Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09332/2019

THE IMMIGRATION ACTS

Heard at George House, Edinburgh
Issued on
on 25 May 2022
On the 31 May 2022

Before

UT JUDGE MACLEMAN

Between

S H H
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant: Mr K Forrest, Advocate, instructed by AL, Solicitors, Glasgow
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The respondent refused the appellant’s claim, on all available grounds, by a decision dated 16 September 2019.
2. FtT Judge Prudham dismissed the appellant’s appeal by a decision promulgated on 4 February 2020.
3. The appellant applied for permission to appeal to the UT. His proposed grounds were not found to be arguable by either the FtT or the UT.
4. However, UT Judge Bruce granted permission on 15 May 2020 on a point not in the grounds. She considered that the FtT’s findings at [50] on ability to obtain an identity document (CSID / INID) appeared to be contrary to SMO (Article 15c; identity documents) Iraq CG [2019] UKUT 400 at [431] in that the civil registry at Kirkuk (the appellant’s home area) was likely to be operating a new INID terminal, and INID’s are not issued to proxies.
5. In a decision promulgated on 25 September 2020 UT Judge Lindsley at [9] found error of law by the FtT “failing to sufficiently reason its decision … given the information in the current country guidance, SMO, and its application to the appellant”. She set aside the FtT’s findings at [48 – 51]; preserved other findings; adjourned the remaking of the decision on the appeal; and gave directions for further procedure, including submissions from parties.
6. In a submission dated 15 October 2020 the respondent accepted that an INID is only obtainable in Iraq. However, she argued, based on information in a CIPIN (Country Policy and Information Note) of June 2020, that the appellant could obtain from the Iraqi Embassy in London a “registration document (1957)” which would enable him to return and to obtain further documentation once in Iraq. The UT was invited to dismiss the appeal for that reason. This point, however, is no longer arguable, being disposed of in the updated guidance mentioned below, as Mr Mullen accepted.
7. In his first submission in response to directions, the appellant says at [2.3] that he will be unable to document himself because he is “unaware of any relevant entry in a family book relating to him”; personal attendance would be required; and the office may not be in operation due to “the recent conflict with ISIS, and current changes in … the documentation system”. He intends to lead evidence from himself, from other witnesses, from an expert, from background sources, and “to lodge country guidance authority”.
8. Following a case management review hearing on 2 March 2021, UT Judge Lindsley issued further directions for the parties to file and serve any further evidence within 3 months.
9. A transfer order was made to enable the decision of the UT to be completed by a differently constituted tribunal.
10. Country guidance is now contained in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC), published on 16 March 2022.
11. On 23 May 2022 the appellant filed further materials, including at pp 71 – 76 a skeleton argument presenting his case in terms of 3 issues, with submissions on why these should be resolved in the appellant’s favour.
12. By agreement, the appellant’s supplementary statements dated 17 May 2021 and 20 May 2022 were deemed to be adopted as further evidence-in-chief.
13. In his 2021 statement at [5] the appellant says that his father died of an illness in 2010.
14. In his 2022 statement at [4] the appellant says:
Even if the CSA office in Daquq could still issue a CSID or a replacement, I do not know the volume or page number of the relevant entry in the Family Book, and nor would my father.
15. Giving further evidence through an interpreter in Kurdish Sorani, the appellant said in response to questions from Mr Forrest that his father died in 2010. The passage above from the most recent statement was put to him and he said:
That was incorrect, I apologise, I have not mentioned that.
16. In cross-examination it was put to him that the statement had been read back to him and he must have realised then, if his father did die in 2010, that it made no sense. He maintained that there was a mistake in the statement, and he had not said that his father “would not know” the details in the Family Book. He further said that he had not attempted to obtain any identification documents from Iraq because he had no contact with anyone there, and even if he did, that would not help, because he would have to be present in person.
17. In response to my questions, the appellant confirmed that he went twice to obtain documentation from the Iraqi Consulate in Manchester, without success.
18. Neither representative had any further questions.
19. In course of submissions, Mr Mullen agreed that the case could usefully be approached in terms of the issues posed by the appellant, although he of course asked for a resolution to the contrary.
20. Having heard submissions from both representatives, I reserved my decision.
21. The issues are:
[1] has the appellant established that returning him to Iraq will infringe Article 3 ECHR because he does not have a civil status identity document, either CSID or INID;
[2] has it been established that the CSA office /authority in Daquq has transferred wholly or partially from the manual CSID system to the electronic INID system;
[3] even if the Daquq CSA office can still issue a CSID, has the appellant established that he could not obtain a replacement document.
22. The appellant has consistently said that he has no documents, no contacts in Iraq, and that he has tried unsuccessfully to obtain documents in the UK.
23. The FtT found the appellant generally not to be a credible and reliable witness. Those findings stand.
24. It is well established that an appellant, like any other witness, may be incredible in some aspects of his evidence but truthful on others. However, lack of documentation, although it may require its own evaluation, is part and parcel of the appellant’s account of himself and his family from the start. This is not a severable and novel claim, such as may happen, for example, where an appellant has been inhibited from disclosing a sexual orientation or has undergone a religious conversion.
25. The appellant’s evidence to the FtT, recorded at [49] of its decision, was that he did not know the number of his CSID and had never heard of a Family Book. He later modified his evidence to his family never having one because he is of Dom ethnicity.
26. It is almost inconceivable that anyone who grew up in Iraq would never have heard of a Family Book, given the centrality of such documentation to life in Iraq.
27. The appellant failed to show that he is of Dom ethnicity. There is no reason to think that his family did not have a Family Book, that system being universal in Iraq. I was not referred to evidence of exceptions.
28. Mr Forrest did not seek findings which went as far as that earlier evidence from the appellant. Rather, he asked me to find that he was not a well-travelled citizen and might plausibly not be able to recall details of his Book. However, the extremes to which the appellant went previously in his evidence tell against his reliability.
29. I also see some force in the submission by Mr Mullen that the appellant was not by his own account static within Iraq, but had moved home, and had some mobility in his job as a painter and decorator.
30. The appellant’s latest statement appears to accept that a Family Book did exist in Iraq.
31. That statement asserts that the appellant’s father would not know the details either; a strange thing to say, if he has been deceased for over a decade.
32. There is always scope for error in taking and recording a statement, particularly through an interpreter, and I do not find this point quite as conclusive as was contended for the respondent; but it is another adverse indicator.
33. There is no reason to doubt that the appellant has been twice to the Iraqi Consulate. However, like any national authority, the appellant would have to provide reliable details before officials could be of any assistance; and the evidence does not show that the appellant was likely, in good faith, to provide such details. The negative outcome from the Consulate is thus unsurprising and does not advance the appellant’s case.
34. Drawing all the above reasons together, the appellant falls short of establishing, even as a reasonable likelihood, that he does not have identity documents available to him, or within his control.
35. The appellant also does not show that he has no family or other contacts in Iraq to assist him in recovering or replacing documents, if that need were to arise.
36. The appellant falls short of making his case on the first issue. The further issues fall away.
37. The decision of the FtT having been set aside, the UT substitutes the following decision: the appeal, as originally brought to the FtT, is dismissed.
38. An anonymity direction was made earlier in the proceedings. It is doubtful whether there is any ongoing justification for departure from open justice, but as the matter was not mentioned at the hearing, anonymity is maintained at this stage.

H Macleman

26 May 2022
UT Judge Macleman

NOTIFICATION OF APPEAL RIGHTS
1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent.
2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).
3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).
4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).
5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.
6. The date when the decision is “sent’ is that appearing on the covering letter or covering email.