Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/06862/2016

THE IMMIGRATION ACTS

Heard at Glasgow
Decision & Reasons Promulgated
On 6 March 2017
On 20 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

FARHAD ABDULLAH HASSAN
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:
For the Appellant: Ms N Loughran of Loughran & Co, solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge Paul promulgated on 25 November 2016, which dismissed the Appellant’s appeal on all grounds.

Background

3. The Appellant was born on 1 July 1992 and is a national of Iraq.

4. On 17 June 2016 the Secretary of State refused the Appellant’s protection claim.

The Judge’s Decision

5. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge Paul (“the Judge”) dismissed the appeal against the Respondent’s decision. Grounds of appeal were lodged and on 20 December 2016 Judge Hodgkinson gave permission to appeal stating

It is at least arguable that the Judge’s credibility assessment focused largely on the plausibility of various aspects of the appellant’s account. Although he made reference to the background evidence later in the decision, at that point, he had already rejected the credibility of the core aspects of the appellant’s claim. The background evidence should have formed part of a holistic assessment of the credibility of the appellant’s account. Having proceeded on the basis that it was reasonably likely that the appellant came from an area that was found by the tribunal in AA(Iraq) to give rise to a generalised risk of violence, it is arguable that the Judge failed to apply the country guidance properly. It is arguable that his assessment of risk in the appellant’s home area was flawed because he failed to make reference to the country guidance. In focusing entirely on the question of whether it was feasible to return the appellant to Iraq it is arguable that the Judge failed to consider a material issue, which was whether it was reasonable or unduly harsh to expect the appellant to relocate to another area of Iraq such as Baghdad.

The Hearing

6. (a) Ms Loughran, for the appellant, moved the grounds of appeal. She told me that the Judge failed to consider whether it was unreasonable or unduly harsh for the appellant to relocate to Baghdad, or to another part of Iraq. She told me that the decision contains a number of material errors of law, the foundation for each of which is found in the failure of the Judge to make a definitive finding about the area in Iraq that the appellant originates from.

(b) Ms Loughran took me to [31] of the decision, where the Judge says that he proceeds on the basis that the appellant may come from the area of Iraq associated with Kirkuk. She referred me to AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) and told me that if there is a finding that the appellant comes from an article 15 C risk area, then further findings must be made in relation to the feasibility of return, possession of CSID documents, family links and sufficiency of protection before a conclusion can be reached. She told me that none of the findings of fact made by the Judge come close to the required analysis of the circumstances the appellant might face on return. She told me that without that fact-finding and analysis the decision is tainted by material errors of law.

(c) Ms Loughran told me that the decision proceeds solely on the Judge’s decision that the appellant is not a credible witness fails to take proper account of the guidance given in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). She took me to [40] of the decision and told me that, there, the Judge makes a bald statement that he does not find the appellant to be credible and does not provide reasoning to support his conclusion. She told me that the Judge had failed to take a holistic assessment of the background materials, as well as the appellant’s own evidence, before assessing credibility.

(d) Ms Loughran took me to [33] where the Judge simply says that he finds certain actions to be incredible, without providing any reason for rejecting the evidence concerning the appellant’s period in an IDP camp. She told me that, cumulatively, the failings argued indicate that the Judge had not followed country guidance, had carried out for flawed assessment of credibility, and had failed to properly address the feasibility of internal relocation. She asked me to allow the appeal and to set the Judge’s decision aside.

7. (a) For the respondent, Mr Mullen told me that the decision does not contain any errors of law, material or otherwise. He told me that there is nothing wrong with what is said at [31] of the decision, & that the Judge took the correct approach in giving the appellant benefit of the doubt and finding that the appellant came from an area associated with Kirkuk. He told me that the Judge carries out a careful analysis of the evidence and justifiably found that there are significant discrepancies in the appellant’s account. He told me that the Judge adequately explains why he finds that the appellant is not a credible witness.

(b) Mr Mullen told me that the Judge had carefully considered whether the appellant possesses identity documentation, and gives adequate reasons for finding that the appellant has identity documentation. He reminded me that it is for the First-tier Judge to decide what weight should be given to evidence, and told me that the Judge makes adequate findings between [40] and [42] before coming to the conclusion that the appellant can safely return to Iraq.

(c) He urged me to dismiss the appeal and allow the decision of the First-tier tribunal to stand.

Analysis

8. In AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC) it was held that (i) There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called "contested areas", comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta'min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive; (ii) The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1; (iii) The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c); (iv) In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.

9. At [31] of the decision the Judge declares that for the purposes of this appeal he accepts that the appellant is an Iraqi national who comes from an area “associated with Kirkuk”.

10. That finding places the appellant’s hometown in a contested area, where there is a generalised article 15(c) risk. That finding means that the appellant cannot return to his home area and because the appellant does not come from the IKR the appellant cannot be returned to IKR. The only point of return for the appellant is therefore Baghdad. The Judge’s findings at [31] point the way to consideration of the feasibility of return to Baghdad and then onward travel to a safe part of Iraq.

11. In BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) it was held that (i) The level of general violence in Baghdad city remains significant, but the current evidence does not justify departing from the conclusion of the Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). (ii) The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq. (iii) The current evidence indicates that the risk in Baghdad to those who worked for non-security related Western or international companies is low although there is evidence to show that insurgent groups such as ISIL are active and capable of carrying out attacks in the city. In so far as there may be a low level of risk from such groups in Baghdad it is not sufficient to show a real risk solely as a perceived collaborator. (iv) Kidnapping has been, and remains, a significant and persistent problem contributing to the breakdown of law and order in Iraq. Incidents of kidnapping are likely to be underreported. Kidnappings might be linked to a political or sectarian motive; other kidnappings are rooted in criminal activity for a purely financial motive. Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone. (v) Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm. (vi) Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case. (vii) In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection.

12. What is not in dispute in this case is that the appellant is a Kurd; he is a Sunni Muslim; the appellant does not speak Arabic, and the appellant’s parents, his uncle and his uncle’s family are his only close relatives in Iraq, and all of them are in a refugee camp.

13. The Judge rejected the appellant’s claim, finding that the appellant is not a credible witness. His assessment of credibility is inadequately reasoned. He commences his assessment of credibility at [32]. In the final sentence of [32] the Judge adopts the terms of 11 paragraphs from the respondent’s reasons for refusal letter, rather than carrying out his own analysis of the evidence and explaining his conclusions.

14. Whether the Judge was correct or incorrect to find the appellant is not a credible witness, it was incumbent on the Judge to make his own findings of fact, rather than adopt the reasoning (and wording) of a party to the appeal. It was also incumbent on the Judge to consider the appellants profile, and then consider whether the appellant could safely return to Iraq.

15. Although the Judge notes that he was referred to background materials which postdate AA (the Country Information and Guidance prepared in August 2016 referred to at [22] of the decision) the Judge does not explain why he felt able to depart from country guidance given in AA and now reaffirmed in BA.

16. The Judge’s conclusions and reasons start at [29] of the decision. Between [31] and [38] of the decision the Judge deals with credibility. At [40] the Judge identifies that one of the issues he has to resolve is the feasibility of return, but he then goes on to simply decide that return is feasible because he finds the appellant is not a credible witness. That is a material error of law.

17. Even if there is no substance to the appellant’s claim, what has to be considered is the place to which the appellant is to be returned & the circumstances the appellant will find himself in there. Put simply, in line with the case of AA the appellant cannot return to his home area. The central issue in this case is the question of internal relocation. The Judge has not considered whether internal relocation is reasonable and whether or not internal relocation is unduly harsh.

18. At [41] the Judge baldly states that there a Kurdish Sunni Muslim from Kirkuk can return to Baghdad. Since promulgation of the Judge’s decision, BA has been promulgated. That case emphasises the importance of considering the profile of the appellant against the possibility of return to Baghdad. The fact that BA postdate’s the Judge’s decision does not remove the obligation to consider whether or not the appellant can return to Baghdad or elsewhere. The penultimate sentence of [42] is an acknowledgement by the judge of the task which he had to complete. Although the Judge acknowledges that he had to assess whether or not the appellant can safely be removed to Baghdad, nowhere in the decision does the Judge set out adequate reasons for finding that this appellant would be safe and protected from destitution if returned to Baghdad.

19. I therefore find that the decision is tainted by material errors of law. A fuller fact finding exercise might have resulted in a different outcome to this appeal. I must therefore set the decision promulgated on 25 November 2016 aside.
20. I have already found material errors of law in the fact-finding process carried out by the First-tier in the decision promulgated on 25 November 2016. I therefore find that I cannot substitute my own decision because of the extent of the fact-finding exercise required to reach a just decision in this appeal.
Remittal to First-Tier Tribunal
21. Under Part 3 paragraph 7.2(b) of the Upper Tribunal Practice Statement of the 25th of September 2012 the case may be remitted to the First-tier Tribunal if the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or

(b) the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
22. In this case I have determined that the case should be remitted because a new fact finding exercise is required. None of the findings of fact are to stand and a complete re-hearing is necessary.
23. I remit the matter to the First-tier Tribunal sitting at Glasgow to be heard before any First-tier Judge other than Judge Paul.

Decision
24. The decision of the First-tier Tribunal is tainted by material errors of law.
25. I set aside the Judge’s decision promulgated on 25 November 2016. The appeal is remitted to the First-tier Tribunal to be determined of new.

Signed Date 16 March 2017

Deputy Upper Tribunal Judge Doyle