Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/05682/2016

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 3 April 2017
On 5 April 2017

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

BEwar salam
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Joseph of Counsel, instructed by Leonard Cannings Solicitors
For the Respondent: Mr Duffy, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. These proceedings follow my decision of 18 January 2017 to set aside the decision of the First-tier Tribunal due to errors of law.
2. The appellant is a national of Iraq of Kurdish ethnicity. He was born on 1 December 1990. He arrived here in November 2015 and claimed asylum. His appeal was heard by First-tier Tribunal Judge Loughridge at Newport on 17 October 2016.
3. Although errors were found in Judge Loughridge’s decision, the respondent did not challenge the findings made in respect to the appellant should he be returned to the IKR. Those are, therefore, preserved.
4. The only issue on which fresh fact finding and decision making are required is the ability of the appellant to internally relocate to Baghdad or another part of Iraq. I heard brief oral evidence and submissions on these matters.
5. The appellant confirmed his personal details and adopted his recent witness statement which he confirmed to be true and accurate. In cross-examination he confirmed that he had no family outside Kurdistan and he had never been outside the Kurdish area in Iraq. He stated that he had no knowledge of Arabic. He was afraid of his uncle (in fact a step-uncle, the son of his paternal grandmother through her second marriage) whom he believed would be able to locate him throughout Iraq because he worked for the intelligence services of the KDP. There was no re-examination.
6. Mr Joseph relied on his skeleton argument. He reminded me that the First-tier Tribunal Judge had accepted that the appellant’s uncle worked for the intelligence services (at paragraph 63) and that it had been the evidence of Dr George that he was at risk of being targeted throughout Iraq (at paragraph 62, p. 125 AB). He drew my attention to the expert’s conclusions on the appellant’s presence as a newcomer and to the risk of being kidnapped and/or killed. He referred to BA (Returnees to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) for which Dr George had also given evidence. Whilst the risk factors may not be sufficient to cause problems on their own, cumulatively they lead to a real risk of serious harm. The appellant had already been finger printed for a passport and so would be readily identifiable as a Kurd and a Sunni. The appellant did not have any documents and that was an added risk factor as was his inability to speak Arabic and the absence of any friends or family in Baghdad. The same factors applied to relocation in a southern governate.
7. Mr Duffy submitted that the appellant could return to Baghdad. His family in Erbil could assist him in obtaining documents with which he could then access accommodation and employment. It was not likely that he would be kidnapped on a suspicion of being wealthy. Nor would he be suspected of being an ISIL supporter. His uncle only had influence in the KDP and it was unlikely that he would have influence in Baghdad or in the south. The cumulative risk factors did not add up and the appellant could return safely.
8. Mr Joseph had nothing further to add in response.
9. That completed the submissions. At the conclusion of the hearing I reserved my determination which I now give.
Discussion and Findings
10. In reaching my findings, I have taken careful note of all the evidence relied on by the parties, whether or not it is specifically referred to in my determination. I also have regard to the lower standard of proof on the appellant to make out his case.
11. It is accepted that the appellant is Kurdish, Sunni and from the IKR. There was no challenge to his evidence that he does not speak Arabic, that he has never been outside of the IKR to a different part of Iraq or that he has no friends or family outside the IKR. It is also accepted that his uncle holds a senior role in intelligence with the KDP. I now apply those facts to the evidence with a view to assessing the risk, if any, to the appellant outside the IKR and his ability to relocate to either Baghdad or a southern governate. Various risk factors have been put forward and I consider these.
12. It is said that the appellant would be at risk of kidnapping because of the time he has spent abroad and the perception that he may be wealthy. I do not find any substance in this argument. If the appellant relocates to Baghdad or the south and if his background became known quickly, as is suggested in the skeleton argument, then it would also be known that he had no wealth.
13. It is maintained that the appellant would be located by his step-uncle wherever he went in Iraq. I do not accept this. There is no evidence that the appellant’s step-uncle holds power outside the Kurdish areas or indeed that Kurdish intelligence information is shared with the Iraqi intelligence services in order to trace Kurds outside the IKR. It is not suggested that the step-uncle has connections in Baghdad or the south which he could rely upon to feed him information about the return of the appellant. Even if he was somehow traceable, it would be highly unlikely that the step-uncle would be able to pursue him outside the IKR or send others to harm him given all the restrictions on movements and frequent checkpoints. I have taken note of Dr George’s observations on honour killings in coming to my conclusions but such reprisals are said to feature mainly in Kurdish areas and largely involve female victims.
14. Information about Kurds living outside the IKR is contained at paragraph 127 of Dr George’s report. There are said to be some 900,000 in Baghdad. Whilst it could have been argued that the appellant could seek refuge amongst them, Mr Duffy fairly accepted that they would be native to Baghdad and would be Arabic speakers. There is no evidence before me at all as to whether there are any Kurds from the IKR who live in other areas of the country. On the basis of the evidence I have, and the submissions made, I do not find that the presence of native Kurds in Baghdad would assist the appellant in his relocation there.
15. According to the respondent’s country information report, individuals seeking to enter Baghdad or the southern areas require a local guarantor. As the appellant has no connections with anyone in those areas, he would not have a guarantor. He does not have any identity documents although these could possibly be obtained via his family if they remain where he left them and if contact could be made. However, even with documents, the issue of a local guarantor cannot be overcome.
16. There is also reference in this report to IDPs being barred from entering Baghdad and other areas on the basis of their identity. As a Sunni Kurd, the appellant may not be welcomed if he attempted to relocate there. That is further confirmed by Dr George who reports on the increasing tensions between Kurds and Arabs and states that Kurds are considered to be traitors with many having been attacked and driven from their homes as suspected collaborators with the US (at paragraphs 127-132). As the guidance in BA confirms, the authorities in Baghdad are generally unwilling and unable to provide protection to Sunni complainants, even more so I would think for Sunni Kurds.
17. I accept the evidence on checkpoints set out at BA and in the skeleton argument. If the appellant managed to enter Baghdad, these checkpoints would be a recurrent problem for him. Not only would the appellant be at risk as a young Sunni man, he would face additional risk factors on account of being a Kurd and a newcomer to the area about whom little was known.
18. The appellant would be in a small minority, if not in a relatively unique position, of being a non-Arabic speaking Sunni Kurd in Baghdad or the south. Given the absence of any network he could turn to for help, the absence of friends or relatives in these areas, the lack of a local guarantor and his complete lack of knowledge about the area, I find that he would be at real risk of serious harm on account of his ethnicity and/or religion if he was removed to Baghdad or any of the southern areas. It follows that article 3 is also engaged. Mr Joseph did not expand on his mere assertion that the appellant qualified for humanitarian protection and, in those circumstances, I do not find that he does.
19. Decision
20. The appeal is allowed on asylum and article 3 grounds. It is dismissed on humanitarian protection grounds.

Signed

Upper Tribunal Judge
Date: 3 April 2017