PA/08941/2019

• Status of case: Unreported
• Hearing date: 3 Aug 2022
• Promulgation date: 18 Aug 2022
• Publication date: 18 Jul 2024
• Last updated on: 18 Jul 2024

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/08941/2019


THE IMMIGRATION ACTS


Heard at Bradford IAC
Decision & Reasons Promulgated
On the 3 August 2022
On the 18 August 2022


Before

UPPER TRIBUNAL JUDGE REEDS

Between

m k
(ANONYMITY DIRECTION MADE)
Appellant
AND

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Ahmad, of behalf of Hanson Law Ltd
For the Respondent: Mr McVeety, Senior Presenting Officer


DECISION AND REASONS

Introduction:
I make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008 as the proceedings relate to the circumstances of a protection claim. 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.

The background:
1. The appellant is a national of Iraq. His immigration history is set out in the decision letter, the decision of Judge Meyler, FtTJ Holt and the papers before the tribunal. It can be summarised as follows.
2. The appellant arrived in the UK in January 2008 claiming to be an unaccompanied minor and claiming to be from Iran. An age assessment found that he was over 18. It was also found that the appellant was not from Iran but was from was Iraq.
3. His asylum application was refused on 27th February 2008 and the appellant took an assisted voluntary return back to Erbil in Iraq on 16 April 2008.
4. The appellant then re-entered the UK clandestinely on 28 November 2016, travelling from Iraq to Turkey then to Greece, Germany, and France before arriving in the UK where he claimed asylum for a second time and was interviewed on 5 April 2017. His claim was refused on 22 August 2017.
5. He appealed that decision and, in a determination, promulgated on 22 February 2018 (FtTJ Meyler) his appeal was dismissed and he became “appeal rights exhausted” on 9 March 2018.
6. He lodged further submissions which led to further decision to refuse protection human rights claim on the 22 August 2019.
7. In a decision letter of 22 August 2019, the respondent refused his protection claim. The basis of his claim was advanced on to grounds namely his religion (having converted to Christianity) and his membership of a particular social group namely being a potential victim of honour violence in Iraq.
8. In the light of the documentary and supporting evidence, the respondent accepted that he was an Iraqi national of Kurdish ethnicity. The respondent began her consideration by setting out the factual findings made by Judge Meyler in 2018 in relation to the claimed marriage and threat from the family and the arrest warrant, and the evidence relating to the genuineness of his conversion to Christianity and the rejection of the Facebook account at paragraphs 12 – 14. Further consideration was given to the evidence submitted by the appellant, but it was concluded that he failed to show he shared his faith with others and that in relation to his Facebook posts, he failed to provide evidence that anyone in Iraq would be aware of his online activities. Further consideration was given to the circumstances and return to Iraq by reference to the country guidance decision in AA (Iraq) and AAH (Iraq), but it was concluded that he would not be at risk on return to his home area or in the alternative could internally relocate and that he would be able to obtain the relevant documentation to assist in that return.
9. Consequently, his claim was refused on protection and human rights grounds.
10. The appellant appealed that decision, and it came before the FtT (Judge Holt) on 29 October 2020. In a decision promulgated on 25 November 2020, the FtTJ dismissed his appeal. The judge heard evidence from the appellant and also from a witness from the church, Rev B and two other witnesses Mr D and Mr A.
11. The FtTJ recorded that the “central issue is whether or not he is a genuine Christian convert” (at [17]).
12. His findings of fact and assessment of the evidence is set out in considerable detail from paragraphs [20]-[35]. The FtTJ began his assessment by considering the decision of the previous judge (Judge Meyler). The FtTJ summarised the previous decision reached at paragraphs [24 – 25].
13. The FtTJ found no reason to depart from the decision reached by Judge Meyler that the appellant was not a genuine Christian convert and at [26]-[27] addressed the appellant’s change of faith from the Mormon church to his present church, and at [28] (i)-(vi) undertook an analysis of the witnesses called on the appellant’s behalf to attest to the genuineness of his Christian faith. Having considered the evidence in the round, the FtTJ was not satisfied that the appellant was a genuine Christian convert who would seek to practice his religion on return to Iraq.
14. At paragraphs [30]- [31] the FtTJ addressed the Facebook evidence but reached the conclusion that using the language to post material in a language that he described himself as being “illiterate” detracted from his claim to be “genuine Christian”.
15. The FtTJ therefore dismissed the appeal.
16. Permission to appeal was issued relying on 8 grounds of appeal and permission to appeal was granted by FtTJ Grant on 8 January 2021.
17. In decision promulgated on the 28 May 2021 I found an error of law in the decision of the FtTJ for the reasons set out in the decision annexed to this decision and marked “ Annex A”).
18. In summary, that decision set out the reasoning as to why the assessment made by the FtT (Judge Holt) in relation to the appellant’s claimed conversion and risk on return were very detailed, clear, and entirely open to the judge on the evidence. In my judgement the FtTJ carried out a careful consideration of the evidence in the round and reached overall conclusions that were open to him. The grounds amount to nothing more than a disagreement with that evidence and that there was no material error of law in the way the grounds had asserted.
19. It follows that there was no error on the factual assessment made by the FtTJ that related to his claim to fear serious harm on return to Iraq either by reference to his claim to be at risk of an honour killing or on the basis that he is a genuine Christian convert. Consequently, those factual findings remained as preserved findings.
20. The only issue that remained related to that set out in grounds 5 and 7 where it is accepted on behalf of the respondent that the FtTJ erred in law by failing to consider and apply the current CG decision in SMO and others including the issues of documentation and/or internal relocation (I refer to the rule 24 response dated 16/1/21 and relied upon by Mr Diwncyz).
21. The hearing was listed for a resumed hearing in light of the decision reached on error of law and the ambit set out in that decision. The decision of the FtT was set aside on the limited basis as set out above. The factual findings made by the judge at paragraphs [20]-[33] were not set aside and were preserved findings. It was directed that the only issue that the UT would consider on remaking relates to the application of SMO and others on the question of documentation and return.
22. 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.
23. The matter comes back before the Upper Tribunal to remake the decision.
The hearing before the Upper Tribunal:
24. Directions were given by Upper Tribunal Judge Mandalia on 7 June 2022. They stated :
(1) The decision of the Upper Tribunal in SMO and KSP (civil status documentation, article 15) (CG) [2022]UKUT 00110 (IAC) is published on 22 April 2022.
(2) Neither party has complied with the directions of Upper Tribunal Judge Pitt dated 30 September 2021 requiring that file and serve a skeleton argument addressing the outstanding issues in this appeal.
(3) In her error of law decision, Upper Tribunal Judge Reeds found that the FtT had erred only to the limited extent identified her decision. Importantly, she preserved the factual finding set out in paragraphs 20 to 30 of the decision of the first-tier Tribunal.
(4) The resumed hearing of this appeal be listed on the 1st available date.
(5) The appellant shall file and serve a skeleton argument setting out his position upon the outstanding issues in the appeal within 14 days.
(6) The appellant also file and serve any application to reduce further evidence limited to evidence in respect of the outstanding issues within 14 days.
(7) It is the responsibility of the appellant solicitors, a further evidence is to be given by the appellant, to inform the tribunal whether an interpreter will be required. Unless the tribunal hears to the contrary within 14 days the resumed hearing will proceed upon submissions only and no interpreter will be arranged by the tribunal;
(8) the appellant sister shall file and serve a full index paginated consolidated bundle of all the evidence and documents that the appellant relies upon by 4 PM on 1 July 2022.
25. The hearing took place on 3 August. The advocates attended the hearing as did the appellant who was able to see and hear the proceedings conducted with the assistance of the court interpreter who confirmed that he and the appellant were able to understand each other.
26. There was no request for oral evidence to be given and no further evidence was filed on behalf of the appellant. Mr Ahmad provided a skeleton argument dated 2 August 2022. No skeleton argument was filed on behalf of the respondent.
27. The tribunal heard oral submission from the advocates, and I am grateful for their assistance and their oral submissions.
The submissions on behalf of the appellant:
28. There is a skeleton argument filed on behalf of the appellant prepared by Mr Ahmad for the remaking hearing which is reproduced below.
29. It is submitted that the appellant has stated that he has no documents or CSID with him and that it is submitted to obtain documents would be near impossible. At [97] of SMO 2 the UT stated that they will not depart from SMO 1 in respect of the Laissez-Passer and that the document will not assist an individual as he would not be permitted to pass through the checkpoints. (See SMO 1 at [12] which stated the same).
30. Internal travel is not possible with a Laissez-Passer and is confiscated upon arrival (see comments from Dr Fatah at [108] SMO 2).
31. The respondent failed to provide cogent evidence which would justify departure from the UT conclusion in respect of the supporting letter, [98] SMO 2. As per SMO 1 at [352- 361] and since then, the respondent has not provided the UT with the said letter from the Iraqi authorities, these were the findings of the UT in SMO 2. The Tribunal were clear when they stated at [101] SMO 2 that:
Lest we are wrong in that conclusion, we should state clearly that we do not accept that an individual who attempted to travel with a supporting letter (whether accompanied by a Laissez Passer or not) would be able to pass through checkpoints in government-controlled Iraq with that document. Even if the document is signed by the police and a representative of the Ministry of the Interior, we do not consider that it would represent an acceptable form of identification document to the ill-trained militiamen in control of the various PMF checkpoints, particularly in the Formerly Contested Areas.
32. At [113-114] the Tribunal in SMO 2 concluded that the Laissez-Passer will be confiscated upon arrival and is unlikely to be of any use to anyone who seeks to board an internal flight and that the Laissez-Passer is of no use and no evidence to support that returnee are issued with a supporting letter at Baghdad Airport. The appellant will not be able to use and travel with a Laissez-Passer within Iraq.
The 1957 Registration Document
33. The 1957 document will be of no use by an undocumented individual (Dr Fatah at [126] SMO The Tribunal agreed with the submissions of Counsel for the appellant’s that the document is of limited if not any value to an undocumented individual.
34. At [127] SMO 2, the respondent has accepted that the 1957 document cannot be used for travel whether by land or air. The 1957 document is not a valid form of ID acceptable at checkpoints (see [132] SMO 2).
35. In conclusion SMO 2 found at [137] that:
Ultimately, therefore, the utility of the 1957 Registration Document is comparatively limited…It is not a solution in itself to the difficulties that individual would encounter on return to Iraq.
36. Given the concession by the Respondent in SMO 2 it is difficult to see how the appellant would be able to obtain and or use this document if returned.
Electronic Personal Registry Record (EPR) (or Electronic Registration Document ERD)
37. Although there is no information about this document contained anywhere, the UT found that there is little information about this. There is no reference to this in the respondent’s RFRL. However, for the sake of completeness, the UT in SMO 2 at [143] found that:
As Mr Bazini submitted, the evidence in respect of the EPRR is very scant. It is not clear whether it reflects the entries in the Family Book or the INID system. If it is the former, it is not clear why this system seemingly replicates the 1957 Registration Document system, which has been in place for years. If it is the latter, is not clear why this document is thought to be beneficial to a person who has already enrolled their biometrics and been issued with an INID. We have not been told whether the document can be applied for in the UK or Iraq, or both. We do not know what needs to be provided in support of an application for this document. Frankly, it is far from clear how the existence of this document is presently thought to add anything at all to the Tribunal’s deliberations.
38. The information about the document is non-existent, the appellant would have never heard of this and as such given the number of questions arising about this document, there is no clarity or certainty that this will aid the appellant.
Likelihood of Recalling (or Obtaining) Family Book Details
39. The appellant cannot remember his family book details. He had no reason to learn the number as he did not use his document enough to have done so. Dr Fatah in SMO 2 at [75] stated that:
He noted that Iraqis had no reason to commit the details to memory, since they would produce the document when required.
Counsel for the Appellant and Respondent at [78] SMO 2 stated that:
Both counsel accepted that some would remember these details and others would not.
40. A rounded assessment of age, frequency of which they would have required to produce or enter their Family Book details and any dealings with officials would need to be considered by the Tribunal (see [84] SMO 2).
Proxy/Power of Attorney
41. The appellant will not be able to obtain a power of attorney or proxy as he has no documentation. Dr Fatah confirmed this by saying at [130] SMO 2:
Dr Fatah’s wholly logical evidence that the Iraqi authorities will only grant a power of attorney upon production of an acceptable form of identity document, which would most likely be a passport, CSID or INID

[…]

Where the individual is undocumented, therefore, that is not a realistic option.

[…]
42. Again, however, it is difficult to see how an individual without acceptable proof of identity in this country could hope to grant power of attorney to a person in Iraq. For a truly undocumented individual without contactable family members in Iraq, therefore, the likelihood of obtaining an individual 1957 Registration Document is remote.
43. As far as Proxy is concerned, SMO 2 held at [12] that:
In order to obtain an INID, an individual must personally attend the Civil Status Affairs (“CSA”) office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy
“We do not know if the appellant’s CSA office is registered for an INID terminal. If it is not, then obtaining a CSID in the UK or Iraq is not feasible” as per SMO 2 at [61].
44. To apply for a CSID certain documents are required as per [62] SMO 2. The UT in SMO 2 referring to AAH at [25] gave a list which consisted of:
a) Birth certificate
b) Housing card/letter from council
c) Mukhtar letter/confirmation
d) PDS card
45. It is longer know whether they have installed INID terminals or not ([65] SMO 2). The appellant has no birth certificate, no housing card or letter from the local council, no confirmation or document from the local Mukhtar and no PDS card. How would he then obtain a CSID/INID. The appellant is unlikely to be registered at a CSA office and therefore as such he is unlikely to obtain a CSID whilst in the UK as per [60] SMO 2.
46. The appellant does not know the reference/volume/page number of his ID card as he had no use of it every day. The appellant’s account is corroborated by an example given in SMO 2 at [82] in which it was said that:
Mr Bazini’s example of the single, young farmer who never had any need to travel outside his village is a good one, with respect, as such a person would be unlikely to need to carry or to produce his identity documents at checkpoints or in any dealings with officialdom.
Passport
47. The appellant has confirmed that he did not have a passport. Headnote [17] of SMO 2 stated that:
A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel by land.
48. With many checkpoints there is a reasonable degree of likelihood that the Appellant will not be allowed to pass. He will therefore be faced with living without a CSID or INID and the appeal should be allowed.
49. The appellant submits that he meets the requirements of Paragraph 276 ADE (1) (vi) (HC395 as amended) to be granted leave to remain in the UK. It is submitted that the appellant’s personal characteristics and circumstances, as set out above, create significant obstacles to the Appellant’s reintegration in either Iraq, and for these reasons, it would be unduly harsh to expect the Appellant to return to and reintegrate into Iraq.
50. In his oral submissions Mr Ahmad submitted that when looking at the issue of documents the first document required is the CSID as set out in SMO (2). However there has been a change from the use of a CSID to the INID and the question is whether the appellant would be able to obtain a CSID. It is plausible that the CSID has expired and therefore is not valid if the INID is the way forward.
51. He directed the Tribunal to the most up-to-date CPIN dated July 2022 and Annex D to demonstrate that the offices still issuing CSID’s are set out in that there had been a shift to show that those documents were being replaced. He submitted that Annex D confirmed that the appellant’s CSID was no good because it was not valid because of the change from the use of CSID’s and the INID. The appellant is from the IKR, and it is not mentioned in Annex D and therefore there was a clear shift.
52. He submitted that the appellant could have a laissez passer but the decision in SMO (2) confirmed that this document is confiscated on arrival. Therefore he stated how could the appellant travel within Iraq to the intended destination without the document?
53. To obtain the INID he would require a birth certificate, Mukhtar letter (see paragraph 62 of SMO(2)). The appellant would need to register his biometrics to obtain an INID and therefore would have to attend in person. A proxy is therefore not a sensible suggestion.
54. Mr Ahmad submitted that the evidence of Dr Fatah ( paragraph 130) confirmed that the appellant could not get a proxy for an INID. Dr Fatah also said that the Iraqi authorities would only give a power of attorney with evidence of his identification and as the appellant is returning from the West it will be difficult to see how he could obtain a power of attorney.
55. The appellant does not have a passport but that is not a recognised form of travel.
56. The 1957 registration document is also not a document that would enable the appellant to return to the IKR. Mr Ahmad submitted that he appreciated that the appellant has a CSID, but it is not valid and therefore the appellant is undocumented. Furthermore, CSID’s are not being issued from the offices in the IKR. It is stated from paragraph 127 in SMO 2 that the 1957 document cannot be used for travel therefore that document would not be usable for travel to pass through checkpoints.
57. As to the family book details, Judge Meyler accepted that he was illiterate and therefore recording details will be difficult and there will be no reason for him to do so. SMO (2) gives details of this.
58. Mr Ahmad submitted that whilst the remaking issue was in respect of documentation, the issue of risk arose as the Iraqi authorities would consider the lack of documentation and that this would raise questions at the airport and checks would be made. The previous decision-maker did not accept the appellant was a genuine Christian or his sur place activities, but the appellant has Facebook and that is sufficient to bring him to the attention of the authorities as the authorities monitor this and the question is whether there will be checks on arrival.
59. Dealing with article 8 and paragraph 276 ADE(1) (vi) Mr Ahmad submitted it would be unduly harsh and difficult for him to return to the IKR and that the appellant relied on his private life as he had been in the UK for 5 years. Mr Ahmad submitted that he would not be able to know what was going on in his locality and this enhanced his risk having converted, which although was not accepted by the FtT he is classed as an apostate.
60. Mr McVeety on behalf of the respondent made the following submissions. He raised 2 preliminary points. Firstly, he stated that the skeleton argument was premised on the basis that the appellant did not have a CSID but there were findings of fact made by Judge Meyler that the appellant did have a CSID (see paragraph 41 of his decision) and that was relied upon before Judge Holt (see decision letter). Mr Ahmad in response stated that while the skeleton argument said that what he was trying to convey was that the appellant did not have it on him.
61. The second point was that the submissions made by Mr Ahmad appeared to raise issues that had already been determined as set out in the preserved findings. It was not open to him to argue that there was an asylum claim based on risk due to his religion in the light of the factual findings already made. Furthermore in relation to the Facebook issue raised in the oral submissions, it would not apply. Whilst he stated the appellant was illiterate, that did not explain why he claimed previously to post on Facebook. In any event a recent UT decision XX( P Jak-sur place activities-Facebook Iran CG [2022] UKUT 0023 stated that where someone was not genuine and was not believed they would be able to shut down any Facebook page without it being a breach of the HJ (Iran) principles set out at the headnote 9. Thus there would be no risk to the appellant by deleting his Facebook.
62. Mr McVeety submitted that in relation to the scope of the hearing in relation to documentation, the difficulty with the submissions made is that none of the CG decisions or the respondents CPIN refer to the CSID as becoming invalid if an area had moved over to the INID system. He submitted this was a speculative submission and if this were the case it would be set out in the evidence. The CG decision refers to certain CSA offices no longer issuing new CSID cards but there is no evidence that the appellant’s existing CSID card is invalid as submitted.
63. He submitted that the starting point was that the appellant met the requirements of SMO(2) as he has a CSID card. He therefore does not need to re-document to travel back to his home area, and he does not need to remember the family book as the information required is in the CSID. There is no support for the submission that the CSID card is not valid. The appellant has all the documents required.
64. Mr McVeety submitted that when looking at SMO (2) it notes that the appellant would need a passport or a laissez passer and it is noted that the laissez passer can be used. The appellant has other documents with him including other identification and his driving licence. He can therefore redocument himself in the UK by obtaining a new passport from the Iraqi embassy or in the alternative a laissez passer. He can return to Iraq using the CSID to his home area in the IKR. There is no evidence to say that he would be forced to give in his CSID card to replace it with an INID. Therefore the appellant has all the documentation he requires.
65. Mr McVeety accepted that the appellant could not obtain an INID in the UK as set out in Annex D, but the point made is the appellant does not need to redocument himself. The documents that he has set out in his original substantive interview at question 2, and paragraph 41 of FtTJ Meyler’s decision demonstrates that the appellant has a CSID which was handed to the Home Office.
66. At this point of the submissions there was some discussion about the CSID. It was noted that the skeleton argument submitted the day before the hearing appeared to be premised on the basis that the appellant did not have a CSID. However the 2 previous FtTJ decisions referred to the appellant having a CSID card. It appeared to be accepted that the appellant had handed to the Home Office his CSID card. Mr Ahmad stated that an adjournment could be granted to see whether the Home Office still had the CSID and whether the appellant may have a lack of understanding about the documents.
67. Mr McVeety opposed any adjournment on that basis. He submitted that the onus of proof was on the appellant on this issue and that it was not the respondent saying that there was a CSID card, but this was the evidence of the appellant. This was a factual finding made by the FtTJ Meyler (at paragraph 41) and had not been in dispute previously. When looking at the skeleton argument submitted to the FTT there was no issue about this document and no challenge to the previous finding that he had his own documents.
68. When looking at the other relevant documents, there was a pre-hearing directions (CMRH) held by Upper Tribunal Judge Martin prior to the hearing at paragraph 6 it refers to the respondent’s reply and noted that the appellant has a CSID. The skeleton argument from the appellant did not deal with this nor in the witness statements dated 2/7/2019 or 4/2/20. The most recent decision letter of 2019 cites Judge Meyler’s finding at paragraph 14 that the appellant has a CSID ( and further set out this out at paragraphs 49 and 51)
69. Mr McVeety therefore submitted that in light of the documents, he invited the tribunal to find that the appellant had a CSID, that there was no evidence that it was invalid and applying the country guidance decisions the appellant can utilise that document along with a laissez passer so that he can travel to his home area in the IKR. The up-to-date CPIN refers to removal to any airport in Iraq, including directly to the IKR.
70. In respect of the submission made under article 8 and paragraph 276 ADE, Mr McVeety submitted that this could only be on the basis that there were very significant obstacles as a result of not having documents and not on any stand-alone basis. Therefore if he could not succeed for the reasons set out above, article 8 would not succeed either.
71. By way of reply, Mr Ahmad submitted that the decision referred to by Mr McVeety related to Iran and that even if the Facebook had been deleted it would put him at risk and that it would not matter if he were sincere or not. He submitted other issues arose that people had tagged the post and shared them and whether individuals would have to delete them even if he deleted his account. It would still be on the system for 30 days and be nothing to prevent screenshots and printing the evidence.
72. As to the documentation and ID card it is not valid for travel and a CSID or INID would be required.
73. Mr Ahmad also submitted that even if the country guidance decision did not say a CSID was invalid they would be no reasons to say the Iraqi authorities would accept it as valid and it was not possible to say that.
Discussion:
74. 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.
75. 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 [20-35] of the FtTJ decision. I begin by setting out the factual findings of Judge Meyler:
76. FtTJ Meyler made the following findings:
(1) the appellant is a Kurdish man from the KRI (paragraph 21).
(2) In relation to his claimed marriage to M, who was a Christian and was the cause of his claimed problems in Iraq, the FtTJ took into account the marriage certificate but set out at [22] the inconsistent evidence given in the document and the appellant’s evidence and that the name given for the appellant was different from the translation and the marriage certificate.
(3) At [24] the judge found that the appellant’s oral evidence about his marriage certificate and the arrest warrant had been inconsistent in the context of how the documents had been obtained.
(4) At [25]-[26] the FtTJ set out the inconsistent evidence given by the appellant concerning the contents of the arrest warrant. The appellant’s claim was that the warrant was issued because the family complained about him her without consent and because of “their daughter’s death.” The judge set out the inconsistencies in the arrest warrant and in the appellant’s evidence and in particular the date on the arrest warrant given as 15 July 2015 was inconsistent with his account that she died on 15 November 2015 but in any event the judge found that the date of the arrest warrant was a date before the date he claims M had died (in other words the warrant was issued before her death).
(5) The FtTJ therefore rejected the appellant’s account that he had left Iraq by eloping with M and that they were seeking revenge by way of honour crime. The judge also did not accept that the appellant had demonstrated to the lower standard that M had died in the circumstances claimed. In the alternative the judge found that the family would not seek to kill him or subject him to serious harm; is on his evidence M told her father that she had married the appellant and therefore they knew that she was a willing partner (at [29 – 34]).
(6) In relation to his conversion, this was addressed at paragraphs [36 – 39] and whilst the FtTJ accepted that he showed an interest in the church, the FtTJ was not satisfied that the appellant was sufficiently interested or committed to the faith to wish to practice it on return to Iraq.
(7) At [40] the FtTJ considered the Facebook posts but that they would not place him at risk on return to Iraq; there is no evidence before the tribunal of any “pinch point” on return to Iraq and even if there were, the appellant could just log onto his old Facebook account which he states he no longer used.
(8) The FtTJ found that the appellant could return to Iraq would not be at risk of serious harm or persecution.
(9) The judge found that there was no real risk of destitution on return, as he found that the appellant could return straight to his family in the KRI, as he did before. He can be flown directly to Erbil, as he was last time, and the judge found that he would be admitted directly to the KRI. The judge found that he had his “ID card, his CSID and driving licence and could therefore also relocate within the KRI if he did not wish to live with his family. The judge found that he would not be subjected to serious harm on return to the KRI (at [41]).
(10) The judge also recorded that no article 8 claim was argued before him, whether in the skeleton argument or in oral submissions and consequently found that removal would not be disproportionate ( at [43])
77. The factual findings of FtTJ Holt can also be summarised as follows. The FtTJ recorded that the “central issue is whether or not he is a genuine Christian convert” (at [17]).
78. The FtTJ at [22] began his consideration by applying the principles in Devaseelan by setting out the previous decision of Judge Meyler who had considered and rejected the appellant’s claim for asylum both on the basis of being at risk of serious harm in Iraq based on his elopement with M and also on the basis of his claim conversion to Christianity.
79. His findings of fact and assessment of the evidence is set out in considerable detail from paragraphs [20]-[35]. The FtTJ began his assessment by considering the decision of the previous judge (Judge Meyler). The FtTJ summarised the previous decision reached at paragraphs [24 – 25].
80. At [24] the FtTJ Holt set out the following.
(1) At the previous hearing in February 2008 the appellant claimed that he was at risk on return to Iraq as a Christian then practising at the Church of Jesus Christ of Latter-Day Saints (Mormon). He claimed to be interested in Christianity through a woman called M who was studying with his cousin, he claimed to elope with her married in June 2015 and that on leaving Iraq she died en route.
(2) Judge Meyler did not find the appellant’s claim in either regard to be consistent or credible and did not accept his claim about M, her dying in the circumstances claimed, nor the threats from her family.
(3) As to his conversion to Christianity, Judge Meyler noted that there was no Dorodian witness attending the appeal hearing in February 2018.
(4) At [37] Judge Meyler stated that the appellant was “probably quite lonely when he arrived in the UK and that the Mormons probably welcomed him into a supportive community” and that Judge Meyler accepted that he had attended the temple regularly and that he was baptised but for the reasons set out at paragraph 36 to 40 found that even on the lower standard that he was not sufficiently interested or committed to his faith that he would practice it upon return.
81. Those paragraphs set out the evidential backdrop of the analysis which was to follow.
82. The FtTJ found no reason to depart from the decision reached by Judge Meyler that the appellant was not a genuine Christian convert and at [26]-[27] addressed the appellant’s change of faith from the Mormon church to his present church, and at [28] (i)-(vi) undertook an analysis of the witnesses called on the appellant’s behalf to attest to the genuineness of his Christian faith. Having considered the evidence in the round, the FtTJ was not satisfied that the appellant was a genuine Christian convert who would seek to practice his religion on return to Iraq.
83. At paragraphs [30]- [31] the FtTJ addressed the Facebook evidence as follows:
“30. The appellant confirmed at the hearing, and I accept is accurate, that he is illiterate in English. It seems that he can speak it well enough to get by most of the time (but not well enough to give evidence in English – a position that I entirely accept) but cannot read or write English with any proficiency. The appellant repeatedly referred himself being “illiterate” in reading and writing in English. Nonetheless, he has a high level of literacy in Kurdish Sorani. Against this background, Mr Hall questioned the appellant about his posts on his Facebook page.

31. The appellant has (or had had-it is not entirely clear) to Facebook (FB) pages. The 1st 1 was opened when he 1st came to the UK, he said, and he used Kurdish Sorani only to post items on this FB page. The appellant said that friend that the FB page up for him. On the 2nd, more recent FB page, he said that he posts in English and Sorani. Mr Hall queried with the appellant why he posts and asked, “why are you publishing in English if cannot understand English?” In the end the appellant responded, “because I have many English friends and friends in other languages and my Facebook open to everyone.” I found that this response rate as many questions as it answered. It was unclear who was actually writing the content of his FB page and the overall impression that was left that it was not really something that he uses a genuine tool of communication that it was something that “friends” and advise them to do. It seems very artificial to him to have a public facing FB page which is the language that he self-described himself as being “literal” in. Overall, this was yet another feature of the evidence which detracted from the appellant’s claims to be a genuine Christian. The evidence that it far more comfortably with the respondent’s assertion that the appellant was simply claiming to be a Christian as a vehicle to remain in the United Kingdom for his own private reasons and therefore was not a genuine refugee entitled to international protection. I am not satisfied that the appellant’s FB publications have been anything more than an attempt to bolster his image as an evangelising Christian for personal reasons connected with gaining refugee status in the UK.”
84. At paragraph [32] the judge considered the appellant’s history in the context of section 8 of the 2004 Act finding that in this case, the appellant originally claimed to be under the age of 18 and from Iran, he went back to Iraq (Erbil) voluntarily and then entered the UK again illegally as behaviour which undermined the appellant’s claims.
85. The judge concluded at [33] “the fact that the appellant briefly went back to Erbil voluntarily I was able to live there for a number of years undermined any claims that he would struggle to gain a foothold in Iraqi Kurdish society and be at risk of destitution. Whoever enabled the appellant settle back in last time will be able to assist him again.”
86. As set out in the error of law decision, it was concluded that the grounds of challenge in respect of his claimed conversion were not made out and in relation to ground 8, which sought to challenge the findings on the Facebook evidence and assessment of risk, the following was stated at paragraph [79]-[80]:
“I am satisfied that there is no error in the assessment of any sur place activities. At [31] the judge undertook a critical analysis of the appellant’s evidence concerning two Facebook pages. For the reasons given at [31] the judge gave reasons as to why he reached the conclusion that the Facebook page was not a “genuine tool of communication but that it was something that “friends” advised him to do.” The judge also recorded that it was “very artificial for him to have a public facing Facebook page which is a language that he self-described himself as being “illiterate” in.” Thus, he concluded that this was another feature of the evidence which “detracted from the appellant’s claim to be a genuine Christian.” That being the case, there was no reason for the judge to depart from the earlier findings made by Judge Meyler at paragraph [40] who found that the posts did not demonstrate that he was a genuine convert but also that he would not feel a pressing need to continue posting Christian messages on return to Iraq as he would have nothing to gain from it. The judge further found “there is no evidence before me of any “pinch point” on return to Iraq and even if there were, the appellant could just log onto his old Facebook account that he states he no longer uses.”

The material that the appellant relied upon related to the Iranian authorities and not the Iraqi authorities. The tribunal was not provided with evidence to demonstrate that the Iraqi authorities undertook similar procedures as described in the country materials and CG decisions dealing with the Iranian authorities. The grounds do not refer to any evidence in support and I have not been referred to any during the course of the hearing.”
87. The conclusion reached at the error of law hearing was that the assessment made by the FtTJ in relation to the appellant’s claimed conversion and risk on return were very detailed, clear, and entirely open to the judge on the evidence and that the FtTJ carried out a careful consideration of the evidence in the round and reached overall conclusions that were open to him. The grounds amounted to nothing more than a disagreement with that evidence that that there is no material error of law in the way the grounds assert.
88. It followed that there was no error on the factual assessment made by the FtTJ that relates to his claim to fear serious harm on return to Iraq either by reference to his claim to be at risk of an honour killing or on the basis that he is a genuine Christian convert. Consequently, those factual findings remain as preserved findings. I observe at this point that the preserved findings included those which related to risk of harm relating to Facebook posts.
89. The only issue that remained from the grounds related to that set out in grounds 5 and 7 where it was accepted on behalf of the respondent that the FtTJ erred in law by failing to consider and apply the current CG decision in SMO and others including the issues of documentation and/or internal relocation. That was the scope of the remaking hearing.
90. Mr McVeety on behalf of the respondent submits that the oral submissions made on behalf of the appellant now seek to raise points which were not identified as one’s relevant to the remaking hearing.
91. He identifies two issues. Firstly the issue raised in Mr Ahmad’s oral submissions (but not in the written skeleton argument) that the Iraqi authorities would consider the lack of documents and that he would be checked at the airport and that as the appellant has Facebook and the authorities monitor this, the question is what would be revealed on checks on arrival? The 2nd point raised was that it would be unduly harsh or difficult for the appellant to return to the IKR and relying on his private life having been in the UK for 5 years and would be at an enhanced risk having converted to Christianity.
92. As set out above neither of those issues were identified as issues for assessment and the remaking hearing and no application was made either in writing or orally to raise further issues. Specific directions were made by Judge Mandalia on 7 June 2022 . No further evidence has been filed.
93. In essence, Mr McVeety argues that Mr Ahmad has sought to reargue those points which have already been the subject of argument at the EOL hearing and that no further application was made to reargue those issues nor has any evidence been advanced upon which to do so.
94. Having considered those points, I have already set out that in relation to article 8, the submissions made by Mr Ahmad were directed towards whether there would be “very significant obstacles to his integration” based on the lack of documentation rather than an article 8 claim based on the appellant’s private life. That is not surprising as the article 8 claim based on his private life was not advanced before Judge Meyler (see paragraph 43) nor was the claim advanced before Judge Holt. Furthermore no evidence has been adduced on behalf of the appellant in support of an article 8 private life claim for this hearing.
95. As to the issue of the Facebook posts, the findings of fact made by the 2 previous judges have been preserved for the purposes of this hearing and no further evidence, either in the form of a witness statement or oral evidence of the appellant has been provided nor any country materials beyond that set out in the CG decision of SMO (2). The factual findings made previously remain as preserved findings and there has been an absence of evidence or no application to reopen those factual findings which remain and upon which the assessment of risk should take place. Mr Ahmad’s submissions related to entry to the appellant’s home area.
96. I therefore intend to consider the issues in the light of the findings of fact that have already been made and in the context of the CG decision of SMO(2).
97. The current CG decision is SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 001100 (IAC) (hereinafter referred to as “SMO(2)”).
98. The headnote of the CG decision is replicated below. There is no dispute that the appellant’s home area is x which is a village between Sulamaniyah and Erbil in the IKR. It has not been argued that Section A of SMO(2) is of relevance which relates to the application of Article 15(1) ( c).
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:
(i) Opposition to or criticism of the GOI, the KRG or local security actors;
(ii) 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;
(iii) LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals;
(iv) Humanitarian or medical staff and those associated with Western organisations or security forces;
(v) Women and children without genuine family support; and
(vi) 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.

B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)
7. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a Laissez Passer.
8. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
9. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of a current or expired Iraqi passport or a Laissez passer, if the Tribunal finds that P's return is not currently feasible on account of a lack of any of those documents.
10. Where P is returned to Iraq on a Laissez Passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport.
C. CIVIL STATUS IDENTITY DOCUMENTATION
11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.
12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs ("CSA") office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.
13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities but only for those Iraqi nationals who are registered at a CSA office which has not transferred to the digital INID system. Where an appellant is able to provide the Secretary of State with the details of the specific CSA office at which he is registered, the Secretary of State is prepared to make enquiries with the Iraqi authorities in order to ascertain whether the CSA office in question has transferred to the INID system.
14. Whether an individual will be able to obtain a replacement CSID whilst in the UK also depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process. Given the importance of that information, some Iraqi citizens are likely to recall it. Others are not. Whether an individual is likely to recall that information is a question of fact, to be considered against the factual matrix of the individual case and taking account of the background evidence. The Family Book details may also be obtained from family members, although it is necessary to consider whether such relatives are on the father's or the mother's side because the registration system is patrilineal.
15. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.
16. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.
17. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel by land.
18. Laissez Passers are confiscated on arrival and will not, for that reason, assist a returnee who seeks to travel from Baghdad to the IKR by air without a passport, INID or CSID. The Laissez Passer is not a recognised identity document for the purpose of internal travel by land.
19. There is insufficient evidence to demonstrate the existence or utility of the 'certification letter' or 'supporting letter' which is said to be issued to undocumented returnees by the authorities at Baghdad International Airport.
20. The 1957 Registration Document has been in use in Iraq for many years. It contains a copy of the details found in the Family Books. It is available in either an individual or family version, containing respectively the details of the requesting individual or the family record as a whole. Where an otherwise undocumented asylum seeker is in contact with their family in Iraq, they may be able to obtain the family version of the 1957 Registration Document via those family members. An otherwise undocumented asylum seeker who cannot call on the assistance of family in Iraq is unlikely to be able to obtain the individual version of the 1957 Registration Document by the use of a proxy.
21. The 1957 Registration Document is not a recognised identity document for the purposes of air or land travel within Iraq. Given the information recorded on the 1957 Registration Document, the fact that an individual is likely to be able to obtain one is potentially relevant to that individual's ability to obtain an INID, CSID or a passport. Whether possession of a 1957 Registration Document is likely to be of any assistance in that regard is to be considered in light of the remaining facts of the case, including their place of registration. The likelihood of an individual obtaining a 1957 Registration Document prior to their return to Iraq is not, without more, a basis for finding that the return of an otherwise undocumented individual would not be contrary to Article 3 ECHR.
22. The evidence in respect of the Electronic Personal Registry Record (or Electronic Registration Document) is presently unclear. It is not clear how that document is applied for or how the data it contains is gathered or provided. On the state of the evidence as it presently stands, the existence of this document and the records upon which it is based is not a material consideration in the evaluation of an Iraqi protection claim.
D. INTERNAL RELOCATION WITHIN GOI-CONTROLLED IRAQ
23. Where internal relocation is raised in the Iraqi context, it is necessary to consider not only the safety and reasonableness of relocation but also the feasibility of that course, in light of sponsorship and residency requirements in operation in various parts of the country. Individuals who seek to relocate within the country may not be admitted to a potential safe haven or may not be permitted to remain there.
24. Relocation within the Formerly Contested Areas. With the exception of the small area identified in section A, the general conditions within the Formerly Contested Areas do not engage Article 15 QD(b) or (c) or Article 3 ECHR and relocation within the Formerly Contested Areas may obviate a risk which exists in an individual's home area. Where relocation within the Formerly Contested Areas is under contemplation, however, the ethnic and political composition of the home area and the place of relocation will be particularly relevant. In particular, an individual who lived in a former ISIL stronghold for some time may fall under suspicion in a place of relocation. Tribal and ethnic differences may preclude such relocation, given the significant presence and control of largely Shia militia in these areas. Even where it is safe for an individual to relocate within the Formerly Contested Areas, however, it is unlikely to be either feasible or reasonable without a prior connection to, and a support structure within, the area in question.
25. Relocation to Baghdad. Baghdad is generally safe for ordinary civilians but whether it is safe for a particular returnee is a question of fact in the individual case. There are no on-entry sponsorship requirements for Baghdad but there are sponsorship requirements for residency. A documented individual of working age is likely to be able to satisfy those requirements. Relocation to Baghdad is likely to be reasonable for Arab Shia and Sunni single, able-bodied men and married couples of working age without children and without specific vulnerabilities. Other individuals are likely to require external support, ie a support network of members of his or her family, extended family or tribe, who are willing and able to provide genuine support. Whether such a support network is available is to be considered with reference to the collectivist nature of Iraqi society, as considered in AAH (Iraqi Kurds – internal relocation) CG [2018] UKUT 212.
E. IRAQI KURDISH REGION
26. There are regular direct flights from the UK to the Iraqi Kurdish Region and returns might be to Baghdad or to that region. It is for the respondent to state whether she intends to remove to Baghdad, Erbil or Sulaymaniyah.
Kurds
27. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi National Identity Card (INID), the journey from Baghdad to the IKR by land is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
28. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID, an INID or a valid passport. If P has one of those documents, the journey from Baghdad to the IKR by air is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
29. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or an INID. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor an INID there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P's identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P's identity documents but may also be achieved by calling upon "connections" higher up in the chain of command.
30. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There are no sponsorship requirements for entry or residence in any of the three IKR Governorates for Kurds.
31. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL territory.
32. If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a 'relatively normal life', which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P's family on a case by case basis.
33. For Kurds without the assistance of family in the IKR the accommodation options are limited:
(i) Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members;
(ii) If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month;
(iii) P could resort to a 'critical shelter arrangement', living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;
(iv) In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.
34. Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:
(i) Gender. Lone women are very unlikely to be able to secure legitimate employment;
(ii) The unemployment rate for Iraqi IDPs living in the IKR is 70%;
(iii) P cannot work without a CSID or INID;
(iv) Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;
(v) Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;
(vi) If P is from an area with a marked association with ISIL, which may deter prospective employers.
Non-Kurdish Returnees
35. The ability of non-Kurdish returnees to relocate to the IKR is to be distinguished. There are no sponsorship requirements for entry or residence in Erbil and Sulaymaniyah, although single Arab and Turkmen citizens require regular employment in order to secure residency. Arabs from former conflict areas and Turkmen from Tal Afar are subject to sponsorship requirements to enter or reside in Dohuk. Although Erbil and Sulaymaniyah are accessible for such individuals, particular care must be taken in evaluating whether internal relocation to the IKR for a non-Kurd would be reasonable. Given the economic and humanitarian conditions in the IKR at present, an Arab with no viable support network in the IKR is likely to experience unduly harsh conditions upon relocation there.
99. 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.
100. 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)).
101. 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]).
102. In his skeleton argument Mr Ahmad sets out the documents assessed by the Upper Tribunal in SMO(2). They were the CSID, the INID, 1957 registration document, and the electric personal registry record (“EPR”) and (“EPD”).
103. In light of the CG decision, there is no dispute between the parties that the CSID has been replaced with a new biometric Iraqi National Identity Card – the INID (see headnote paragraph 11) and that in order to obtain an INID an individual must personally attend at the Civil Status Affairs (“CSA”) office at which they are required to enrol their biometrics including fingerprints and iris scan (see paragraph 51). Furthermore the CSA offices in which the INID terminals are being installed are unlikely as a result of the phased replacement of the CSID system to issue a CSID whether to an individual in person or to a proxy.
104. In the CG decision, the panel considered the evidence as to whether CSID’s continued to be issued. At paragraph [59] the panel recorded Dr Fatah’s evidence that CSID’s continued to be issued and that there had been a shortage of INID cards. The panel concluded at [60] that it was more likely than not that CSID’s continued to be available through the Iraqi embassy in the UK but only for the individuals who are registered at a CSA office which has not transferred to the digital INID system.
105. At paragraph [64] the panel referred to areas in Iraq where the CSID was still in use and at [66] in relation to the IKR, the respondent had adduced no evidence about the specific locations which continued to issue CSID’s and again referred to the evidence of Dr Fatah who was unable to shed any light on the specific offices in the IKR which continued to use the old system, but he knew that there were particular shortages in Erbil. At [67] the panel recorded the respondent’s position that she could ascertain whether a given CSA office still issued the CSID and would be prepared to make enquiries with the Iraqi authorities. Further reference is made to the degree of detail required before such an enquiry could be expected (at [67]). That has not been done in this appeal however as set out in July 2022 at Annex D the CSA offices in the IKR issue the INID.
106. The skeleton argument filed on behalf of the appellant is premised on the basis that the appellant does not have a CSID. However as observed by Mr McVeety in his oral submissions, this ignores the previous findings of fact which have been maintained that the appellant does have a CSID. Mr Ahmad modified his submissions on the basis that the CSID the appellant would have was likely to be invalid and on that basis he required an INID which could only be issued in the IKR. Thus any previous document he had would be invalid and not be available for his use.
107. As noted earlier, when looking at the issue of documentation there was a suggestion that the hearing should be adjourned for the respondent to check the CSID. Having heard from the parties, the adjournment was refused for the following reasons.
108. Firstly, the factual findings made by Judge Meyler who had heard the appellant give evidence was that the appellant had a CSID ( see paragraph 41 of his decision). That finding was unchallenged.
109. Secondly, that finding was maintained by the respondent as seen in the decision letter dated 22 August 2019 at paragraph 14 where FtTJ Meyler’s findings of fact were recorded “ I find that there is no real risk of destitution on return, as I find that the appellant can return straight to his family in the KRI, as he did before. He could be flown directly to Erbil, as it was last time, and I find that he will be admitted directly to the KRI. He has his ID card, his CSID and a driving licence and therefore could also relocate within the KRI if he did not wish to live with his family. I therefore find that there is no real risk the appellant would be subjected to serious harm on return to the KRI.”
110. At paragraph 49, the decision letter records “in light of the above it is considered feasible for you to return if you are in possession of a passport or laissez passer. As previously (the judge) noted you are in possession of your CSID, ID card and driving licence which would enable you to obtain a passport or Lassez passer from the Iraqi Embassy in London.” It is further noted at paragraph 51 of the decision letter that “it is noted as shown above and within your previous determination that you are in possession of a CSID.”
111. At the directions hearing before Upper Tribunal Judge Martin (see order dated 25/9/20) the judge set out at paragraph 6 “in the decision the respondent accepted that the appellant is a national of Iraq. However the respondent rejected the appellant’s claim that he is a Christian convert. The Secretary of State relied on the previous decision and reasons and noted that the appellant has his CSID.” And at paragraph 7 “it therefore seems of the issues the determination by the tribunal will be the credibility of the appellant’s claimed conversion and this possession of a CSID.”
112. At the hearing before Judge Holt, the issue of the appellant having a CSID was not challenged and there is no reference to this issue in the appellant’s witness statements filed in 2019 and 2020 nor was there reference in the skeleton argument dated February 2020.
113. Against that factual background, I accept the submission made on behalf of the respondent that the appellant has a CSID which she has identified as such in the previous proceedings and which has been maintained in the last set of proceedings and has not been challenged.
114. 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 any evidence, the appellant has his CSID.
115. Whilst Mr Ahmad submits that the appellant’s CSID is invalid, he has advanced no reasons for such a submission. It is not based on any country objective material as to how long such a document is valid for. Nor has he directed the tribunal to any country materials that demonstrate because CSID’s are being phased out for the INID to be rolled out, that this would make any CSID’s in existence invalid.
116. The CG decision plainly refers to the CSID being replaced by the new biometric INID but further states that “as a general matter, it is necessary for an individual to have one of these 2 documents in order to live and travel in Iraq without encountering treatment or conditions contrary to article 3 ECHR”. The tribunal is therefore referring to the 2 documents in the alternative and that an individual should have 1 of them to be able to live and travel within Iraq. The evidence of Dr Fatah also referred to CSID’s still being issued due to the shortage of INID cards and therefore at the time of the country guidance decision new CSID cards were still being issued in some areas and therefore this underlines the importance of the document as continuing to be a valid document in Iraq.
117. The appellant’s immigration history demonstrates that he travelled from the IKR to the UK in 2008 and voluntary departed to Erbil in 2008 but then returned to the UK again from Erbil in 2016. It is therefore reasonably likely that he has used his CSID for the travel he has undertaken within Iraq previously.
118. As Mr Ahmad submits, the appellant does not have a passport. However the appellant will be able to obtain a laissez passer. As set out in SMO(2) this is a single use document, valid for the flight from the UK to Iraq and likely to be confiscated on arrival (see paragraph[89] of SMO (2)). The appellant has other identification and his CSID which can ensure safe passage to his home area.
119. At paragraph 26 of SMO (2) the panel set out that there are regular direct flights to the UK to the IKR and it is for the respondent to state whether she will remove to Baghdad, Erbil or Sulamaniyah. The present policy of the respondent is set out in the CPIN July 2022 and that it is the policy of the respondent now that an individual may be returned to any airport within the IKR or Iraq and therefore the appellant can be returned to Erbil, as set out in the factual findings by Judge Meyler as the airport where he previously returned to where he travelled from without experiencing any difficulties.
120. Consequently there is no issue relating to the ability of the appellant’s return to the IKR. The appellant can obtain a Laisser passer as the appellant has the relevant documentation to enable that document to be issued by the embassy in the UK. Whilst Mr Ahmad is correct that that document is taken from the airport, that fails to take into account that the appellant has the relevant document namely the CSID. For the reasons set out above, the tribunal has not been pointed to any objective country evidence on behalf of the appellant to demonstrate that a previous CSID properly issued becomes invalid on the basis that the CSA offices in the home area have moved to the INID system. The CG decision of SMO(2) sets out in its headnote at paragraph 11 that the “CSID is being replaced with a new biometric Iraqi National Identity Card -the INID. As a general matter, it is necessary for an individual to have one of these 2 documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to article 3 of the ECHR.” On the factual findings previously made the appellant has 1 of those 2 documents. Therefore the appellant has failed to discharge the burden of proof that he falls into the category of an undocumented Iraqi returnee.
121. Applying the CG in SMO(2), once at the IKR border (Land or air) the appellant would normally be granted entry to the territory. Subject to security screening and registering presence with the local Mukhtar the appellant would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There are no sponsorship requirements for entry or residence any of the 3 IKR governorates for Kurds (see [30]). It is of significance that the appellant is a former resident of the IKR who has family remaining in his home area including his parents and siblings.
122. In this context I have considered the submission made by Mr Ahmad that the appellant has Facebook posts which would place him at risk of harm but have done so in light of the factual findings made by the 2 previous judges which are preserved findings and ones that I have not been asked to revisit by evidence. The appellant has not been found to be a genuine Christian convert nor has it been found to have any pressing need to continue posting Christian messages. No evidence of a “pinch point” was provided and even if there was, the previous judge found that he could logon to an old Facebook account which he no longer used.
123. Mr McVeety referred to the decision in a XX (PJAK sur place activities-Facebook) Iran CG [2021]UKUT 23 and upon which Mr Ahmad responded to in his reply. This was an appeal that concerned return to Iran and the risk on return arising from social media use under surveillance by the authorities in Iran. The guidance supplemented earlier country guidance decisions relating to Iran. Issues relating to the Iranian authorities related to that of surveillance and the likelihood of Facebook material being available to the Iranian authorities as affected by whether the person concerned had been at any material time a person of significant interest. The tribunal also heard evidence concerning returnees from the UK to Iran and the documents they needed to complete and issue of the “pinch point” on return was set out in the context of Iran. Those issues have no relevance to the current appeal which concern a return to Iraq.
124. However the tribunal gave guidance on Facebook more generally, and social media evidence generally ( see paragraphs 125 – 129).
125. Reference is made to countries where access to Facebook and social media is significantly controlled or banned. This tribunal has not been pointed to any evidence that the IKR has such controls or bans social media. The evidence as to Facebook use is set out at paragraph [84] and that once data on a person’s Facebook has been deleted it is irretrievable although it may be reversed before 30 days but not after that time. The only exemptions to this are 2 limited pieces of residual data – limited caches of data for a temporary period, on Internet search engines; and photographs (but not links) on other people’s Facebook accounts and messages sent to other people. Facebook account closure causes the data to be wholly inaccessible through or from Facebook or the user. However if the data has been exported by a third party the third party will continue to have access to the exported data as stored.
126. In the context of this appeal the submissions made on behalf of the appellant were entirely speculative as to whether or not there would be any such residual data. No evidence has been provided as to what residual data there would be if the account were deleted in relation to this particular appellant. Nor is there any evidence provided about the IKR and whether they had any motivation to monitor Facebook accounts, which was a point considered by the tribunal in relation to Iran.
127. The tribunal set out the following:
“129. In deciding the issue of risk on return involving a Facebook account, a decision maker may legitimately consider whether a person will close a Facebook account and not volunteer the fact of a previously closed Facebook account, prior to application for an ETD: HJ (Iran) v SSHD [2011] AC 596. Decision makers are allowed to consider first, what a person will do to mitigate a risk of persecution, and second, the reason for their actions. It is difficult to see circumstances in which the deletion of a Facebook account could equate to persecution, as there is no fundamental right protected by the Refugee Convention to have access to a particular social media platform, as opposed to the right to political neutrality. Whether such an inquiry is too speculative needs to be considered on a case-by-case basis.”
128. When that paragraph is seen in the context of factual findings made by the 2 previous judges, the appellant is not a genuine Christian convert nor was he posting messages as part of a genuine exercise of religious belief. Judge Meyler also found that he would not continue posting messages on return to Iraq as he would have nothing to gain from this. Even if there was evidence of a “pinch point” the appellant was found to be able to log onto an old Facebook account that he no longer used. Consequently the appellant has not discharged the burden of proof on him to demonstrate that he would be at risk of harm or persecution on arrival at the IKR.
129. There are no factors set out at paragraph [31] of SMO(2) which would identify that the appellant would be at any particular risk of ill-treatment during any security screening process. It is not said that the appellant comes from a family with a known association with ISIL, nor does he come from an area associated with ISIL as he is a former resident of the IKR. He will be able to evidence the fact of a recent arrival from the UK which would dispel any suggestion of having arrived directly from ISIL territory. The appellant has family members living in the IKR to whom he can return. The previous evidence was that the appellant was in contact with his family members (see question 2 of substantive interview). There is no evidence to suggest that he no longer has contact with his family in the IKR. FtTJ Holt found that he had previously returned to Erbil voluntarily and was able to live there for a number of years which undermined any claim that he would struggle to gain a foothold in Iraqi Kurdistan society and be at risk of destitution.
130. As set out in SMO (2) being in possession of a CSID, the appellant will be able to return to Iraq. It 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 ) or that article 15 ( c) applies on that basis. For the same reasons, the appellant would not meet the requirements of Paragraph 276ADE(1) (vi) as there would not be very significant obstacles to his integration in the light of his access to documentation, having spent his childhood and formative years in Iraq and continuing to have cultural, language, social and family ties there ( see Kamara v. Secretary of State for the Home Department [2016] EWCA Civ 813).
Notice of Decision.
The decision of the First-tier Tribunal involved the making of an error on a point of law.
The appeal is remade as follows: the appeal is dismissed.


Signed Upper Tribunal Judge Reeds

Dated 6 August 2022


I make a direction regarding anonymity under Rule 14 of the Tribunal Procedure (Upper Tribunal Rules) Rules 2008 as the proceedings relate to the circumstances of a protection claim. 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.