Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08830/2016

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On 9 February 2018
On 30 April 2018

Before

UPPER TRIBUNAL JUDGE LANE

Between

AA
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Miss Patel, instructed by Howells Solicitors
For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, AA, was born in 2001 and is a male citizen if Iraq. By a decision dated 4 July 2017, I found that the First-tier Tribunal had erred in law such that its decision fell to be set aside. My reasons for reaching that decision were as follows:
"1. The appellant, AA, was born on 1 January 2001 and is a male citizen of Iraq. By a decision dated 5 August 2016, the respondent refused the appellant asylum but, as he was at the time an unaccompanied minor and there existed inadequate reception arrangements available for him in Iraq, she gave him discretionary leave to remain. The appellant appealed against the refusal of asylum to the first-tier Tribunal (Judge Cox) which, in a decision which was promulgated on 30 January 2017, dismissed the appeal. The appellant now appeals, with permission, to the Upper Tribunal.
2. The judge's dismissal of the appellant's appeal turned on his finding that the appellant would not be at risk of indiscriminate violence in his home area of Iraq. At [48], the judge wrote:
On the other hand, the appellant's Counsel submitted that just because the appellant's home area falls within the governorate of Erbil does not mean that the area is safe. He submitted that what areas fall within an internal armed conflict is not always clear. I agree that the situation in Iraq is fluid. However I am in no doubt that at present there is a concerted effort to push Isis/Daesh out of Iraq generally and particularly Mosul. I have accepted that the appellant's village lies quite close to Mosul. Accordingly I am prepared to accept, on the lower standard, that the appellant's home village is presently within an area subject to an internal armed conflict.
3. However, the judge went on [49] to find that the appellant had not provided satisfactory evidence to show that the level of indiscriminate violence within his home area (in contrast to Mosul) reaches the Article 15(c) threshold.
4. The appellant claims to have lived in Baqrta village which is in the Qarach sub-district of Erbil Province lying some 28 kilometres south of Erbil itself. I find that the judge was right to note that the situation in Iraq is particularly fluid at the present time (as Iraqi forces seek to drive out Isis/Daesh from the country). However, I agree with Mr Tettey that the judge has not given any clear reason for concluding that the appellant would not face the risk of indiscriminate violence in his home village/area; the appellant's village lies within Erbil Province but is close if not within an area of Iraq which constitutes the battleground between Iraqi and Isis/Daesh forces. The judge has, in effect, provided only a bare assertion that the appellant would not be at risk whilst the location of his home area and its proximity to ongoing conflict would seem to require a reasoned and nuanced analysis. The judge has also failed to take into account the appellant's Kurdish ethnicity and to examine in any detail the extent to which he would (or would not) be likely to be assisted by family members or others in obtaining the necessary documentation either to travel within Iraq or to access services there. I am satisfied that the appellant's asylum appeal has been properly determined by Judge Cox; the only issue requiring further consideration at a resumed hearing by the Upper Tribunal relates to Article 15(c). Current country guidance is contained in the decision of AA (Article 15(c) CG Iraq [2015] UKUT 0054 (IAC)). That case I understand at the present time is subject to an appeal before the Court of Appeal. It is for that reason that I will not list the matter for a resumed hearing before me at Bradford before 1 September 2017. Both parties may file at the Upper Tribunal and serve on each other further evidence relating to the remaining issue in dispute no less than ten days prior to the resumed hearing.
Notice of Decision
The decision of the First-tier Tribunal which was promulgated on 30 January 2017 is set aside. The findings as regard the asylum appeal are preserved. The Upper Tribunal will consider the matter further on the limited issue of risk to the appellant of indiscriminate violence (Article 15(c)) at a resumed hearing before Upper Tribunal Judge Clive Lane on a date to be fixed after 1 September 2017.
DIRECTIONS
1. The parties may file at the Upper Tribunal and serve upon each other any evidence upon which they wish to rely as to the issue of indiscriminate violence in Iraq no less than 10 days prior to the date of the resumed hearing.
2. The court will provide a Kurdish Sorani interpreter for the resumed hearing.
3. Time estimate: 2 hours.
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 any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings."
2. At the resumed hearing at Bradford on 9 February 2018, the focus was upon the whereabouts in Iraq of Makhmur, the Kurdish village which, for the purpose of the humanitarian protection analysis, is the appellant's home area of Iraq. For the resumed hearing, the appellant has adduced some additional evidence regarding the whereabouts of the village. I see from the entry on Wikipedia that Makhmur is in "Ninawa Governate in Northern Iraq." The village is described to be in a district which is "disputed territory, in between Erbil and Ninawa Governates." It appears that Makhmur was captured by the Iraqi Army from Peshmerga (Kurdish forces) in October 2017. The town had, in 2014, been in the possession of ISIL militants before being recaptured by the Kurdistan Workers Party.
3. Unfortunately, the evidence produced has not conclusively determined whether Makhmur is in that part of Iraq controlled by the Iraqi government in Baghdad or lies within the IKR (Independent Kurdish Region) which is governed from Erbil. It may be the case that the very question is not capable of a definitive answer. That is because the area remains disputed between a number of forces. By the date of the resumed hearing, it appears that ISIS has been expelled from the area but conflict remains between Peshmerga Kurdish Forces and the forces of the Iraqi government. I have been shown an internet news item indicating that, as recently as December 2017, there was a build-up of Iraqi forces near Makhmur. The report quotes the Kurdistan Region Security Council as having said, "We are alarmed by significant Iraqi military build-up in the vicinity of Makhmur south-west of Erbil in preparation for an attack on nearby Peshmerga position." Whether there is anything that could properly be described as a border within Iraq between the IKR and that area controlled by the Iraqi forces or, indeed, whether anyone at the present time is able to determine where the authority of either of those competing powers ends and the other begins is simply uncertain. What is clear is that the home village of this appellant remains hotly contested between violent opposing forces. In those circumstances, I find that there was no reliable evidence which shows that it would be safe for the appellant to return to his home area of Makhmur. I am aware that my finding conflicts with the view of the Secretary of State expressed in the refusal letter at [19]. The Secretary of State considered that Makhmur fell within Kurdistan (i.e. the IKR). Whether that ultimately proves to be the case, it would, in my opinion, be wrong to assume that everywhere within the IKR, including those areas on the borders of the region, are safe and free from conflict. On the evidence, I find that this appellant cannot return to his home area of Iraq.
4. Mr Diwnycz, for the respondent, did not seek to argue that, should the appellant be required to exercise internal flight within Iraq, it would be not unduly harsh to expect him to do so. The appellant would be returned to Baghdad (there are no international flights to the IKR at the present time). As a young and (as the recent medical evidence adduced shows, vulnerable) Kurdish Iraqi male who has been separated from his family in Iraq, this appellant would be at risk in Baghdad, even if he were to remain there for a relatively short period of time. There is no evidence to show that he would be able to take a flight from Baghdad to Erbil given that he does not have the necessary documents whilst travel overland from Baghdad to Erbil would be excessively hazardous.
5. In the light of the findings which I have made above, I find that the appellant's appeal on humanitarian protection grounds should be allowed.
Notice of Decision
6. This appeal is allowed on humanitarian protection grounds.

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 any member of their family. 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 20 APRIL 2018

Upper Tribunal Judge Lane

TO THE RESPONDENT
FEE AWARD

No fee is paid or payable and therefore there can be no fee award.

Signed Date 20 APRIL 2018

Upper Tribunal Judge Lane