PA/08411/2019

• Status of case: Unreported
• Hearing date: 15 Jun 2022
• Promulgation date: 8 Aug 2022
• Publication date: 20 Dec 2023
• Last updated on: 20 Dec 2023

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08411/2019


THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On the 15 June 2022
On the 08 August 2022




Before

UPPER TRIBUNAL JUDGE REEDS

Between

S M
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:

For the Appellant: Ms L. Brakaj, instructed on behalf of the Appellant.
For the Respondent: Ms Z. Young, Senior Presenting Officer


DECISION AND REASONS

Introduction:
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
1. The appellant is a national of Iraq of Kurdish ethnicity from Kirkuk. He left Iraq on 10 October 2018 and travelled to Turkey with the help of an agent. He stayed in Turkey in a hotel with friends and travel to unknown countries in the back of a lorry. He travelled to France where he stayed 1 ½ months and then the appellant travelled to the UK clandestinely and arrived on 11 December 2018 and claimed asylum the same day.
2. In a decision letter dated 21 August 2019 the respondent refused his claim. His appeal came before the First-tier Tribunal (Judge Row) (hereinafter referred to as the “FtTJ”) who dismissed his protection and human rights appeal in a decision promulgated on the 8 October 2019.
3. Permission to appeal that decision was sought and on 29 November 2019 permission was granted by FtTJ Bulpitt. There was delay thereafter as a result of the pandemic and the covid restrictions that were then in place. It was listed for hearing on 2 June 2021.
4. In decision promulgated on the 21 June 2021 I found an error of law in the decision of the FtTJ for the reasons set out in my decision. When the hearing was listed for a resumed hearing, it was adjourned so that a document that had been provided by the appellant and sent to the tribunal could be considered and for a rule 15 (2A) application be made. At that stage, the document had been provided but with no witness statement or explanation as to its relevance. The appeal was then relisted at a time when SMO (2) had been heard and an application for an adjournment on behalf of the respondent was granted in order for the appeal to be heard in light of that decision.
5. The matter comes back before me now to remake the decision.
The background:
6. The appellant is a national of Iraq of Kurdish ethnicity from Kirkuk. The appellant claimed that his parents were killed in 2014 by ISIS as his father would help the peshmerga.
7. The appellant lived with his paternal uncle and on 10 October 2018 his home was occupied by the Popular Mobilisation Force (hereinafter referred to as the “PMF”). The appellant’s uncle told to leave the house as the PMF wanted it given the location opposite a police station. The appellant’s uncle argued with members of the PMF, and he refused to leave. His uncle was killed during this argument. In the alternative he stated that PMF had put “ Shia imams pictures and flags” and the appellant’s uncle did not agree with this and pulled everything down and when he returned to his home his uncle was shot.
8. The appellant went to the home of his uncle’s friend because the PMF were looking for him. He was taken out of the city by car. He left Iraq on 10 October 2018 and travel to Turkey with the help of an agent. He stayed in Turkey in a hotel with friends and travel to unknown countries in the back of a lorry. He travelled to France where he stayed 1 ½ months. The appellant travelled to the UK clandestinely and arrived on 11 December 2018 and claimed asylum the same day.
9. In a decision letter dated 21 August 2019 the respondent refused his claim. It was accepted that he was an Iraqi national of Kurdish ethnicity, but his factual claim was refused. As to his claim that he feared ISIS as they had killed his parents in 2014 and on the basis that his father would give food to the peshmerga, the respondent considered that on his own evidence he had had no issues with ISIS since 2014.
10. As to his fear of the PMF, the respondent considered that the appellant had provided a conflicting account regarding the situation around the PMF occupying the house and his uncle’s death. It was considered that given the situation had led him to leave the country, it was reasonable to expect him to have given a consistent account. The respondent observed that he was given multiple opportunities to explain how he was aware that the PMF were actively looking for him and it was considered that he failed to give a plausible account and he had no confirmation that PMF were looking for him and only assumed this by word-of-mouth in the area.
11. It was further noted at paragraph 48 that he failed to raise his uncle’s death and issues with the PMF during the screening interview.
12. At paragraph 50 – 51 the respondent took account as damaging his credibility his failure to claim asylum in a safe European country having been in France for 1 ½ months (under paragraph 8 (4) of the 2004 Act).
13. As to an assessment of any future fear, it was claimed that on return he feared he would be killed by the PMF however it was not accepted that he had a genuine subject to fear on return to Iraq as his account had not been given consistently. Furthermore, his fear was not objectively well-founded because there was sufficient protection provided by the authorities in Iraq.
14. Based on the CG decisions cited and the CPIN referred to, the respondent stated that the appellant would be able to approach the appropriate agencies and have the assistance needed to have his documentation renewed.
15. It was further asserted that the appellant had failed to establish a sustained and systemic failure of state protection on the part of the authorities in Iraq (see paragraphs 62 – 65). Sufficiency of protection was again set out at paragraph 66 – 71 and that at paragraph 72 it was considered that there was an established police force within Iraq from which he could seek protection if the need arose.
16. The issue of internal relocation was set out at paragraphs 80 – 90 and that noted that his fear was returning to Kirkuk but that he had not expressed a fear of other regions in Iraq. After having cited the 2018 country report on human rights practices: Iraq and the availability of relocation in the context of freedom of movement, the respondent considered that his fear of the PMF and ISI S who were nonstate agents, the appellant had not submitted evidence that either group would be aware that he returned to Iraq or had the ability to locate him. He had no public profile.
17. Thus it was considered if unable to return to his home area of Halabja ( NB this is factually incorrect and should state Kirkuk) he could relocate to Erbil, Sulaymaniyah or Dohuk. This was on the basis that he spoke Kurdish Sorani, he had received some education, he had no health problems which would prevent him from gaining employment in order to support himself and had skills that he could utilise and gain lawful employment. He demonstrated an ability to adapt by attempting to establish a new life in the UK. Furthermore to mitigate any hardship he would be eligible on return to a voluntary payment if he decided to return to Iraq voluntarily. It was reasonable to expect him to return to Halabja ( this should state Kirkuk).
18. His claim was therefore refused.
19. The appeal came before the FtT on 7 October 2019. The issues before the tribunal were clarified by Ms Brakaj as set out at paragraph 3 namely that the appellant was at risk from the PMF in Iraq because of his perceived political opinion. It was also claimed that he did not have his CSID card, and he had no means of obtaining one; the original had been left in Iraq and there was no one there alive who could assist him to obtain one.
20. In respect of the case on behalf of the respondent, it was accepted that the appellant was an Iraqi Kurd and that he was from Kirkuk. It was not accepted that his parents were killed by ISIS in 2014 nor that his uncle was killed by the PMF on 10 October 2018. It was not accepted that he was at risk from anyone in Iraq and that he was either in possession of, or could obtain with help of relatives, his CSID card and he would be able to return to Kirkuk which was in control of the Iraqi government. In the alternative he could relocate to the IKR (see paragraph 16).
21. The factual findings made by the FtTJ are set out at paragraphs 18 – 40. The FtTJ did not find that the appellant had been consistent in his factual account and at [36] the judge found them to be “significant discrepancies in a fundamental part of the appellant’s account.”
22. At [37] the judge also found that the appellant’s credibility was damaged by his failure to claim asylum in a safe country namely France. The judge took into account his claim that he was under the control of an agent who was violent but found that the agent had been paid by on or on behalf of the appellant and whilst the appellant was only 18 years old he was an adult and that is failure to claim asylum damaged his credibility.
23. At [39] the judge found that it was not plausible that the appellant was not in contact with Y who would finance his journey to the UK. The appellant had said the arrangement was that Y will be paid once the appellant arrived in a safe place. The judge found that considerable expense must have incurred and if this were paid by why he would have wanted to know from the appellant that he arrives safely in the United Kingdom.
24. Taking into account those matters, the judge disbelieved the appellant’s account and found that there were aspects of his account which were not “plausible.” The judge found there to be “significant discrepancies in key parts of his account which damages credibility.” The judge found that he was not a “reliable witness as to fact” and did not find that the appellant’s parents were killed by ISI S in 2014 nor that his uncle was killed by the PMF. The judge rejected his account that the PMF threatened the appellant and sought to harm him and found that the appellant chose to leave Iraq and came to the UK for economic reasons ( see paragraphs 40 – 42).
25. As to the issue of documentation, the FtTJ took into account the appellant’s evidence that he did not have possession of the CSID but that the appellant had not established this. The judge found “I have found the appellant to be an unreliable witness as to fact. I find that he is either in possession of it or could obtain possession of it from his family in Iraq. He would be able to obtain a replacement using their assistance “ (at [43]).
26. The FtTJ considered the protection appeal in the light of the country guidance of AA (Iraq) and concluded that the appellant’s home area of Kirkuk was a “contested area.” The judge recorded at [44] that the respondent’s position at the hearing was that there was new evidence that ISI S was no longer in control of Kirkuk and so the appellant could return. The judge recorded “little evidence of current conditions in Kirkuk was put before me. There is nothing in the evidence which would make me depart from the guidance in AA. I do not.”
27. At [45]-[47] the FtTJ the FtTJ addressed the issue of internal relocation. The FtTJ therefore found that the appellant was not at risk of persecution or harm from anyone in Iraq and whilst he could not return to his home area of Kirkuk he could reasonably relocate safely to the IKR, and it would not be unduly harsh on him to do so. The FtTJ dismissed his appeal.
28. In a decision promulgated on 21 June 2021 I set out my reasons for finding an error of law. This decision should be read alongside that decision. The decision was set aside and to be remade in the light of the current CG decision of SMO. The factual findings made by the FtTJ were not challenged in the grounds. Therefore the factual findings of the FtTJ remained as preserved findings as identified at paragraph [65] of the UT’s decision. There has been a Rule 15(2A) application made relying on new documents relevant to past events in Iraq and therefore those documents required consideration in any factual analysis made.
The resumed hearing:
29. The resumed hearing took place on 15 June 2022 by way of a face to face hearing. The appellant was represented by Ms Brakaj, solicitor advocate and the respondent by Ms Young, Senior Presenting Officer.
30. There was no up-to-date bundle on behalf of the appellant, but the tribunal had the previous bundle before the FtT dated September 2019 . The appellant relied upon the Rule 15(2A) application set out in an email dated 19 August 2021 and attached to it entitled “Final report of (Freedom and Human Rights Organisation) to whom it may concern” dated 19/3/2019 and copy face book messages and envelope. There was also a witness statement filed on behalf of the appellant dated 16/8/21.
31. The respondent relied upon the original Home Office bundle which included the screening interview, interview record, the decision of FtTJ Row.
32. The appellant gave evidence in Kurdish Sorani with the assistance of the court interpreter. I am satisfied that there was no difficulty in the appellant understanding the interpreter or vice versa and no problems were identified at the hearing. He adopted his witness statement as his evidence in chief. He was asked if anything had changed since the statement was prepared or of he had any further information from Y, or his parents and the appellant stated “no.”
33. He was asked questions in cross examination by Ms Young. In his evidence he confirmed that he had left his CSID at his uncle’s house. He agreed that he had left Iraq in October 2018 by travelling from Kirkuk to Kurdistan. From Kirkuk he stated he was assisted by a friend of his uncle and the plan was to go to Turkey in a truck. When asked if travelled from Kirkuk to Kurdistan by car, he later stated that he travelled by lorry but was hidden by the“ load.” He said he did not require a CSID to leave Iraq because he was “smuggled.” When it was put to him that a CSID was a document of importance and asked why he had left it in Iraq, the appellant stated “I left it at my uncles; the PMF occupied the house. I do not know what has happened to it.” The question was repeated, and he was asked why he would leave such an important document in Iraq, the appellant stated, “the way I left I did not pass through the checkpoints and leave legally or else I would be arrested by the PMF.” He was asked about the family book, that the appellant stated that he did not know what it family book was and that it was the 1st time he had heard about it. When asked about family relatives on his paternal and maternal side he stated that in relation to his father he had 2 siblings assist and a brother and his mother sighed she had a sister. He said they were all killed by ISIS.
34. As to the Facebook messages, he confirmed that they were messages between his uncle’s friend Y in Iraq and that he was assisted by friend in the UK to write the short messages. He said he established contact with Y one year ago and stated that he knew Y as he was a close friend of his uncles and that when they were together he saw him as well. He was asked about paragraph 2 of the witness statement and where Y had moved to. The appellant stated that he did not know where Y had moved to as he did not tell him due to his life being at risk. He confirmed he last had contact with Y 1½ months ago. He was also asked about paragraph 3 of the witness statement.
35. He was asked some questions and clarification as to where he lived in Kirkuk and identified that the area that he lived in was not a village that was a neighbourhood.
The submissions:
36. At the conclusion of the evidence I heard submissions from the advocates.
37. Ms Young made the following submissions on behalf of the respondent.
38. She submitted that she relied upon the decision letter although it should be read in the light of the preserved findings of fact.
39. When considering the new evidence that the appellant sought rely upon, she submitted that the messages in the translated document did not take the appellant’s case any further even on the lower standard of proof in light of the preserved findings set out at paragraph 69 of the error of law decision which included that the appellant was not at risk of the PMF in his home area and that his uncle had not been killed in the way that was claimed. On behalf of the respondent it was submitted that the credibility findings were not challenged previously and should be undisturbed as preserved findings.
40. Whilst it is likely to be argued on behalf of the appellant that the earlier findings were wrong she submitted that the evidence in the email attachments was not sufficient to undermine the preserved findings in relation to the material facts concerning the appellant’s protection claim.
41. She submitted that all that had been provided were 2 screenshots of messages which do not refer to the letter from the organisation. The messages do not take the case any further.
42. At its highest, it is likely that it will be argued on behalf of the appellant that they show contact between 2 individuals. However there is nothing to support who Mr Y is (the acclaimed author of the messages) and there is one chain of short messages.
43. As to the translated document from the organisation, that document needs to be considered “in the round” and to be viewed with the preserved findings in mind which undermine the contents of the letter. Whilst the letter refers to, he had a nephew naming the appellant, according to the appellant had lost all of his family relatives in 2014. The present finding in relation to this is set out paragraph 69 (3) that the appellant’s parents were not killed by ISIS in 2014.
44. Ms Young submitted that the document was further undermined by paragraph 3 of the most recent witness statement filed by the appellant who referred to “He does not have any contact with any members of my family and could not assist me in locating them.” She submitted that this was clearly at odds with the initial asylum claim where he stated his parents were killed in 2014. It was put to him in re-examination to how those 2 statements matched, and the appellant did not answer that in any satisfactory way. That is because the statements cannot match. Therefore, the preserved findings made that his parents were not killed by ISIS in 2014 should be maintained.
45. She further submitted that the additional evidence was not sufficient to undermine the preserved findings that the appellant was at risk from the PFM or that his uncle was killed by them.
46. When considering the issue of documentation, the previous finding that concerned his CSID is set out at paragraph 69 (5) and that CSID was left at home with his Uncle. Furthermore, that the appellant was in contact with Y who had financed his journey. When looking at those preserved findings, the appellant can obtain possession of his CSID from family members have that sent to him in the UK. The appellant claimed that he has had no contact with his uncle’s friend because he stated he had moved from Kirkuk. However that is not credible, and the material facts found by the FtTJ are not undermined by the additional evidence and therefore the documents can be sent to him in the UK and thus his return is feasible.
47. In summary, the factual findings made should be maintained that the appellant is not at risk in his home area of Kirkuk, which is no longer a contested area and thus he can return.
48. As to SMO(2) the country guidance decision, the sliding scale assessment should be applied (article 15 (c ) ) but the appellant does not fall into any of those enhanced categories therefore there is no article 15 (c ) risk on return to Kirkuk.
49. In the alternative, the appellant can relocate to Kurdistan for the reasons set out in SMO (2) paragraph 26 – 34. The position of the respondent is that it would not be unduly harsh for the appellant to internally relocate within the IKR. The journey from Baghdad to the IKR does not reach article 3 as he is in possession of a CSID, and he can reside there with no legal impediments. It is for the appellant to demonstrate that he cannot obtain the documents and he has not done so.
50. Ms Brakaj made the following submissions. She submitted that there was further evidence relevant to the credibility findings which undermined the FtTJ’s findings on the loss of the appellant’s family, his CSID and risk from the PMF.
51. She submitted that the previous FtTJ did find aspects of his claim to be plausible. For example at paragraph 21, the appellant’s account was consistent with the general background evidence concerning ISIS and at paragraph 22 referred to the lack of a death certificate not to damage his credibility. At paragraph 24 the account given of his escape was not implausible. However from paragraph 30 onwards the appellant’s credibility is put into question and where a number of discrepancies had been noted by the FtTJ.
52. However, the additional new evidence sheds light as to what had happened to Y since the appellant left and he has provided an explanation. The appellant’s evidence was that he was able to resume contact with Y via Facebook and had a friend to assist him therefore it explains the loss of contact. It sets out that he has provided Facebook evidence from Y and whilst the written messages may not explain matters, he obtained information from Facebook to show what had taken place. The documents were sent from Sulaymaniyah which is consistent with the appellant’s account that his friend has kept his location from him.
53. Ms Brakaj submitted the document itself referenced problems that the appellant had faced and that he had been involved in activities which had led him to flee the area. This is an explanation of significance as to why his claim was refused. When looking at the appeal now in the recent witness statement he did not have contact with Y and the subsequent evidence he had given is credible and consistent with the background evidence.
54. She submitted that the Facebook evidence had been verified.
55. In looking at the issue of the family and whether they had died as claimed, the appellant had stated throughout that his parents were killed in 2014 and his uncle in 2018. The appellant does refer to family members, but it is not a matter that he can change. If they have died the friend cannot contact them and therefore the evidence in the witness statement is consistent with his previous evidence that is simply commenting on an issue of contact.
56. Ms Brakaj submitted that when looking at the evidence today the appellant has given consistent evidence with the background evidence. Whilst there are some inconsistencies with his claim the previous findings must be looked at in the light of the most recent evidence.
57. The inconsistencies do not mean that the claim should not be considered credible as a whole.
58. As regards the documents left at his uncle’s house, the appellant had not sought to elaborate or change his evidence on this issue. If it is accepted that he has no documents given that he was forced to flee the area that was consistent with background evidence and then there is no one in the area who can check whether the documents are still available. There is nothing to suggest that the appellant has access to any other information for it to be sent to him from Iraq. Therefore if he has no access to the documents he cannot obtain any replacement. Kirkuk is one of the areas where the INID has been rolled out.
59. As regards article 15 (c ), and the sliding scale analysis, Ms Brakaj submitted that the appellant fell into the category of showing opposition to the government/local security agencies. He says he does not support the PMF and is happy to criticise them.
60. The alternative category is that he has lived in the UK since 2018 and the question is how he would be perceived on return as not conforming with Iraqi culture. That is an individualised circumstance of risk having been away from Iraq since 2018.
61. At the conclusion of the hearing I reserved my decision which I now give. I am grateful to the advocates for their help and assistance.
Discussion:
62. In reaching my assessment, I bear in mind the appellant bears the burden of substantiating the primary facts of his protection claim. The standard is a reasonable degree of likelihood. The burden and standard of proof applies to the factual matters in issue in this appeal. Also that it is for the appellant to establish his claim under Art 3 of the ECHR or under Art 15(b) of the Qualification Directive. In order to do so, he must establish that there are substantial grounds for believing that there is a real risk of serious harm on return.
63. Helpful guidance on the judicial analysis of credibility was provided in KB & AH (credibility-structured approach) Pakistan [2017] UKUT 0049. The Upper Tribunal highlighted the dangers of overly focusing upon matters of plausibility or demeanour, especially where assessments are made about States and cultures unfamiliar to the judge, who will necessarily look at such matters through a UK – cultural lens. Sufficiency of detail, internal and external consistency, and plausibility provide a useful framework (but not a straitjacket) to assess credit ability in the round rather than affixing on a narrow dimension of the case to reach a broad finding of fact.
64. When considering the appellant's general credibility in the context of Paragraph 339 of the Immigration Rules and section 8 of the 2004 Act, I am conscious that section 8 is only an element to be considered in relation to the appellant's credibility and is not determinative.
65. Tanveer Ahmed v SSHD [2002] Imm AR 318 established the following principles in relation to the judicial assessment of documentary evidence:
a) The appellant bears the burden of demonstrating that a document should be relied upon by the tribunal.
b) In reaching findings on the reliability of documentary evidence, the tribunal must consider the document in the context of all the evidence.
c) It is not necessary to conclude that a document is a forgery before finding it to be unreliable.
66. The starting point of my assessment of the appeal are the factual findings made by the FtTJ which were preserved findings in accordance with the error of law decision which are set out at paragraphs [18 – 46] of the FtTJ decision. They can be summarised as follows.
67. The FtTJ found that the appellant had not been consistent in his factual account. In the screening interview the appellant had been asked what he feared in Iraq and at paragraph 4.1 he said he was separated from his family in 2014 when ISIS attacked the area. There was no mention of either of his parents being killed in 2014 nor his uncle being killed by the PMF on 10 October 2018, only 2 months before the interview. The judge took into account the appellant’s explanation that he did mention these matters at the screening interview, but they were not recorded. The judge rejected that explanation stating at [31] there was a large amount of information in the screening interview which came from the appellant and having been asked a specific reasons for his flight from Iraq it would have been expected that he would mention the death of his uncle.
68. At [32] the FtTJ stated that the appellant had given 3 different versions of the death of his uncle on 10 October 2018; the 1st version at questions 20 – 21 of the asylum interview was that the PMF had come to his uncle’s house, they put up pictures of Shia imams and the appellant’s uncle did not agree with them and put them down. They left the house. After return when they went back the PMF shot his uncle. The appellant was outside at that time and had run away. The 2nd version was given a question 68 – 72 that the PMF came to the uncle’s house and told his uncle to leave. There was an argument, his uncle refused to leave and the PMF shot his uncle. The appellant then went out and run away. The judge set out his explanation for the discrepancy at [34] but the FtTJ rejected it as not being a proper explanation. The 3rd version was given a question 76 when the appellant stated that his uncle had been killed partly because he refused to leave the house. The other reason was that he teased the PMF about religion because the PMF had pulled down Iraqi flags and pictures of Shia imams.
69. At [36] the judge found them to be “significant discrepancies in a fundamental part of the appellant’s account.”
70. At [37] the judge also found that the appellant’s credibility was damaged by his failure to claim asylum in a safe country namely France. The judge took into account his claim that he was under the control of an agent who was violent but found that the agent had been paid by on or on behalf of the appellant and whilst the appellant was only 18 years old he was an adult and that is failure to claim asylum damaged his credibility.
71. At [39] the judge found that it was not plausible that the appellant was not in contact with Y who had financed his journey to the UK. The appellant had said the arrangement was that Y would be paid once the appellant arrived in a safe place. The judge found that considerable expense must have incurred and if this were paid by Y he would have wanted to know from the appellant that he had arrived safely in the United Kingdom.
72. Taking into account those matters, the judge disbelieved the appellant’s account and found that there were aspects of his account which were not “plausible.” The judge found there to be “significant discrepancies in key parts of his account which damaged his credibility.” The judge found that he was not a “reliable witness as to fact” and did not find that the appellant’s parents were killed by ISIS in 2014 nor that his uncle was killed by the PMF. The judge rejected his account that the PMF threatened the appellant and sought to harm him and found that the appellant chose to leave Iraq and came to the UK for economic reasons ( see paragraphs 40 – 42).
73. As to the issue of documentation, the FtTJ took into account the appellant’s evidence that he did not have possession of the CSID but that the appellant had not established this. The judge found “I have found the appellant to be an unreliable witness as to fact. I find that he is either in possession of it or could obtain possession of it from his family in Iraq. He would be able to obtain a replacement using their assistance “ (at [43]).
74. The preserved findings were set out at paragraph [69] in the error of law decision as follows:-
(1) the appellant is an Iraqi national of Kurdish ethnicity from Kirkuk.
(2) The appellant is not at risk from the PMF in his home area.
(3) The appellant’s parents were not killed by ISIS in 2014 (paragraph 42)).
(4) The appellant’s uncle was not killed by the PMF (paragraph 42).
(5) The appellant has family members in Iraq who could assist in financially and could obtain possession of his CSID card with the assistance of his family (paragraph 46).
(6) He has relatives who were able to finance a trip from Iraq to the United Kingdom which must have been at some expense ( paragraph 46).
(7) The appellant is in contact with Y who financed his journey (paragraph 39).
(8) He failed to claim asylum whilst in France (s8(4) of the 2004 Act applying ).
75. Whilst the grounds of challenge against the FtTJ’s decision did not challenge the factual findings made and as set out above, Ms Brakaj seeks to re-open the factual findings on the basis of further evidence that the appellant has provided.
76. That evidence is contained in two documents. An email was sent to the Tribunal on the 23 April 2021 stating, “ please find attached further evidence which has been sent to our client and which we have obtained translations for”. Attached to the email was a document dated 19/3/2019 which was said to emanate from an organisation in Kurdistan. The email did not provided any further information about the document.
77. On the 19 August 2021, a further email was sent stating “ please find attached further evidence in the above matter and we notify the wish to make an application to submit such documentation under rule 15 (2A) of the Upper Tribunal procedure rules submit such evidence. The email set out the evidence went to an issue in the appeal namely the risk to the appellant if he were to return and referred to the envelope, the translation of Facebook messages and the document provided.
78. Thus the appellant seeks to rely upon that fresh evidence to demonstrate that the factual findings were in error and that he is at risk of harm in his home area of Kirkuk from the PMF and that as a consequence he cannot obtain his CSID or any equivalent documentation to enable him to return to Iraq or to relocate to the IKR.
79. The appellant has given oral evidence about that documentation and has been cross-examined about his account. I have therefore considered the documents “in the round” and in accordance with the guidance given in Tanveer Ahmed concerning the reliability of the document.
80. When assessing the contents of the document, I find that the account given by the person making the statement is not consistent with the account of the appellant. It identifies a particular group by name whom it is claimed targeted him and that it was because he was “cooperating with his comrade whose house they later attacked and killed ”. The description given about the appellant was that he was “previously active against them such as ridiculing their victories and setting fire to the flag.” The letter names “ Hashad -Al Shaabi” as the particular group the appellant is at risk from. Nowhere in the appellant’s account does he refer to that particular militia or group and has only referred to the group he claims to fear as the “PMF.” If the appellant had been previously acting against the group identified as Hashad -Al Shaabi it is reasonably likely that he would have identified the group correctly by name when giving his previous account either in interview or in his evidence before the FtTJ.
81. I accept the submission made by Ms Young that the content of the document does not undermine the factual findings made by the FtTJ. Whilst Ms Brakaj points to the part of the document which says, “I was cooperating with my comrades whose house they later attacked and killed him” (assuming comrade is being used to identify the appellant’s uncle), the document can provide no explanation as to why the appellant was unable to give a consistent and coherent account of the events that he claimed led to the death of his uncle. They are set out at paragraph [32] of the FtTJ’s decision where the appellant given 3 different versions of the death of his uncle. The judge found them to be “significant discrepancies to a fundamental part of the appellant’s account.” The document provides no detail as to the events that is claimed to have taken place and does not explain why the appellant was unable to give a coherent and consistent account of what was the only core event.
82. Whilst the document refers the appellant having lost all family relatives in 2014, I accept the submission that the letter has to be viewed in the context of the previous account given by the appellant and the plain inconsistencies in his evidence. The FtTJ found as a fact that in the screening interview (4.10 he did not say either that his parents were killed or that his uncle had died in 2018 which was 2 months before the substantive interview. However the judge took into account the appellant’s explanation that he did mention this at the screening interview but for the reasons given in her decision Judge Row rejected that explanation at [31] having found that there was a large amount of information in the SI which had come from the appellant. The document therefore does not undermine that factual finding account on that point either.
83. Further his evidence at the hearing was equally inconsistent concerning family members. The appellant filed a witness statement for the hearing which detailed his discussions with Y whom he stated had sent the documents. At paragraph 3 it stated, “He (referring to Y) does not have any contact with any members of my family and could not assist me in locating them.” In cross-examination that sentence was read to him, and he was asked “what family members were you referring to? The appellant’s answer was “I only have my parents which I have lost I do not know the whereabouts. I am looking to locate them, especially my mother.” It was put to him in cross-examination that he claimed that his parents died in 2014. The appellant stated, “yes I did mention that.” Directly after that question Ms Brakaj sought to clarify this in re-examination asking him how the 2 statements matched (his parents were killed but he would like to locate them and be reunited with them) the appellant stated “they are different” but said that when he arrived he said his parents were dead.
84. I do not accept the submission made by Ms Brakaj and her explanation of that evidence which was that the death of his parents was not a matter that he was able to change and therefore his friend cannot contact them. I prefer the submission made by Ms Young that his evidence in the written statement is not consistent with the account given to the FtTJ that all his relatives have died. If that were so, there would be no need to explain that his friend Y did not have contact with any members of the appellant’s family and could not assist in helping him locate them. Furthermore even if he was referring to other family members and not his parents, this is inconsistent with the oral evidence at the hearing where he stated in cross-examination that all of his other relatives had been killed (uncles and aunts on his parents side). It is of significance that the account given by the appellant in the screening interview (which the FtTJ referred to previously was that his parents were missing) is more consistent with the written evidence in the witness statement and demonstrates further that the appellant has not given consistent evidence before the FtTJ or the UT on this issue.
85. Other issues concerning the reliability of the document were identified by Ms Young. The Facebook exchanges consist of a short number of messages. None of them show any link to who sent them or identifies that they were even from Y. No other Facebook evidence or discussions has been provided.
86. Similarly there is no evidence as to who the Freedom and Human Rights Organisation are to support the provenance of the documents and its contents. In particular, there is no support provided in the document itself to identify how the information has been verified (see the 2nd half) where it is stated “we contacted several bodies and authorities in the area who confirm the occurrence of these events.” The bodies and authorities are not named.
87. When assessing the reliability of the document, it is further submitted that the appellant’s general credibility is of relevance. There were areas of his oral evidence which was not consistent with background evidence. An example related to the CSID and why left he left it at his Uncle’s home. The appellant was asked the same question on 2 occasions as to why he had left his CSID at his uncle’s home in the light of the background evidence which describes that document as one which is central to life in Iraq. The appellant did not provide any satisfactory answer. He first said, “I left it at my uncle’s house, the PMF occupied the house.” When the question was asked again he said, “the way I left, I did not pass through the checkpoints and leave legally or else I would be arrested by the PMF.” The importance of the CSID is set out in the CG decisions and in SMO (2) at paragraph 79. The appellant failed to give any satisfactory explanation and that affects his credibility.
88. The appellant was also asked about the family book. The importance of this is set out in SMO (2) at paragraph 68 – 85. Whilst it may be necessary to consider a fact sensitive analysis about the contents of the family book, when the appellant was cross examined he stated that he had never heard of family book. The appellant was not stating that he could not remember what was in it but that he had never heard of anything called a family book.
89. Drawing is matters together and having considered the documents “in the round” and in the context of the evidence as a whole including the evidence given before the FtTJ, for the reasons set out above I accept the submission made by Ms Young that the documents are not reliable documents upon which I can attach weight to given the lack of provenance, the inconsistency of the contents and that the documents do not provide any explanation for the lack of consistency in the appellant’s evidence given before the FtTJ and set out at paragraph [32] of her decision.
90. It follows it as a consequence the factual findings of the FtTJ are maintained and they form the basis of the assessment undertaken by reference to the CG decisions.
91. The FtTJ found as a fact that the appellant’s CSID was at his uncle’s home and in his oral evidence he confirmed that that was where the document was. The FtTJ also found that the appellant was not credible about having lost contact with Y for the reasons that the FtTJ gave. The appellant states that he has been in contact with Y, and he last had contact within 1 ½ months ago. The appellant’s account that he does not know where Y is lacks credibility. It is not reasonably likely that having had regular contact with him that he would not know where he was. No explanation was given as to why would be at risk by talking to the appellant about this. In any event the appellant has received communication from Sulamaniyah which is in the IKR. It is therefore reasonably likely that Y is in the IKR which is consistent with the document emanating from there and there is no reason why the appellant cannot continue to maintain contact with Y.
92. When applying the facts as found by the FtTJ, the appellant has not demonstrated to the lower standard that there is a reasonable likelihood he would be at risk of harm from the PFM ( either on account of a Convention reason of imputed political opinion or serious harm on article 3 grounds.)
Article 15( c):
93. I am required to consider the circumstances of the appellant’s home area, Kirkuk, at the date of the hearing. The current CG decision is SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 001100 (IAC). It replaces all existing country guidance although in respect of the issue of whether the situation in certain parts of the country was such that the return of the individual there would expose the person to a risk contrary to Article 15 (c ) of the Qualification Directive, the Upper Tribunal had concluded in its earlier CG decision of SMO & KSP (Identity documents) Iraq CG [2019] UKUT 400 that the situation did not generally give rise to such a risk although a fact specific “ sliding -scale” assessment was necessary in all cases. In the hearing for the later CG decision it is recorded that in 2022 it was not suggested by either party that there should be any further consideration of the Upper Tribunal’s conclusions regarding Article 15 (c ) of the Qualification Directive ( see paragraph [7]). Thus the guidance given is the same as it was previously and is recorded at headnote A as follows:
A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE
1. There continues to be an internal armed conflict in certain parts of Iraq, involving government forces, various militia and the remnants of ISIL. Following the military defeat of ISIL at the end of 2017 and the resulting reduction in levels of direct and indirect violence, however, the intensity of that conflict is not such that, as a general matter, there are substantial grounds for believing that any civilian returned to Iraq, 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) QD.
2. The only exception to the general conclusion above is in respect of the small mountainous area north of Baiji in Salah al-Din, which is marked on the map at Annex D. ISIL continues to exercise doctrinal control over that area and the risk of indiscriminate violence there is such as to engage Article 15(c) as a general matter.
3. The situation in the Formerly Contested Areas (the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-Din) is complex, encompassing ethnic, political and humanitarian issues which differ by region. Whether the return of an individual to such an area would be contrary to Article 15(c) requires a fact-sensitive, “sliding scale” assessment to which the following matters are relevant.
4. Those with an actual or perceived association with ISIL are likely to be at enhanced risk throughout Iraq. In those areas in which ISIL retains an active presence, those who have a current personal association with local or national government, or the security apparatus are likely to be at enhanced risk.
5. The impact of any of the personal characteristics listed immediately below must be carefully assessed against the situation in the area to which return is contemplated, with particular reference to the extent of ongoing ISIL activity and the behaviour of the security actors in control of that area. Within the framework of such an analysis, the other personal characteristics which are capable of being relevant, individually and cumulatively, to the sliding scale analysis required by Article 15(c) are as follows:
Opposition to or criticism of the GOI, the KRG or local security actors.
Membership of a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area.
LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals.
Humanitarian or medical staff and those associated with Western organisations or security forces.
Women and children without genuine family support; and
Individuals with disabilities.
6. The living conditions in Iraq as a whole, including the Formerly Contested Areas, are unlikely to give rise to a breach of Article 3 ECHR or (therefore) to necessitate subsidiary protection under Article 15(b) QD. Where it is asserted that return to a particular part of Iraq would give rise to such a breach, however, it is to be recalled that the minimum level of severity required is relative, according to the personal circumstances of the individual concerned. Any such circumstances require individualised assessment in the context of the conditions of the area in question.
94. Turning to the question of Article 15(c), the position relating to Kirkuk is set out at paragraphs 251-261 of SMO (1). Ms Brakaj did not seek to challenge that assessment by the provision of further country materials. Nor did she refer the tribunal to any country materials concerning the appellant’s home area.
95. Ms Brakaj submits that the appellant falls within one of the enhanced risk categories identified by the Upper Tribunal.
96. The basis upon which it is said that the appellant is at risk in his home area of Kirkuk is that he falls within the enhanced risk category set out at paragraph 5 (i) and that he has shown opposition to or criticism of the GOI, the KRG or local security actors.
97. The decision in SMO (1) at paragraph 299 sets out that those who are perceived to be opposed to the KRG may be at an enhanced risk on return to the territory controlled by those bodies. While the Tribunal did not give a detailed analysis of this in SMO the Tribunal referred to credible reports of journalists critical of the KRG encountering difficulties. There is no evidence that the appellant has been critical of the KRG in that way.
98. In light of the factual assessment made of the appellant’s account, he has not demonstrated to the lower standard that he is at risk of harm from the PMF as a result of having criticised them or otherwise would be perceived to have done so.
99. Whilst Ms Brakaj also sought to argue that the appellant had been shown in Iraq to have shown opposition by burning flags and he is committed to this and will be at risk on return, no evidence has been advanced on the appellant’s behalf to show any opposition to the government or any local security actors. His account has not been found credible or consistent as to his history in Kirkuk or the reasons he gave for leaving his home area. There has also been no up to date evidence either in his witness statement or given in oral evidence that he has taken part in any anti-government protests or any protests against any local security forces since leaving Iraq. He has therefore not made out his case in this respect either.
100. Ms Brakaj also relied upon paragraph 5 (iii) that he falls into the category of those not conforming to Islamic mores and wealthy or westernised individuals.
101. I have not been referred to the decision of YMKA & Others (westernisation) Iraq [2022] UKUT16. This is not a country guidance decision, but it is a reported decision. I would accept that issues such as westernisation or not conforming to Islamic mores or being wealthy may be relevant characteristics. As noted in that decision the term “westernised individual” is not explained by the UT in SMO (1), but reference is made to those not conforming to Conservative Arab dress codes. When looking at the factual circumstances of the appeals in YMKA the appellants there provided witness statements and evidence with reference to their westernised lifestyles (see paragraph 27). The circumstances of A4 that she was committed to feminism and LGBTQI + rights and in respect of A1-3 they were described as atheists and reference was made to the aspects of their beliefs (at paragraph 39). The claims succeeded based on the factual descriptions given in light of the background evidence.
102. There is no basis advanced on behalf of the appellant as to how he falls into this category. His witness statements both in 2019 and that filed in 2021 provides no evidence as to how or in what circumstances he does not conform to Islamic mores. Nor does he set out any evidence as to how or in what way or circumstances he has adopted a westernised way of life. He gave no oral evidence about this, and no evidence was advanced on his behalf on this basis. The only time this featured in the appeal was when Ms Brakaj raised it in her oral submissions and on the basis that he had been absent from Iraq since 2018. Whilst that is the factual position, that without more does not demonstrate that the appellant falls within paragraph 5(iii). It requires a proper evidential basis and that is lacking in this appeal. It is a speculative submission which is not based on any evidence particular to this appellant.
103. Consequently he has not shown that he can succeed on protection grounds or under Article 15 (c).
104. I now turn to the assessment under Article 3 of the ECHR. As reflected at paragraph 317 of SMO (1) and also in SMO(2) headnote C 11 ( the amended section C), the respondent’s position is that person returning to Iraq without either family connections able to assist him, or the means to obtain a CSID may be at risk of enduring conditions contrary to Article 3 of the ECHR.
105. The Tribunal concluded in SMO(2) that the position for a healthy, documented male returnee to their place of origin in the formerly contested areas, does not cross the threshold for a breach of Article 3. The appellant does not fall within the categories of enhanced risk for the reasons set out above.
106. The issue surrounding the documents required to return to Iraq and to survive in that country have played a prominent part in the country guidance cases thus far decided. Those documents are referred to as the Civil Status Identity Card (“CSID”), the Iraqi Nationality Certificate (INC) and the public distribution system (“PDS”) card/ food ration card and the new digital identification document known as Iraqi National Identity Document (“INID).” Reference is also made to the 1957 Registration Document ( see paragraphs 115 -137 of SMO(2)).
107. The importance of the CSID was set out in the previous CG decisions as it is required to access financial assistance, employment, education and housing etc. it was described as an “essential document for life in Iraq” (at [39] AA (Iraq) [2017]).
108. It has been emphasised in the previous country guidance decisions that an intensely fact sensitive enquiry is necessary as to whether an individual would be able to obtain a replacement CSID and the possession of other documents and the location of the civil registry office and the availability of other male family relatives were all relevant considerations.
109. On the facts of this appeal it is not necessary to consider whether the appellant requires a replacement CSID as on the factual findings made by the previous FtTJ which have not been undermined by the new evidence is that the appellant’s CSID is in Kirkuk at the home of his Uncle who is not deceased. I accept the submission made by Ms Young that as the appellant has been found to have a CSID and that it is at the home of his uncle, it is not necessary to consider whether the appellant is required to obtain a replacement CSID. The appellant will be able to contact his uncle whether or not with the assistance of Y to obtain his document. As set out in SMO (2) being in possession of a CSID, the appellant will be able to return to Iraq. It I has therefore not been demonstrated that the appellant will be at risk of ill-treatment on article 3 grounds or serious harm contrary to article 15 (b ) on that basis.
110. In the alternative, I have further considered the issue of internal relocation in light of the factual circumstances found by the FtTJ and the evidence. Even if at the date of the hearing before the FtTJ Kirkuk was a contested area the issue of internal relocation arises.
111. SMO (2) sets out in the headnote at E the circumstances of the Iraqi Kurdish Region (“IKR”). As set out at paragraph 27-30, for an Iraqi national returnee of Kurdish origin in possession of a valid CSID the journey from Baghdad to the IKR ( or if returned to the IKR directly) is affordable and practical and can be made without a real risk of suffering persecution, serious harm or article 3 ill-treatment nor would any difficulties on the journey make relocation unduly harsh. By reference to paragraph 30, there are no sponsorship requirements for entry or residence to any of the 3 IKR governorates for Kurds. When considering paragraph 31 whether he would be at particular risk of ill-treatment during the security screening process, that is assessed on a case-by-case basis. The appellant does not fall within (i) as there is no evidence that his family has any known association with ISIL. Whilst he is from Kirkuk, he is able to evidence the fact of a recent arrival from the UK which will dispel any suggestion of having arrived directly from ISIL territory. The appellant is a single male of fighting age, but it is not suggested that that on its own would be a risk factor to attain the minimum level of severity.
112. When assessing paragraph 32, family members living in the IKR would require the family to accommodate P (the returnee). The appellant did not give credible evidence before the FtTJ as to the whereabouts and location of family relatives. Similarly before the UT. However even taking his evidence on the basis that he has no family members in the IKR, the appellant maintains contact with Y who is likely to be in the IKR based on the appellant’s own evidence. There is no credible reason as to why he cannot find out Y’s location should he wish to do so for the reasons given.
113. When considering paragraph 33 of SMO (2), the appellant can speak Kurdish Sorani and is of Kurdish ethnicity. He is of the Sunni religion. In terms of his health, it has not been said that he has any health issues and is a young man. Whilst he has had limited education and employment history, and whilst unskilled workers are at a disadvantage, he has a CSID which can be used to obtain employment. Under paragraph 33 (iv) he would have the ability to apply for a grant as set out there and also under that section would be able to rely upon remittances/assistance from his uncle. As he has maintained contact with Y, who is in the IKR, he would also be able to obtain accommodation and assistance from him.
114. Drawing together those matters, it is not demonstrated that it would be unduly harsh or unreasonable for the appellant to relocate to the IKR.
Decision:
The decision of the First-tier Tribunal involved the making of an error on a point of law and the decision is set aside; the appeal is to be remade as follows:
The appeal is dismissed.
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or his family members. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.


Signed
Date: 12/7/22
Upper Tribunal Judge Reeds