satisfied that the Appellant may reasonably be expected to relocate within his homeland."

15. The crux of the error of law asserted in relation to the Decision is that the Judge failed to properly apply the country guidance in AA (Iraq) when dealing with internal relocation. The Judge clearly has regard to the headnote in the Decision and it is accordingly convenient at this juncture to set out what that says (so far as relevant):-

"B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)
5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P's return is not currently feasible, given what is known about the state of P's documentation.
C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).
10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.
11. Where P's return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
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 being 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 to engage Article 15(c).
E. IRAQI KURDISH REGION
17. The Respondent will only return P to the IKR if P originates from the IKR and P's identity has been 'pre-cleared' with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.
18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR."

16. Before considering the Judge's application of AA (Iraq), it is appropriate to have regard to the evidence which was before the Judge on this particular issue. As noted at [7] above, the evidence from the Appellant about his documentation is at [11] of his statement which states as follows:-

"I also wish to confirm I have never held an Iraqi passport or ID card."

That follows a passage which is also of relevance as follows:-

"[8] The Home Office say that I should relocate to Kurdistan. I wish to say that I genuinely do not believe that this is possible for me. I have never been to Kurdistan and I know nobody there. I do not believe that I have any rights to go to Kurdistan anyway. I have lived all my life in Kirkuk as my family.
[9] The only work I have ever done is farming as a labourer. I do not have any financial or other resources to assist me in relocating anywhere. I confirm that the only language I speak is Sorani. I do not speak Arabic.
[10] I confirm that in relation to Baghdad that I have never been there. Also I do not know anybody there. I simply do not know how I would live or survive there."

17. The Judge also had before him a skeleton argument which dealt with this issue in the following way. Firstly, it was asserted that as the Appellant does not originate from IKR, his return could only be to Baghdad. At [11] of the skeleton argument it is said therefore that "The Appellant will thus, theoretically be returnable to Baghdad." Reference is then made to [15] of the headnote in AA (Iraq) and submissions are made about how those issues apply in the Appellant's case. Although it is there said that "relocation to Baghdad [is] not reasonably viable", that submission appears in the context of the factors such as ability to speak Arabic, financial support and family and friendship ties. The submission is silent as to the first factor (the ability to obtain a CSID). However, it is rightly noted that the Respondent herself has contended that return should be to IKR not Baghdad (see below). Secondly, the skeleton therefore continues in relation to relocation to IKR. Again, reference is made to financial resources, the fact that the Appellant knows nobody there and that access to employment would be uncertain. It is also submitted that practicality of travel from Baghdad to IKR is uncertain although that submission is made in the context of the contested areas between Baghdad and the North of Iraq rather than in relation to inability to finance travel.

18. As noted above and as the Judge rightly observes at [19] of the Decision, the Respondent's primary position in the reasons for refusal letter is that the Appellant could reasonably relocate to Erbil or another part of the IKR. It is not there suggested that this would be the destination to which the Respondent would send the Appellant, nor could it be since it is accepted that the Appellant does not originate from there. The position appears from [21] of the decision letter to be that the Appellant could himself return to Erbil by air whether directly or from elsewhere in Iraq.

19. Drawing the above together, I am satisfied that the Judge did not err when finding at [20] of the Decision that feasibility was not at issue in this appeal. Although the Appellant says that he does not have a passport or other identity document, that is simply a statement of fact. As Mr Harrison submitted, and I accept, that is not evidence that the Appellant could not obtain a document to allow him to be returned. The position before the Judge and before me is that the Respondent simply does not know whether the Appellant has or had such a document or would or would not be able to obtain one. I also accept, as Mr Harrison submitted, that the adverse credibility findings are relevant to this position. It is also notable that the Appellant's skeleton argument makes no reference to feasibility of return being at issue in relation to internal relocation. I also observe by reference to [7] of the headnote in AA (Iraq) that it is difficult to see how the argument now made about feasibility of return would assist the Appellant if based only on the lack of available documentation.

20. I am also satisfied that the Judge did not err in relation to his consideration of the factors set out at [15] of the headnote in AA (Iraq) so far as those are raised in the skeleton argument. The Judge has faithfully followed the headnote in AA (Iraq) at [20] of the Decision through from [11] concerning the availability of a CSID to [14] where the general position is considered. By reference to what follows in that paragraph, it is clear that the Judge is considering precisely the factors which he was required to by reference to [15] of the headnote. The Judge by then had found that the Appellant was not to be believed in relation to his ability to speak Arabic ([13(e)]; that finding is not challenged. The remainder of that paragraph is directed at whether the Appellant could be expected to relocate to Baghdad notwithstanding the lack of family or friends there. I reject Mr Sadiq's submission concerning the Judge's reliance on the Appellant's "street wisdom". Whilst it is undoubtedly the case that the Appellant is in receipt of support in the UK, that will not have been the case throughout his journey to the UK. The Judge was also entitled to take into account the Appellant's credibility in relation to, in particular, his age and to note that this disclosed an attempt to "dupe the authorities here". It is also relevant to note what is said in the headnote at [15(g)] of AA (Iraq) about the possibility that the Appellant could receive support on return to Baghdad based on that which is provided to IDPs.

21. The final issue in relation to relocation to Baghdad is the Judge's finding that the Appellant would be able to obtain a CSID shortly after return to Baghdad. This is based in part on access to the National Status Court and in part on there being an alternative office for applications in Baghdad in relation to the Appellant's home area. Whilst I accept Mr Sadiq's submission that the headnote in AA (Iraq) (repeating what is said at [187] of the decision in that case) does draw attention to the lack of information about the functioning of the Court, that appears to be a separate consideration as to whether the Appellant could obtain a CSID via the alternative Civil Status Affairs Office for his home area. On my reading of the headnote and [187] of AA (Iraq) the "Central Archive" is something separate to the alternative Civil Status Affairs Office. Although it appears from [183] of AA (Iraq) that the CSA for the Appellant's home area may be outside Baghdad rather than within it, the fact remains that the Judge was entitled to find that the Appellant could obtain a CSID by that means, particularly in circumstances where it does not appear that the Appellant put forward evidence to suggest that this was not an option.

22. In any event, it does not appear from the headnote in AA (Iraq) that the same consideration applies in relation to the IKR (see in particular [17] of the headnote). Whilst I accept Mr Sadiq's submission that the Appellant cannot be returned by the Respondent directly to the IKR as he does not originate from there, it remains the position that, as a Kurd, the Appellant could decide to relocate to that area away from Baghdad.

23. In that regard, it is relevant to turn to the reasons why the Appellant said he could not do so. Aside the factors relied upon as rendering return to Baghdad as unviable, which I have dealt with at [20] above, the remaining issue is as to the practicality of relocation from Baghdad to IKR. In that regard, it is worthy of note that the point now raised - that the Appellant would not be able to afford to travel - is not one made either in the Appellant's statement or skeleton argument. Although it appears from the Judge's notes that "cost" was raised in oral submissions, it remains the position that the point now made is not addressed at all in the witness statement. It is dealt with in the skeleton argument on the basis that there are contested areas between Baghdad and IKR. It is not said that the Appellant could not financially afford to make the journey.

24. Whilst I have some sympathy with the Appellant's position as to evidence in relation to relocation to Baghdad since this was not directly raised in the Respondent's decision letter, the same is not true in relation to relocation to IKR. This was clearly the option which the Respondent favoured. It was therefore for the Appellant to provide reasons why he could not take that option. The reason now put forward is not one which was in evidence before the Judge.

25. For those reasons, I am satisfied that the errors asserted in the Appellant's grounds are not made out. The Decision does not disclose any errors of law. The grounds are in truth a disagreement with the Judge's findings in relation to internal relocation. Those findings were open to the Judge on the evidence before him.

DECISION
I am satisfied that the Decision does not contain a material error of law for the reasons given above. The decision of Judge Herwald promulgated on 17 September 2016 is therefore upheld.

Signed Dated: 23 January 2017

Upper Tribunal Judge Smith