Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09773/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 28 March 2017
On 13 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

Nabaz Rasol Mohammed
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr A Alexander of Counsel instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr C Avery, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is an Iraqi national from Kirkuk born on 21 March 1994. He arrived in this country on 11 February 2016 and applied for asylum. The Secretary of State refused the application on 8 August 2016. The appellant appealed the decision and his appeal came before First-tier Judge Twydell. She heard oral evidence from the appellant who speaks Kurdish (Sorani dialect).

2. The judge summarised the appellant’s case as follows:

“15. The appellant claimed his parents were killed in an explosion in Kirkuk market place on 25th May, 2015. He discovered this when a stranger picked up his father’s telephone at the scene of the incident and called the appellant to inform him. In addition, the appellant claimed that also in 2015 the appellant though one of his neighbours, called Yacoub, was involved in Daesh (ISIS) due to him speaking Arabic, carrying weapons and a grenade. The appellant reported him to the police who stated that there was nothing they could do. Yacoub knew it was the appellant who reported him and he tried to kill the appellant a few times, but he failed although he made threats to kill him. The appellant thought he was connected to ISIS because he had a power and authority to ask someone to kill a person very easily. In his interview (Q67) he claimed Yacoub tried to kill him and the threat was made around July or August, 2015. In light of this he was advised by his maternal Uncle to leave Iraq which he did with his assistance.

16. The appellant left Iraq legally with his passport which was subsequently taken or lost. He did not have his Civil Status Identity Document (CSID) with him. He went to Turkey and then by sea/ferry to Athens to a camp in Greece. He then travelled through Europe, including Germany and France remaining in the latter for almost two months. He did not claim asylum in any of these countries as his life was not guaranteed as well in those counties (Q77 of the interview).

17. He claims to have a well-founded fear of being persecuted by ISIS if he returns to Iraq based on his imputed political opinion. Further, he is from a contested area of Iraq (Kurkuk) and he is an undocumented Iraqi of Kurdish ethnicity fleeing persecution. Finally, he fears risk of serious harm owing to the high level of indiscriminate violence and is therefore eligible for humanitarian protection under Article 15(c) of the Qualification Directive. He does not have a viable internal relocation available to him due to the current security situation in Iraq and because he is undocumented.

18. The basis of his claim for humanitarian protection is his real risk of suffering serious harm as a result of indiscriminate violence in Iraq (paragraph 339C of the Rules).”

3. While the respondent accepted that the appellant was from Kirkuk large parts of his claim were placed in issue. On the question of the feasibility of the appellant’s return to Iraq account was taken of AA (Article 15(c) Iraq CG [2015] “AA”) and it was accepted that if the appellant did not have a current or expired Iraqi passport or a laissez passer he could not be returned to Baghdad. However in the light of HF (Iraq) v Secretary of State [2013] EWCA Civ 1276 an international protection claim could not succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation. The appellant did not therefore qualify for international protection on the grounds his removal was not currently feasible.

4. While there was indiscriminate violence in Kirkuk, it was not shown that the appellant would face serious harm throughout the whole of Iraq from indiscriminate violence. Although it was accepted that a lack of passport and CSID would create some difficulties for him, the appellant could reasonably be returned to the Iraqi Kurdish Region (the IKR) which was violence free. He could obtain entry for ten days as a visitor and he was unlikely to be removed after that period if he had registered with the authorities and obtained work. It would not be unduly harsh for him to travel to the IKR where he could obtain a CSID. The appellant could not make out a claim under Article 2 or Article 8 and Appendix FM. The judge rejected large aspects of the appellant’s claim and her negative credibility assessment has not been the subject of challenge in this case.

5. For example the appellant claimed that his parents had been killed in the Chakfroshakan Bazaar on 25 May 2015. The judge did not accept that his parents had been killed as claimed. The appellant also claimed he had a neighbour called Yacoub who had connections with ISIS and who had tried to kill him two or times. Following the appellant reporting the matter to the police Yacoub threatened the appellant. In paragraph 44 of her determination the judge rejected the appellant’s claim stating she did not accept that Yacoub threatened or attempted to kill the appellant in the manner claimed or that he was a member of ISIS.

6. The judge noted the appellant’s claim that after his parents had been killed he lived with his maternal uncle in Rahim Awa in Kirkuk but that he used to return home to check on his parents’ house in Faalaq. His oral evidence was inconsistent – he said he did not return home as he had been too frightened.

7. The judge makes the following findings in respect of contact between the appellant and his maternal uncle in paragraph 45 of her determination.

“45. The appellant states his maternal Uncle arranged for him to leave Iraq. In his interview (Q62) he states that after his parent’s death he told his maternal uncle he could not live in the city and asked him to find a solution. Against this backdrop of the uncle being the only surviving relative of the appellant, and the fact his Uncle arranged his journey across Europe (Q 73 of interview), the appellant stated in his oral evidence he could not recall when he last spoke with or had contact with his Uncle, did not know his telephone number, did not know how to contact him and had not let him know he was well. He confirmed he had not been in contact with him since he left Iraq. However, when asked in his interview (Q11) whether he had been in contact with anyone since he left Iraq, the appellant stated his maternal uncle. That was a clear question with a spontaneous answer from the appellant. In the circumstances I find this evidence incredible. The uncle offered for the appellant to stay in his house in Iraq after the death of the appellant’s parents and made financial and other arrangements for the appellant to make his journey. That indicates to me a close and strong relationship. It is simply inconceivable there would not have been contact between these two men to check on the safety and progress of the appellant across several countries and in perilous circumstances. I find the appellant’s answer to Q 11 of the interview the accurate position namely he has been in contact with his maternal uncle since he left Iraq.”

8. Under the judge’s assessment of future fear the judge stated as follows:

“46. In his Initial Contact and Asylum Registration Form, the appellant gives the basis of his asylum claim namely that he ran away from Iraq because his parents were killed although he did not know why or by whom. Further, he could not go back as he feared the people who killed his parents although he had no information about them. In his interview he was asked why he decided to leave Iraq and the appellant stated (Q 71): ‘A place where father and mother don’t exist anymore, it is empty for me.’ Based on this evidence, the reason for him leaving and not returning to Iraq relates to the sad loss of his parents rather than fear of persecution if he returns to that country. Further, although he does not know who killed his parents, he does not suggest that ISIS were the perpetrators or that any other terrorist or other group were responsible that would result in a fear of persecution for the appellant if he returned.

47. The appellant was interviewed on 2nd August, 2016. At Q22 he states he feared ISIS, stating, ‘...you fear for your life you cannot be sure you will survive even for a second or be safe’ At Q24: ‘I could not survive there because I lost my family, I lost my parents, that is the reason.’ A Q65 he states: ‘Daesh has all the means of persecution, killing, explosion, executions so that’s why I fear them. You can’t feel safe while they are there and they don’t consider human rights at all.’ These statements by the appellant are general statements relating to ISIS and there is no link with the appellant that ISIS will persecute him if he returned to Iraq. He confirmed he had not personally faced any problems from Daesh (Q66). It was only when he was asked why Daesh would be interested in him specifically if he returned to Iraq that he referred to threats from Yacoub (Q67). I am surprised he did not refer to Yacoub earlier on in the interview, without prompting, rather than as a result of a specific question. Also, when he was asked why he decided to leave Iraq (Q70) he stated it was a place that was empty for him, due to his parent’s death. There was no mention of the threat to him from ISIS. In his interview (Q66) he confirmed he had not personally faced any problems from ISIS in Iraq. Based on this evidence I do not accept the appellant was threatened by Yacoub and/or ISIS. I find the alleged link between Yacoub and ISIS too tenuous in the context of this case. There is no evidence of ISIS making threats to the appellant, or even contacting him, in spite of his residence in Kirkuk, a recognised contested area.”

9. The judge accepted, as the respondent had, that it would not be possible to return the appellant to Kirkuk. She set out in her determination the lengthy headnote from AA.

10. She considered and rejected the appellant’s asylum claim in the following extract from her determination:

“52. The appellant states he does not possess a passport or a CSID and that he could not return to Iraq as an undocumented person. In his screening interview he stated he lost his documents. In his oral evidence he stated that when he left Iraq a smuggler took his passport when he was in Turkey. However, he also stated he had everything in a bag which fell into the sea so he lost his passport. Further, he also stated the smuggler threw his bag into the sea. Regarding his CSID he stated in oral evidence that he left his CSID in his parent’s house in Faylaq and did not go back there as he was too scared for his life. But he stated in his witness statement (page 63 paragraph 7) that after his parents died he went back to check on the house. He also confirmed in his oral evidence he did not obtain a new passport because he did not want to return to Iraq (oral evidence) because he had suffered. Further, he had no intention of going back so had not made any application for a passport. I find the appellant’s reasons as to why he does not currently possess either a passport or CSID contradictory in light of the evidence detailed above. That goes to his credibility. However, it is the position the appellant does not current have in his physical possession either his passport or his CSID and the respondent accepts the appellant’s return to Iraq is not currently feasible because he does not have relevant documentation. I agree with the respondent when she relies on the case of HF (Iraq) and Others –v-Secretary of State for the Home Department (2013) EWCA Civ 1276 - which states that an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation. The appellant does not succeed on this basis and he does not qualify for international protection on the ground his removal is not currently feasible.

53. The appellant is a young single man, without a family but with a supportive maternal uncle in Kirkuk. The appellant does not speak Arabic but has undertaken farming and odd jobs as employment. He is generally fit with the exception of a diagnosis of asthma. I consider section C of the headnotes of AA above. The appellant states he has no documentation save that his CSID is in his late parent’s home in Kirkuk. I accept it may be difficult for the appellant to access that document immediately, but he may be able to do so over a period of time. His parent’s house is less than an hour from his Uncle’s house. However, that does not give the appellant an immediate solution. Paragraph 12 of section C above states that if the appellant does not have a CSID he will need to go to Central Archive in Baghdad where he can apply for formal recognition of his identity. If that is not possible I consider, as an alternative, section D above and the general rule in (para 14) ‘....it would not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad...’ I have considered the requirements of paragraph 15 when coming to a decision of whether it would be unreasonable or unduly harsh for the appellant to relocate to Baghdad and find he would have some difficulty in doing so. I therefore consider whether he could relocate to the IKR. The appellant is not from the IKR but from Kirkuk. Although the authorities do not require a current or expired passport or laissez passer, relocation to this region is not automatic. However, in my view it is achievable. Under paragraph 19 he will be able to obtain a visitor entry for 10 days until he finds employment. That paragraph also states there is no evidence the authorities proactively remove Kurds from the IKR whose permits have come to an end. The appellant will be able to travel by air to that region e.g. Irbil, he is male which gives him a greater chance of employment and he has experience as a farm hand (Q17 of interview) and as an odd job man. Further the IKR is virtually violence free. As the appellant stated in his interview he has been in contact with his Uncle since he left Iraq and I find he will be able to contact him for financial and other assistance to assist him with relocation upon his return to Iraq. I make this finding because his uncle arranged for the appellant to travel from Iraq by assisting him financially and otherwise. As stated earlier I do not accept the appellant is not in contact with him. Further, the respondent states that Kurdish (Sorani) is widely spoken in norther Iraq and is the official language of the IKR. This is not challenged by the appellant and I find the appellant would not have any language difficulties when returning to this region. I come to the conclusion it would not be unduly harsh for him to relocate to the IKR.”

11. In relation to humanitarian protection and Articles 2 and 3 the judge made the following findings:

“58. When considering whether the appellant succeeds, regarding Articles 2 and 3, I look at the risk to the appellant of return to Baghdad as at the date of the hearing. AA does not support the appellant’s case that he is at risk of Article 2 or 3 ill treatment on return to Baghdad. When referring to this case I have to ensure that AA reflects the current situation regarding return of the appellant to Baghdad as at the date of the hearing. I have been supplied with country guidance which I may not follow if the appellant’s case relies on sufficiently different risk factors or where the background country situation has significantly changed.

59. In AA the Tribunal considered the risk for Kurds, without established connections to Baghdad, and determined they were not in an enhanced risk category regarding attacks or displacement, or was there a real risk of harm arising solely because a person was Sunni or Shia.

60. At paragraphs 188 – 203 the Tribunal in AA considered the conditions in Baghdad with utilisation of an expert Dr Fatah. It was determined that the economic is in a poor condition, there is a 2.8% level of below the poverty line, only 50% of the population participate in the workforce and it is more difficult for women who depend on their male family members in a male headed household. Men were employed proportionately more than women and living conditions were considered with access to electricity for 16 hours a day, public drinking water and some health service. The majority of IDP’s generally (not peculiar to Baghdad) live in temporary shelters with one in five living in unfurnished buildings with no basic supplies. However, it was determined that; ‘this generality’ did not hold good for Baghdad.

61. The appellant has referred me to the Generic Report of Sheri J Laizer (pages 1-61 of the bundle) dated 8th April, 2016. It contains a large amount of historical information relating to Baghdad and the IKR. It confirms the requirements of entering the IKR for non residents. I take this report into account when coming to a decision in this case and note that conditions are not ideal in either Baghdad or the IKR for someone in the appellant’s position but that is not the best which I have to apply. The Upper Tribunal found that conditions and circumstances in Iraq did not amount to serious harm within the scope of Article 15(c) as detailed in the headnote to AA. That case was heard on 18th and 19th May 2015, a matter of eleven months prior to the report by Sheri J Laizer. The information provided in this case and this report is slightly different but not sufficiently so in my view for me to justify any departure from AA 2015. Further, AA 2015 is a reported case making findings whereas the report is highlighted particular evidence that (understandably) assists the appellant in his case. It has not been suggested to me that there are additional risk factors that were not considered in the above case or that I should dis-apply AA 2015.

62. Having considered all the evidence I do not find the appellant will be at risk in Baghdad. Further, I do not accept that conditions in Baghdad have deteriorated since the case of AA. Further, the circumstances in Iraq, as at the date of the hearing, do not amount to serious harm to come within Article 15(c) and neither is there a real risk of those circumstances reached the Article 2 and 3 threshold.

63. The appellant is not fluent in Arabic. I accept the appellant does not have family or friends in Baghdad, but I do not accept he is not in contact with his uncle who will be able to assist him on his return to Iraq. I d not accept he is at risk in Baghdad merely because he is a Sunni Kurd from Kirkuk. He has a greater chance of obtaining employment because he is male and has an employment history. The appellant can return to Baghdad and stay there or travel to IKR if he chooses to do so.

64. Regarding Article 3 I apply the case of N –v- SSHD (2005) UKHL 31 – and find that returning the appellant to Iraq would not deprive him of medical treatment or send him home to an early death. The appellant suffers from asthma with occasional pains in his chest and breathlessness. He stated, in the Initial Contact and Asylum Registration Form, he has had chest pain since childhood. He last saw a doctor in Iraq seven months prior and is not currently on medication. There are medical facilities in Iraq. He does not succeed on Article 3 on the basis of his medical condition.“

The judge then rejected the appellant’s claim under Article 8 and the Rules finding that there would be no significant obstacles to the appellant’s integration into Iraq. There were no exceptional or compelling circumstances to consider Article 8 outside the Rules. The appeal was dismissed.

12. There was an application for permission to appeal and permission was granted by a First-tier Judge on 6 February 2017. It was found arguable that the judge had erred in failing properly to apply the country guidance and had failed to take into account a material factor of the appellant not having a CSID “in respect of whether the appellant could internally relocate to either the IKR or Baghdad.” The respondent filed a response on 22 February 2017. It was submitted that when the determination was read as a whole it was clear that the judge had concluded that the appellant could access his CSID. The judge had based this finding on her conclusion that the appellant was in touch with his uncle who could access the document which would then enable the appellant to obtain a passport or laissez passer. Under the circumstances it would be possible for the appellant to relocate as decided by the judge.

13. Counsel submitted that the judge had clearly failed to apply the country guidance properly. She had failed to take into account a material factor when determining whether the appellant could internally relocate to either the IKR or Baghdad, namely the fact that the appellant did not have a CSID. The uncle could not provide an immediate solution and was not relevant. The appellant could not return to his home governorate to obtain the CSID. Paragraph 12 of the headnote in AA made it clear that the appellant should as a general matter be able to obtain a CSID “from the Civil Status Affairs Office” for his home governorate and the evidence did not demonstrate that the “central archive” which existed in Baghdad was in practise able to obtain CSIDs to those in need of them. The appellant could not return to his home governorate. The judge’s reasoning was tainted. The appellant had no CSID, spoke no Arabic and had no friends or family in Baghdad. He had no sponsor to assist him renting a hotel or finding accommodation. He was in a minority.

14. Mr Avery submitted there was no fundamental error and the First-tier Judge had directed herself by reference to AA. The appellant could relocate. The majority of the appellant’s claim had been rejected. She had found that the appellant was in contact with his uncle, her findings in paragraph 53 of the determination had not been challenged. She had found two possible ways for the appellant to get a CSID in paragraph 53. In addition Mr Avery pointed out that there was no reason why the appellant could not call his uncle to post the CSID to him in the United Kingdom. The judge had fully set out the headnote in AA in her determination and it was made clear in paragraph 20 of the headnote that the issue of return to the IKR would be fact-sensitive. The judge had properly considered the matter and had properly applied the country guidance. There was no material error of law and his uncle could get the appellant a CSID for the appellant and/or send it to him.

15. Mr Alexander accepted that the judge had referred to the case of AA but had not applied it. As was said in paragraph 187 of AA the evidence did not demonstrate that the “central archive” which exists in Baghdad is in practise able to provide CSIDs to those in need of them. While the question of return to the IKR was fact-sensitive the appellant would have no work qualifications or work experience to fall back on in the IKR. He had no friends or family there. The determination was flawed.

16. At the conclusion of the hearing I reserved my decision. I remind myself that I can only interfere with the judge’s determination if it was materially flawed in law.

17. The judge, as I have said, made a largely negative credibility assessment in respect of the appellant and those findings have not been the subject of challenge.

18. This does not appear to be a case where the appellant has no CSID – the CSID is in the appellant’s parents’ home in Kirkuk. The judge in paragraph 53 refers to the location of the appellant’s parents’ house and its relative proximity to the appellant’s uncle’s house. It was clearly in her mind that the uncle could assist with finding the appellant’s CSID in his late parents’ house and reuniting the appellant with it. The judge refers to a period of time but as Mr Avery points there would appear to be no reason for that period of time to be lengthy.

19. The judge then turned to consider the possibility of obtaining recognition of his identity in Baghdad and took into account paragraph 15 of AA when considering whether such a return would be unduly harsh. She acknowledged that the appellant would have some difficulty in relocating to Baghdad and then turned to consider relocation to the IKR and again makes express reference to the country guidance. She considered his employment experience and other relevant matters and the important fact that he would be able to contact his uncle for financial and other assistance. He spoke the official language of the IKR. Bearing in mind the question of travelling to the IKR will be fact-sensitive I find no evidence that the judge misdirected herself in law when considering the issue of internal relocation.

20. I do not find on the facts of this case that the First-tier Judge was wrong in concluding as she did. Each case must be determined on its own particular facts. The appellant’s uncle has access to his late parents’ home and the judge found that the appellant’s CSID was there. He would have the support of his uncle on return and on relocation to the IKR. The judge had fully in mind the country guidance and applied it to the facts of the case before her. The determination is lengthy and detailed and her factual assessment is fully set out and well-reasoned.

21. I am not satisfied that the grounds raise a material error of law on asylum or humanitarian protection grounds. No challenge was made to the judge’s decision in relation to Article 8. Accordingly the judge’s decision to dismiss the appeal on all grounds is confirmed.

Notice of Decision

Appeal dismissed.

Anonymity Direction

The judge made no anonymity direction and I make none.

TO THE RESPONDENT
FEE AWARD

The judge made no fee award and I make none.

Signed Date: 11 April 2017

G Warr, Judge of the Upper Tribunal