The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08269/2017


Heard at Bradford
Decision & Reasons Promulgated
On 30 April 2019
On 13 June 2019






For the Appellant: Mr Holmes, instructed by Parker, Rhodes Hickmotts, solicitors
For the Respondent: Mrs Pettersen, Senior Home Office Presenting Officer

1. By a decision promulgated on 13 March 2019, I found that the First-tier Tribunal had erred in law such that its decision fell to be set aside. My reasons were as follows:
"1. The appellant was born on 1 July 1948 and is a female citizen of Iraq. She claimed asylum on arrival in the United Kingdom in February 2017. By a decision dated 11 August 2017, the Secretary of State refused the appellant international protection. She appealed to the First-tier Tribunal which, in a decision promulgated on 7 September 2018, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. There are three grounds of appeal. I shall deal first with those grounds which I consider do not have merit. The appellant had claimed that she fears returning to Iraq as a result of an incident with a man known as Yassin. Details of that incident are contained in the decision at [56]. The judge did not believe the appellant. In part, the judge reached that conclusion because the appellant had failed in her screening interview to make reference to the incident or to Yassin at all. Instead, the appellant had claimed that the reason she had left Iraq was 'fear of IS militants.' She also said that she had nothing left for her in Iraq and that her only son was living in the United Kingdom. When questioned at the hearing about this omission the appellant had said that she was 'tired and had forgotten everything.' The grounds assert that the appellant had at the screening interview advanced her remain fear of living in Iraq, namely a fear of IS. The grounds assert that the screening interviews very often do not contain a full and detailed account of past events or an applicant's claim. Having read the decision and the screening interview very carefully, I find that it was open to the judge to reject the appellant's claim of an incident with Yassin for the very reason she gives at [56]. She was entitled to draw an adverse inference from the failure of the appellant to mention what subsequently became her main reason for seeking asylum in the Upper Tribunal, namely her fear of Yassin.
3. Secondly, the grounds assert that the judge failed to take into account material factors. Judge found that section 8 of the 2004 Act applied because the appellant had travelled on a forged passport which was produced to the Home Office is if it were a valid passport. The grounds do no more than assert that the appellant had not claimed to be of another nationality or identity even though she had used a forged passport. I cannot see how that fact should have prevented the appellant falling within the provisions of section 8. Moreover, there is not, despite what the grounds may assert, any 'double counting' by the judge of the section 8 considerations. The judge refers to the appellant's conduct and to section 8 at [55] and again at [61]; the second reference is no more than a reiteration of her previous comments.
4. Where the judge has fallen into error is in her application a country guidance. The appellant decided to depart from the existing country guidance of AA (Iraq) [2017] EWCA Civ 944. She relied upon a Country Policy and Information Note (CPIN) provided to her by the presenting officer which indicated that the appellant's home area of Diyala is no longer in the control of IS. Accordingly, she did not apply AA nor did she consider the question of internal relocation.
5. The judge's analysis is problematic. She was aware that, in order to depart from country guidance, there had to be strong evidence of a well-established and durable change in country circumstances. The appellant submits that a CPIN does not constitute evidence and is nothing more than a policy statement by the Secretary of State. Mr Howells, who appeared the Secretary of State at the Upper Tribunal, told us that CPINs are different in nature now than at the time the Upper Tribunal considered CPINs in MD (Ivory Coast) [2010] UKUT 215 (IAC) in that they consist not only of a policy statement and guidance but also comprise a section containing country material. Mr Holmes, who appeared from the appellant, accepted that that may be the case. However, he submitted that reasons given for the judge for departing from the country guidance of AA remained inadequate. I agree. The judge wrote that, 'there has not been any evidence put before be to suggest that ISIS are in control of the area or indeed have attempted to rotate control [of Diyala] and country information indicates that the areas under the control of Preshmerga and Iraqi forces.' I agree with Mr Holmes that, put that way, the judge appears to have reversed the burden of proof. Moreover, the judge gives no support for her subsequent finding that the change in circumstances in the area is 'durable'. The analysis as a whole is inadequate.
6. I set aside the decision. The judge's findings in respect of the appellant's claimed fear of ill-treatment at the hands of IS or others specifically targeted at her are preserved. The judge's findings in respect of risk on return to the appellant's home area are set aside. The Upper Tribunal will remake the decision following a resumed hearing at Bradford on a date to be fixed. Both parties may introduce fresh evidence provided copies of such evidence are sent to the tribunal and served on the other party no less than 10 days prior to the resumed hearing. The Upper Tribunal will consider whether it is safe for the appellant returned to her home area of Iraq as at the date of the resumed hearing and will, in addition, consider the question of internal flight. No other aspect of her appeal shall be revisited.
Notice of Decision
7. The decision of the First-tier Tribunal which was promulgated on 7 September 2018 is set-aside. The findings of the First-tier Tribunal to which I refer at [6] are preserved. The Upper Tribunal shall remake the decision at or following a resumed hearing at Bradford on a date to be fixed (Before Upper Tribunal Judge Lane: Kurdish Sorani interpreter: 2 hours allowed)."
2. The resumed hearing on 30 April 2019 preceded by way of submissions only.
3. Mr Holmes, who appeared to the appellant, submitted that the appellant's home area of Iraq, Diyala, remains unsafe because it is still a 'contested area.' In the light of what I said in my error of law decision at [5] and given also the material before me at the resumed hearing, I agree. I find the appellant would be exposed to an Article 15(c) risk if she returned to her home area. In addition, I agree with Mr Holmes that any removal of the appellant from the United Kingdom will be to Baghdad. If she is following arrival in Baghdad to return to her home area, she would have to arrange to travel from to Diyala Province. She would be doing so as a 71-year-old lone woman with some mobility problems. Neither party contests the appellant's claim that her only family members are not in Baghdad but in Diyala Province. It is not clear that such family members would be willing or, indeed, able to travel to Baghdad in order to meet the appellant on arrival there. Mr Holmes also submitted that the appellant would have problems without the necessary documentation (viz. a CSID). The appellant is of Arab ethnicity and she is not a Kurd. Notwithstanding that fact, she would have no prospect of employment at her age nor obvious entitlement, without a CSID, to accommodation or health care services. Mr Holmes submitted that the appellant would be exposed to real risk upon arrival in Baghdad where she would be faced with a possibly insuperable problem of caring for herself and, without family assistance there, accommodating and feeding herself in the longer term.
4. I agree with Mr Holmes. Notwithstanding the fact that the appellant is an Arab, she is not young, male or capable of subsisting in Baghdad for any period of time without a CSID or any obvious prospect of obtaining one. Given her particular circumstances, I find on the evidence that she is entitled to humanitarian protection.
Notice of Decision
The appeal is dismissed on asylum grounds. The appeal is allowed on humanitarian protection grounds

Signed Date 2 June 2019

Upper Tribunal Judge Lane