Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06223/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Determination issued
on 3 April 2017
on 5 April 2017

Before

UPPER TRIBUNAL JUDGE MACLEMAN

Between

HALMAT ABUBAKR
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr S Winter, Advocate, instructed by Maguire Solicitors (Scotland) Ltd
For the Respondent: Mr M Matthews, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant is a citizen of Iraq, born on 21 March 1991. The respondent refused his protection claim for reasons explained in her decision dated 3 June 2016.
2. The respondent declined to accept that the appellant was unable to return to the IKR because his father had been a senior figure in the Baath party. However, he was accepted to be an Iraqi Kurd from the Kirkuk area who had fled to Erbil. Under reference to AA Iraq CG [2015] UKUT 544, as a Kurd who had lived and worked in Erbil, he could reasonably be expected to re-establish his life in the IKR.
3. FtT Judge David C Clapham dismissed the appellant’s appeal for reasons explained in his decision promulgated on 17 October 2016.
4. The appellant was granted permission to appeal to the UT on these grounds:
The judge decided the appellant was not a credible witness in many respects but accepted he would require to become an internally displaced person who, based on the conclusion he had been in Erbil for 7 - 8 months and worked as a labourer there, would be able to obtain work and support himself.
There was a COIR before the judge from August 2016 indicating … a material deterioration with 52% of the population of Erbil now requiring work.
In light of that the judge had no basis to say the appellant would find work in Erbil or at least failed to explain adequately why the changed situation would not alter the prospects of the appellant finding work and being able to maintain himself. The judge erred by failing to have regard to the up-to-date evidence of the situation in the KRG or to adequately explain his reasons.
The judge records at paragraph 20 submissions … in respect of paragraph 276ADE of the immigration rules. The judge … fails to address that issue. Even if internal flight was an option (which is denied) the appeal could have succeeded under that immigration rule…
5. Mr Winter sought permission to argue additional grounds of appeal:
The FtT erred in law as there was no or insufficient evidence that the Kurdish authorities had pre-cleared the appellant (AA at headnote 17 and paragraph 150) failing which the judge failed to explain how he assessed this factor … or failed to exercise anxious scrutiny … This is material as if the appellant does not have preclearance he would have to exercise internal flight to Baghdad … The respondent’s case seems to been premised on … an implicit acceptance that relocation to Baghdad would be unreasonable. In any event, there was no such assessment by the judge… [the appellant] does not have any ties in Baghdad, would face language difficulties, is Sunni, and faces the risk of kidnapping… The foregoing would also undermine the findings in relation to paragraph 276ADE of the rules.
Further and in any event the judge erred in terms of paragraph 170 of AA … and misapplied the case law … There was no or insufficient evidence from the respondent to inform the tribunal whether and if so what documentation led the Iraqi authorities to issue the national with a passport or laissez passer… This is material as if the appellant is only issued with a laisser passer he will not be able to use this to fly to the KRG … Further it is material in determining the reasonableness of relocation to Baghdad, if indeed that is an issue, with regard to absence of a CSID. The foregoing would also undermine the findings in relation to paragraph 276ADE of the rules.
6. Mr Winter referred to the evidence mentioned in the original grounds – humanitarian needs in various areas, in particular the 52% rate for employment in Erbil. He said this was evidence of deterioration since country guidance, which the judge should have taken as showing that the appellant would have difficulty in finding work.
7. On the additional ground, Mr Winter said it was for the respondent to prove and for the tribunal to examine whether preclearance was needed, or was in place. If not, the consideration had to focus on Bagdad. Absence of that consideration required a rehearing in the FtT.
8. I am not persuaded that the grounds, including the proposed additional grounds, show any error by the FtT on a point of law.
9. As Mr Matthews pointed out, the information about the situation in Erbil dated from the period when the appellant said he was working there.
10. Paragraph 276ADE of the rules governs leave to remain on grounds of private life in the UK. Sub-paragraph (vi) relates to “very significant obstacles to the applicant’s integration into the country to which he would have to go”. That is not a test for leave to remain which can be met by showing generalised difficulties falling short of article 15 (c) or other protection standards. The appellant is an Iraqi Kurd. The difficulties he might face are common to most of his compatriots, not problems of integration into the host society.
11. The appellant made no case why, consistently with AA, it might be difficult for him to re-enter the IKR via Bagdad. That was the respondent’s primary position. It does not involve preclearance with the authorities of the IKR.
12. The appellant relied on headnotes 8 and 17 and on paragraph 150 of AA. Reading that decision sensibly and as a whole, and as a matter of principle, there is no obligation on the respondent to prove preclearance or any other mechanism of return in an individual case in advance of decision of an appeal.
13. It is for the appellant to establish the facts on which any claim to protection depends, including any alleged absence of or difficulty in obtaining documentation. No coherent case having been built at the hearing, it is not apt later to conjure up hypothetical difficulties.
14. The determination of the First-tier Tribunal shall stand.
15. No anonymity direction has been requested or made.

4 April 2017
Upper Tribunal Judge Macleman