Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08034/2016

THE IMMIGRATION ACTS

Heard at Manchester Piccadilly Decision & Reasons Promulgated
On the 13th March 2017 On the 20th March 2017

Before:
DEPUTY UPPER TRIBUNAL JUDGE MCGINTY

Between:
MR ARI ABAS ABDUL MOHAMMED
(anonymity direction not made)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Holmes (Counsel instructed by Bolton Citizens Advice)
For the Respondent: Mrs Patterson (Senior Home Office Presenting Officer)

DECISION AND REASONS
1. This is the Appellant’s appeal against the decision of First-tier Tribunal Judge Kimnell promulgated on the 26th September 2016, in which she dismissed the Appellant’s appeal against the Respondent’s decision dated the 22nd July 2016 to refuse to grant him asylum or humanitarian protection.
2. At the appeal hearing before First-tier Tribunal Judge Kimnell, the Appellant was not represented, nor was he represented when drafting his Grounds of Appeal to the Upper Tribunal. The appeal before First-tier Tribunal Judge Kimnell dealt with the third claim that the Appellant had made for asylum, and his first asylum appeal had been rejected in March 2004, and a subsequent asylum appeal had been rejected on appeal by First-tier Tribunal Judge Davidge in October 2012.
3. Within her decision, First-tier Tribunal Judge Kimnell rejected the Appellant’s evidence that his home had been damaged deliberately in a targeted attack by Abdul Mahmoud, Hashti Sha’abi or any other individual with a personal grievance against the Appellant. Nor did she accept that the Appellant had received any threats between 2005 and 2012 whilst living in Iraq and found that although the Appellant might have been involved in a motor accident, such accident was not the result of a deliberate attempt to force him off the road for reasons of personal animosity against him. The Judge therefore found that he did not have a well-founded fear of persecution for a convention reason, nor was he at a risk of serious harm being caused to him so as to give rise to the need for humanitarian protection or to lead to any breach of Articles 2 or 3 of the ECHR. The Learned First-tier Tribunal Judge at [46] went on to find that the Appellant was able to relocate in Iraq to Kairkuk where he had relatives living and where he had previously lived between 2005 and 2012, but found that in any event, the internal relocation was academic as the Appellant had no well-founded fear in his home area.
4. The Appellant has now sought to appeal against that decision. Although permission to appeal was initially refused by designated First-tier Tribunal Judge Macdonald on the 19th October 2016, permission to appeal was subsequently granted by Upper Tribunal Judge Canavan on the 15th November 2016. In granting permission to appeal, although she found that the grounds of appeal amounted to mere disagreement with the Judge’s findings of fact which were said to be unarguably open to the Judge on the evidence, Upper Tribunal Judge Canavan did go on to state:
“… However, I take into account the fact that a protection claim requires the most anxious scrutiny. It is also incumbent on a Judge to have regard to any relevant country guidance. The Judge found that the Appellant would be able to return to Kairkuk. In assessing risk on return it is a sufficiently obvious point that the Judge failed to consider the decision in AA (Article 15(c)) Iraq CG [2015] UKUT 00544. The Tribunal found that the intensity of this armed conflict in the so-called ‘contested areas’, including the governorate of Kairkuk, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his 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”.
5. Permission to appeal was therefore granted on that basis only. It was on that basis the case came before me in the Upper Tribunal.
6. In his oral submissions to the Upper Tribunal, Mr Holmes submitted that the Learned First-tier Tribunal Judge had failed, when considering the question of risk upon return, to take account of the relevant country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544, and had failed to consider whether or not the Appellant originated from a contested area. He argued that within the refusal letter at page 12 of the refusal, it was accepted by the Respondent that the Appellant was from Duz, which was in the Salah Al-Din Province, which was one of the Provinces listed within AA (Article 15(c)) Iraq CG as being a contested area to which it will not be safe for the Appellant to be returned in that as a general matter, there were substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faced a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive. He therefore submitted that it was accepted by the Respondent the Appellant could not return to his own area.
7. Mr Holmes further submitted that although the Learned Judge had then gone on to consider whether the Appellant could relocate to Kirkuk, Kirkuk also was listed within the case of AA (Article 15(c)) Iraq CG as being a “contested area”, where a civilian would face a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive. He submitted that regrettably, the Learned Judge had not taken account of that country guidance in determining whether or not the Appellant could safely return either to his home area or internally relocate to Kirkuk, and simply made findings on the basis that the Appellant had previously lived there but without considering the Article 15(c) risk.
8. Mr Holmes submitted that although at paragraph [30], the First-tier Tribunal Judge had indicated that no country evidence had been adduced, the Appellant at the time was unrepresented, and that the Appellant could not therefore be blamed for having failed to produce the appropriate country guidance case for the Judge’s consideration.
9. Having heard the submissions on behalf of the Appellant, Mrs Patterson on behalf of the Respondent conceded that within the refusal notice it was accepted that the Appellant was from Duz which is in the Salah Al-Din Province, and that there therefore may have been an error as to what the Judge found in respect of the risks if the Appellant were returned to his home town of Duz. She also quite properly conceded and accepted that the Judge had not made reference to the country guidance case of AA, when determining the risk upon return to the Appellant’s home area or in respect of his ability to internally relocate to Kirkuk. She further conceded that there was a failure by the Judge to refer to the relevant country guidance case, and that although within the Rule 24 reply submitted on behalf of the Respondent, it was argued that any error was immaterial, as the Appellant could go and live in the KRG, she accepted that in light of the decision of AA (Article 15(c)) Iraq CG, that issue had to be considered on the basis of the individual circumstances of the Appellant. She conceded that there did need to be a further hearing in respect of the Article 15(c) risk and that the determination was incomplete in that regard.
10. Mr Holmes agreed and said that the Appellant was not stating that the entirety of First-tier Tribunal Judge Kimnell’s decision should be set aside, but simply those in respect of the conclusions regarding risk upon return, and that the matter should be remitted back to the First-tier Tribunal for re-hearing before a differently constituted First-tier Tribunal in respect of consideration of the Article 15(c) risk and the ability of the Appellant to internally relocate.
11. In light of the concessions made, I do find that the decision of First-tier Tribunal Judge Kimnell sadly does contain a material error of law. The Judge in finding that the Appellant could safely return to Duz, and further finding that the Appellant could in any event safely internally relocate to Kirkuk, has failed to take account of the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544. Both Duz from where the Appellant originates, and Kirkuk, are listed within the country guidance case as contested areas, where as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his 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. The question of the risk of indiscriminate violence to any civilian returned there solely on account of his presence, has not been considered. The Judge has not considered Article 15(c) either in respect of Duz or in respect of Kirkuk where it is suggested the Appellant could in any event relocate.
12. Given the concession by Mrs Patterson in that regard, and the concession by her that the case should be remitted back to a First-tier Tribunal for re-hearing in respect of the Article 15(c) risk, I do find that the error of Judge Kimnell in failing to have regard and to consider the Article 15(c) risk, does amount to a material error of law and I do set aside the decision of First-tier Tribunal Judge Kimnell, to the extent that she finds the Appellant can safely return to Duz and/or can relocate to Kirkuk at paragraphs 45 and 46 of the Judgment.
13. However, given that the other findings of fact made in respect of the Appellant’s risk upon return have not been challenged, I preserve the findings of fact made by First-tier Tribunal Judge Kimnell between paragraphs 29 and 45 inclusive of the Judgment save for the finding that the Appellant is not at risk of harm for the purposes of Articles 2 and 3, to the extent that the Article 15(c) risk has not been considered. I preserve the findings, particularly, that the Appellant had not received any threats between 2005 and 2012 whilst living in Iraq and that whilst he might have been involved in a road traffic accident that was not as a result of a deliberate attempt to force him off the road for reasons of personal animosity and that his home had not been deliberately targeted by any person with a personal grievance against him. However, on remittal to the First-tier Tribunal, the question of the Article 15(c) risk and the question of internal relocation in light thereof, still has to be properly considered.
Notice of Decision
The decision of First-tier Tribunal Judge Kimnell does contain a material error of law and is thereby set aside to the limited extent set out above;
I remit the case back to the First-tier Tribunal with the preserved findings of fact as set out above, for reconsideration of the risk upon return, in light of the possible Article 15(c) risk in Duz and Kirkuk;
The case is be re-listed before any First-tier Tribunal Judge other than First-tier Tribunal Judge Kimnell, for that purpose;
I make no Order in respect of anonymity, no such Order having been sought before me, and no such Order having been made by First-tier Tribunal Judge Kimnell.

Signed

Deputy Upper Tribunal Judge McGinty Dated 14th March 2017