Tribunal decisions

The decision

The Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05440/2016

THE IMMIGRATION ACTS

Heard at North Shields
Decision & Reasons Promulgated
On 1st January 2017
On 30th January 2017

Before

DEPUTY JUDGE OF THE UPPER TRIBUNAL FARRELLY

Between

R.A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mrs M. Cleghorn, Counsel, instructed by Halliday Reeves Law Firm.
For the Respondent: Mr. A. McVeety, Home Office Presenting Officer.

DECISION AND REASONS
Introduction
1. The appellant in the First-tier Tribunal proceedings is the one who is appealing to the Upper Tribunal. Consequently, the parties are named as before.
2. He made a claim to protection in December 2015 stating he was an Iraqi Kurd from Mosul. He was not married and worked as a farmer. He is a Sunni Muslim.
3. He said his paternal uncle was killed in 2003. He was a member of the Baath party and had enemies because of his involvement in the mistreatment of Kurds and Arabs.
4. He said that after ISIS bombed his village in August 2014 he decided to leave. He went to Turkey where he remained for almost a year and a half and then paid an agent to come to the United Kingdom. He said he would be at risk on return from ISIS and also from Kurds and Arabs because of his association with his uncle. He said he had no documentation.
5. His claim was refused in May 2016. His identity was accepted. It was not accepted he was at risk from any of the sources he identified. It was not accepted his uncle was involved with the Baath party and it was pointed out that on his own account he had lived for many years unhindered. Inconsistencies were noted about the claimed attack on his village by ISIS and it was not accepted he had encountered problems.
6. Given where he was from the respondent considered the possibility of relocation, stating the Iraqi government respected freedom of movement. Reference was made to the country guidance decision of AA (article 15 (c) Iraq CG [2015] UKUT 544 where the question of identity documentation necessary to enter and live in the country was considered. Whilst in the United Kingdom he could approach the Embassy in London to obtain replacement documentation. The appellant had said he previously held an identity card. The country information indicated that a returnee could attend at the Iraqi Ministry of Displacement and Migration which has several offices in Baghdad and obtain replacement documentation. The information was that they held records which would enable documents to be issued.
7. He could return to the Kurdish region of Iraq which is virtually violence free and there is no article 15 (c) risk. The country guidance decision stated that the information was that a Kurd who did not originate from the Kurdish region can obtain entry for 10 days as a visitor and this could be renewed for a further 10 days. If they secured employment they could remain longer. An assessment would be needed as to the likelihood of the individual securing employment and consideration given to the availability of assistance. There was no evidence that the authorities pro actively remove Kurds. The practicalities of returning from Baghdad to the Kurdish region would be fact sensitive with the possibility of travel to Irbil by air.
8. The respondent also felt relocation to Baghdad or another region in the south of Iraq was viable. In Baghdad, the cost of living was lower compared to the Kurdish region and there were a considerable number of Sunnis.

The First tier Tribunal
9. The appellant's appeal was heard by First-tier Judge Myers at Bradford in September 2016.The judge did not find the appellant's account credible. The judge did not accept he was without family in Iraq and rejected his claim he was at risk by reason of his uncle. The judge accepted he originated from Ninewah, a contested area and that it would be unsafe for him to return there. The judge noted that the situation was ever-changing but accepted there would be a 15 (c) risk in his home area.
10. The judge considered the issue of relocation: either to Baghdad or the Kurdish region. The judge concluded that he would not be at risk in Baghdad but it would be unduly harsh to expect him to locate there or to the south of the country. This was because there was no evidence he had any family or support available there. Furthermore, as a Sunni Kurd he would be in a minority.
11. The judge concluded it would not be unduly harsh to expect the appellant to relocate to the Kurdish region. He would be able to obtain temporary admission and to remain if he could find employment. He would be able to obtain employment and the evidence was that the authorities were not removing Kurds who had relocated. He could travel from Baghdad to Erbil by air.
12. The judge accepted that the appellant did not have documentation and would not be able to supply sufficient information to the Embassy in order to obtain a laissez passer and concluded that his return was not currently feasible.

The Upper Tribunal
13. Permission to appeal was sought on the basis the judge materially erred in law in the application of the country guidance decision in concluding the appellant could relocate to the Kurdish region. The country guidance decision referred to returning a Kurd to the IKR whose identity had been pre-cleared with the Kurdish authorities. Those authorities did not require an expired or current passport or a laissez passer. It was suggested that the judge erred in law in concluding the appellant could travel to the Kurdish region as he had no documentation to confirm his identity and so arguably could not be pre-cleared.
14. It was suggested that the judge was speculating in concluding the appellant could find employment in the Kurdish region given the high rate of unemployment there.
15. It was also argued that the judge failed to take account of the problems of travel within the Kurdish region without documentation. Reference was made to expert evidence heard in the country guidance case to the effect that displaced persons were not permitted to travel within the Kurdish region and so could not seek work.
16. It was also contended, based on the country guidance decision, that someone return to Baghdad would not be allowed to exit the airport without production of documentation or, if admitted, could not access services.
17. Permission to appeal was granted on the basis that having found the appellant was undocumented and unable to supply sufficient information to obtain a laissez passer it was arguably an error of law to conclude he could travel from Baghdad to Erbil or that he could obtain employment in the permitted timescale.
18. At hearing the arguments advanced on the leave application were referred to. Mrs Cleghorn argued that relocation was not viable. She pointed out the appellant was from the contested area of Ninewah and could not return there .The only issue was whether he could relocate to the Kurdish region .To return to Baghdad and seek documentation was not possible as she said the offices are now closed. Furthermore, she submitted he could not gain entry to the Kurdish region. In response the presenting officer said there were flights to the Kurdish region and that Kurds were accepted there. In response, Mrs Cleghorn submitted that there was no reason to believe the appellant could secure employment in the Kurdish region as he had no family or support.

Consideration
19. Permission to appeal has been granted on the basis it is arguable the judge incorrectly applied AA (article 15 (c) Iraq CG [2015] UKUT 544 in concluding it would not be unduly harsh for him to relocate to the IKR. In considering this question it is first necessary to note the judge's findings which have not been challenged.
20. Firstly, the underlying claim was not found to be credible. His claim that he was at risk because of a family association through his father with the Baathists was rejected as untrue. His claim about ISIS attacking his village was rejected. His claim he had no family alive was rejected. The judge found that he had family members living in Mosul who could help.
21. At paragraph 29 the judge found that there was no evidence he ever had a passport or a laissez passer. There was no evidence he had a CSID (civil status identity card) or would be able to supply sufficient information to the embassy to obtain a laissez passer. The judge concluded therefore that his return to Iraq was not currently feasible.
22. The judge nevertheless went on to consider the question of return. The judge accepted that he was from Ninewah, a disputed territory and in accordance with AA (article 15 (c) Iraq could not be returned there. The judge then went on to consider the question of relocation either to Baghdad or to the I KR.
23. Regarding Baghdad, the judge concluded it would be unduly harsh to expect him to go there or further south. This was on the basis that (a) he had no CSID or the necessary information to obtain one;(b) he had no family support in Baghdad; and, (c) as a Sunni he was in a minority.
24. The judge did conclude he could reasonably relocate to the IKR. The judge at paragraph 31 stated that he could obtain temporary admission because he was Kurdish and if able to find employment could remain, the authorities were not actively removing Kurds whose permits had come to an end. He could travel from Baghdad to Erbil by air. As a healthy resourceful young man able to live in Turkey and travel through Europe he would be able to obtain employment. It is these conclusions which are said to be contrary to the country guidance.
25. The decision of the judge indicates that the different aspects of return set out in AA (article 15 (c) Iraq were considered. The judge first of all considered where the appellant was from and recognised it as a contested area and in accordance with the case law could not be returned. There were then two alternatives, Baghdad or the IKR. It was open to the judge to find the appellant could relocate to Baghdad. However, the judge accepted the appellant's evidence about his documentation and the difficulties he would have obtaining it. Although the judge acknowledged he had family the judge felt he would not be able to avail of their support in Baghdad. Finally, the judge took the view that as a Sunni he would be part of a minority group in Baghdad. The case law would not indicate the latter alone would suffice. However the judge clearly had in mind the cumulative effect of these three factors in concluding it would be unduly harsh.
26. The judge then progressed to the final option, relocation to the IKR. At this point I would refer to what was said in AA (article 15 (c) Iraq rather than just the head note. Before doing so it was noted by the presenting officer that the quotation from the case about returns to the IKR at paragraph 11 of the application for leave is referring to an extract from the appellant's skeleton argument quoted in the judgement rather than something said by the court.
27. At paragraph 24 of AA (article 15 (c) Iraq the court said there are flights to the IKR from Baghdad every second day and flights directly from London. At paragraph 87 it was pointed out that the burden of proof rests upon the appellant, albeit the standard of proof is low in relation to article 15 (c). Paragraph 113 recorded that the evidence did not establish an article 15 (c) risk to an ordinary citizen in the IKR and their ethnicity, religion or sex did not increase the risk. The Kurdish region is virtually violence free.
28. In the present case the issue is the ability of a Kurd who is not from there to enter and remain. Specific guidance is contained at paragraph 171 where the Upper Tribunal said:
... The position of Iraqi Kurds not from the I KR is that they can gain temporary entry to the I KR, that formal permission to remain can be obtained if employment is secured; and that the authorities in the I KR do not proactively remove Kurds whose permits have come to an end. Whether this state of affairs is such as to make it reasonable for an Iraqi Kurd to relocate to the I KR is a question that may fall to be addressed by judicial fact finders if it is established that on the particular facts permanent relocation to Baghdad would be unduly harsh. In such circumstances the person concerned might reasonably be expected to relocate to the I KR.
29. Judge Myer included this quotation in the decision. She clearly had this in mind at paragraph 31 where she said he will be able to remain if he can find employment. She took the view he would be able to obtain employment.
30. The final part of paragraph 171 which is also recorded at paragraph 20 of the guidance reads;
In this scenario, whether such further relocation would be reasonable will itself be fact sensitive, being likely to involve(a) the practicality of travel from Baghdad to the I KR such as to Irbil by air ): and (b) the likelihood of securing employment; and(c) the availability of assistance from friends and family in the I KR.

Conclusions
31. Although the judge has correctly focused on the issues I find the decision does not adequately deal with the issues in para 30 above. For instance, the judge simply states at paragraph 31 of her decision he will be able to obtain temporary admission and there was no evidence he could not fly from Baghdad to Irbil by air. She then premises his gaining employment upon the fact he is young and healthy and has survived outside his home country.
32. The country guidance decision indicates that someone who is not from the I KR cannot be returned directly from the United Kingdom to there. Instead, they have to go to Baghdad and then travel from there to the I KR. It is not apparent if there are any exceptions whereby they can fly directly. The Upper Tribunal found the expert evidence of Dr Fatah to be impressive and authoritative. His evidence recorded at paragraph 24 of the Country guidance decision was that the entry requirements for the I KR were arbitrary and the ability to renew entry clearance to become a permanent was dependent on the particular officer considering the application.
33. The situation in the country is ever-changing and there may have been material quoted to the judge not reflected in the decision. However, it was incumbent upon the judge to set out more specifically her reasons in relation to the feasibility of relocation on a basis beyond the initial entry period. As the reasonableness of the relocation is central to the appeal more specific findings had to be made. I find this is a material error of law.

Error of law.
34. For the reasons set out above the decision of First tier Judge Myers dismissing the appellant's appeal contained a material error of law and is set aside. I would reserve the facts found as set out below.

Deputy Upper Tribunal Judge Farrelly

An Anonymity Direction is made. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify them. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of Court proceedings.

Disposal
35. I would preserve the unchallenged findings of the judge that the underlying claim about past events is untrue. It is not disputed that he is Kurdish and from what is currently a disputed area.
36. Because the remaining issues will require factual findings, for instance, in relation to where his family are and how they can help him and; his ability to enter and remain in the I KR long-term the most appropriate course, given the extent of the fact-finding necessary is to remit the matter to the first-tier Tribunal to make those findings. The tribunal is directed to apply the relevant country guidance.
37. Country conditions do change. As things stand the focus should be upon the practicalities of the appellant's relocating to the IKR . This will involve consideration of whether he can fly there directly from United Kingdom and be granted entry without documents or whether he would have to go via Baghdad. If the latter, information about travel to Erbil by air would need to be considered. It would also be helpful to have some information about the availability of employment in the IKR on the basis the appellant is a manual worker. Although the judge considered relocation to Baghdad would be unduly harsh I would leave this open to further argument in the First-tier Tribunal dependent upon country conditions when the appeal is relisted.

Deputy Judge Farrelly

Directions

1. Relist in the first-tier Tribunal for a rehearing on the question of relocation within Iraq .
2. The findings made in the First-tier Tribunal whereby the underlying claim was found not to be credible are preserved.
3. The parties are to focus upon the practical issues involved in relocation to the IKR. The should include providing country information about the feasibility of return including the following:
(a) whether the appellant can fly directly from United Kingdom to the IKR.
(b) if not, whether the appellant can fly from the United Kingdom to Baghdad and from there travel onwards to the IKR. Information about the possibility of his travel by air to Irbil should be provided.
(c) some information should be provided about the availability of unskilled work in the KDI.
4. Since preparing this decision the further country guidance of BA (return as to Baghdad) Iraq CG [2017] UKUT 00018 was promulgated. This guidance is dealing with a comparatively narrow issue which did not directly affect the present appeal. Consequently, there was no requirement to hear from the parties on this. However between now and the relisting of the appeal the alternative of a return to Baghdad may become an issue dependent upon country conditions.

Deputy Judge Farrelly