Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08682/2018

THE IMMIGRATION ACTS

Heard at FIELD HOUSE
Decision & Reasons Promulgated
On 1st March 2019
On 19th March 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE G A BLACK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

MR B R H
(ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Mr S Walker (Home Office Presenting Officer)
For the Respondent: Mr E Wilford (Counsel)

ERROR OF LAW DECISION AND REASONS

1. This is an error of law hearing. The Secretary of State is the appellant in this matter. He appeals against the decision of the First-tier Tribunal (Judge I Howard) (F-tT) promulgated on 19th December 2018 in which the Claimant's appeal on protection grounds was allowed.

Background

2. The Claimant is a citizen of Iraq and a Sunni Muslim Kurd from Barika, Sulaymaniyah in IKR. He claimed asylum on the grounds that he faced a risk of persecution following a blood feud.

3. The F-tT found that the Claimant's core account was not credible but allowed the appeal on "asylum and human rights grounds under Article 3". The F-tT concluded that the Claimant would not be able to return safely to his home area from Baghdad and that he would not be able to obtain a CSID.

Grounds of appeal
4. In grounds of appeal the SSHD argued that the F-tT erred by failing to give adequate reasons for allowing the appeal on asylum grounds given that it found the core claim to be without merit.

5. The F-tT failed to take into account that the Claimant had relatives in Iraq who could assist him to obtain a CSID [23-26]. The finding that he had no male relatives was speculative [26] given that on the evidence it was more likely that he did have male relatives.

6. The F-tT made contradictory findings as to the process of obtaining of a CSID [26 &32] - on the one had it was straightforward and the delay minimal and on the other the F-tT concluded that the Claimant would not be able to survive [34-41].

7. The F-tT failed to consider alternative processes for obtaining a CSID following AA Iraq 2915 (revised in 2017).

8. The F-tT failed to consider that there was a viable relocation alternative to IKR as direct flights had resumed to Erbil, and Kirkuk was no longer a contested area (as per the CPIN 2017 & 2018 and AAH (Iraqi Kurds- internal relocation) Iraq CG UKUT 00212 (IAC).

Permission to appeal

9. Permission to appeal to the Upper Tribunal (UT) was granted by FTJ L Murray on 23rd January 2019. In granting permission the FTJ considered that it was arguable that the F-tT erred in making findings that misapprehended the fact that flights had resumed to Erbil and Sulamaniyah .

Submissions

10. At the hearing before me Mr Walker relied on the grounds of appeal. He did not produce a copy of the CPIN for either 2017 or 2018 nor any of the relevant CG case law. I made a direction for that material to be produced within 7 days. Mr Walker submitted that it had always been the case that the Claimant could return by direct flight to Erbil and he had a male relative who could help with the travel documents.

11. In response Mr Wilford for the Claimant produced and relied on a document entitled "Speaking Note", which had been prepared from the grant of permission as the Claimant had not been provided with the grounds of appeal. I provided Mr Wilford with a copy of the grounds of appeal. Mr Wilford submitted that whatever the situation, the Claimant would need documents for return to IKR otherwise it would be via Baghdad. The F-tT found that there were no male relatives to assist. The F-tT adopted the findings made by the previous Tribunal in 2012 including that it was disbelieved that that Claimant's father was dead. In applying AA and AAH the F-tT considered the question of harshness in Baghdad and concluded that the Claimant qualified for humanitarian protection. The critical finding was whether or not the F-tT erred in law as to the existence of male relatives to facilitate documentation for travel.

Discussion and conclusion

12. I am satisfied that the F-tT erred in its assessment of the evidence as to the return of the Claimant to IKR. The F-tT clearly disbelieved the Claimant's core account that he was involved on a blood feud and concluded that he faced no risk on return. The concluding decision made by the F-tT allowing the appeal on asylum (my underlining) must have been an error.

13. In reading the decision it seems that the F-tT intended to allow the appeal on humanitarian protection grounds by concluding that he would face harshness in Baghdad where he would necessarily have to return to in order to obtain the travel documents.

14. The SSHD submits that the F-tT erred in finding that the existence of male relatives was speculative and that in any event the Claimant could return by direct flight to Erbil.

15. The F-tT adopted the findings made by the previous Tribunal in 2012 which disbelieved the Claimant's evidence that his father was dead. There was no more evidence on this issue before the F-tT. Accordingly I take the view that the F-tT erred by concluding that it was more likely than not that the Claimant had no male relatives who could assist him to obtain travel documents. The F-tT found that the Claimant had contact with at least one male person. These findings ought to have informed the F-tT's evaluation of the objective evidence and CG case law as to the feasibility of return to IKR and in that regard taken into account that direct flights were available to Erbil in KRI which was not a contested area.

16. There is a material error of law in the decision which shall be set aside. The SSHD's appeal is allowed.

Re making

17. I go on to remake the decision. It is accepted that the Claimant did not have a CSID nor a valid passport or Laissez Passer. There is a previous finding that the Claimant was not believed that his father was dead (Devaseelan*) which was adopted by the F-tT stands. I find that there is a likelihood that his father remains available to help him on return to Iraq or to assist with the provision of information or documents so as to obtain a CSID. In addition I find that he is in contact with another male person in Iraq who could also assist him. Following the current guidance the Claimant would be in a position to obtain travel documents and thereafter to get a direct flight to Erbil. The UT in AA concluded that "For those without a passport, or who are unable to produce the relevant family registration details, a power of attorney can be provided to someone in Iraq who can thereafter undertake the process of obtaining the CSID for such a person from the Civil Status Affairs Office in their home governorate" (para 177). The UT in AAH found that there were international flights to the Kurdistan region (KRI) and that former residents who return voluntarily and can obtain travel documents and can return to the KRI without having to transit to Baghdad. Both AA and AAH agree that in order to facilitate the obtaining of travel documents contact with male relatives are required. I am satisfied that a return to Erbil is feasible with travel documents, the appellant that he had previously lived in Erbil and has contact and family who could assist him. This position is confirmed in the current CPIN at 2.7.2 and 2.7.7.; the government of Iraq has lifted the ban on international flights to the KRI and former residents of the KRI with travel documents can return to Erbil or Sulamaiyah without having to transit Baghdad.

Decision

18. I remake the decision by substituting a decision to dismiss the Claimant's protection appeal.

Signed Date 14.3.2019

GA Black
Deputy Judge of the Upper Tribunal

ANONYMITY ORDER
NO FEE AWARD

Signed Date 14.3.2019

GA Black
Deputy Judge of the Upper Tribunal