Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05152/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision and Reasons Promulgated
on 5th September 2016
On 6th September 2016

Before

upper tribunal JUDGE MACLEMAN

Between

a h ibrahim
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr C McGinley, of Gray & Co., Solicitors
For the Respondent: Mrs M O'Brien, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant identifies himself as a citizen of Iran, born on 10th August 1996. He has not sought anonymity. He appeals against a decision by First-tier Tribunal Judge Herwald, promulgated on 25th July 2016, dismissing his appeal against refusal of recognition as a refugee.
2. The grounds of appeal to the Upper Tribunal are directed against the judge's finding at paragraph 14(c) that because the appellant did not remain or seek protection in "Kurdish Iraq ... an autonomous part of Iraq, peopled by his own compatriots" his credibility was "seriously impugned".
3. Mr McGinley wondered whether the judge had confused the present case with the more common situation of Iraqis who may have internal relocation to Iraqi Kurdistan available to them. This appellant, although Kurdish, had crossed an international border to reach Iraq.
4. In response to Mr McGinley's submissions Mrs O'Brien fairly and correctly conceded that the judge took this point without notice, and made too much of it.
5. There may be availability of protection in Iraqi Kurdistan, but there was no evidence or submissions about that issue. The respondent's decision founded upon the appellant's failure to claim in the first available safe country, but under reference to Bulgaria, Belgium and France not to Iraq. There was no Presenting Officer in the First-tier Tribunal. Mr McGinley had been asked to take his client through matters referred to in the refusal letter, but the question whether the appellant might reasonably have remained in Iraqi Kurdistan had not been raised. The error was not one which could be extracted from the decision, so as to leave adequate support by other reasoning.
6. It became common ground that the case should be disposed of as follows. The decision of the First-tier Tribunal is set aside. None of its findings in fact are to stand. Under section 12(2)(b)(1) of the 2007 Act and Practice Statement 7.2 the nature and extent of judicial fact-finding necessary for the decision to be re-made is such that it is appropriate to remit the case to the First-tier Tribunal. The members of the First-tier Tribunal chosen to reconsider the case are not to include Judge Herwald.

6 September 2016
Upper Tribunal Judge Macleman