Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09973/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2018
On 14 January 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

Between

MR BLA
(ANONYMITY DIRECTION MADE)
Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr Smith, Kesar & Co Solicitors
For the Respondent: Ms Willocks-Briscoe, Senior Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, born on 1 April 1999 and a citizen of Iraq, appealed to the First-tier Tribunal against the decision of the respondent dated 21 July 2017. In a decision and reasons promulgated on 26 September 2018 Judge of the First-tier Tribunal Geraint Jones QC dismissed the appellant's appeal.
2. The appellant appeals with permission on the following grounds:
(1) Ground 1: Failure to give reasons why there was no appeal on protection grounds.
(2) Ground 2 -Failure to adequately assess the reasonableness of internal relocation;
(3) Ground 3 - Failure to make independent findings on claimed loss of contact with the family;
(4) Ground 4 - Failure to adequately assess the appellant's ability to obtain a replacement CSID within a reasonable period of time.
Error of Law Hearing
3. Mr Smith submitted that the judge had found that it was a matter for the Tribunal as to whether paragraph 353 of the Immigration Rules had any application. The appellant, in a letter dated 17 December 2016, had submitted that he feared persecution in Iraq and should be considered a refugee and further submitted that his human rights would be breached under Articles 2, 3 and 8 if returned to Iraq. In the decision, dated 21 July 2018, the respondent treated the application as further submissions under paragraph 353 of the Immigration Rules and determined that they did not amount to a fresh claim. However it has been the appellant's case that the respondent was wrong to characterise that application as further submissions when the appellant's application was in fact an application for further leave to remain.
4. As summarised in the decision of the First-tier Tribunal, the appellant had arrived in the UK on or about 11 September 2015 and claimed asylum on 18 September 2015. The respondent refused that claim on 14 March 2016 but the appellant was granted discretionary leave to remain as a minor, until 1 October 2016. The appellant appealed the refusal of asylum and his appeal against that refusal was dismissed on 18 November 2016. The appellant successfully appealed to the Upper Tribunal and his case was remitted to the First-tier Tribunal. The remitted appeal, before Immigration Judge Veloso on 1 September 2017, dismissed the appellant's appeal in a decision promulgated on 25 September 2017.
5. In the interim, the appellant had made an application for further leave to remain, in an application dated 17 September 2016. Judge Jones accepted that the letter accompanying the application from the appellant's representatives stated that the appellant still feared persecution and a violation of his human rights if returned to Iraq.
6. Mr Smith submitted that, having accepted that the application for further leave was just that, rather than further submissions under paragraph 353, in respect of the human rights application, the judge could not rationally refuse to accept that an application for asylum had also been made. Mr Smith relied on the respondent's refusal letter which referred to the appellant's "asylum and human rights claim". Mr Smith submitted that in effect the appellant's claim had been a protection claim, as it was Article 15(c) that the appellant was relying on specifically, rather than asylum. It was Mr Smith's submission that there was a protection claim and a human rights claim. There was a refusal of the asylum/protection claim and this was a refusal which had attracted a right of appeal under Section 82 and therefore the judge ought not to have limited the scope of his consideration.
7. It was further submitted that having, incorrectly, purported to limit jurisdiction to exclude the protection claim (and Mr Smith submitted that he did not make submissions on this part of the appeal before the First-tier Tribunal) the judge went on to find, at [19], that:
"There might be a real risk of indiscriminate harm to the appellant if he was returned to his home area given that it may fall outside the IKR."
8. In respect of the second ground, it was submitted that the First-tier Tribunal failed to adequately assess the reasonableness of internal relocation. This arises in the context of the protection claim whereas the judge had already limited the scope of the appeal to human rights. It was Mr Smith's submission that a proper assessment of the reasonableness of internal relocation had to take account of a raft of factors including the appellant's Kurdish ethnicity, Sunni identity, inability to speak Arabic, absence of family or connections in Baghdad, the profile of a returnee from the west, the appellant's relatively young age (especially in the context of having left Iraq as a child) and the up-to-date security situation in Baghdad. As was clear from BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) these factors must be assessed cumulatively.
9. It was Mr Smith's submission that although the judge then went on, in effect, to deal with the Article 15(c) claim, that error was material in restricting the appeal as Mr Smith was unable to make full submissions including in relation to the ability to relocate. Mr Smith noted that although it was recorded, at [20], that the representative did not argue that it would be unreasonable per se for the appellant to relocate to Baghdad Mr Smith stated that that was only in the context of the fact that he had been limited to not arguing the protection claim.
10. Mr Smith submitted that having found that at [19] that the appellant was at a real risk of indiscriminate harm in his home area the judge accepted that the appellant's home area fell outside the IKR. Mr Smith relied on headnote 13 of AA (Article 15(c)) Iraq CG [2015] UKUT 544 where it was found as follows:
"13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the 'Central Archive', which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear."
11. It was Mr Smith's submission that it was clear from paragraph [8] of the First-tier Tribunal's decision, that it was accepted that although Judge Veloso's decision was on the basis that the appellant came from a village near to Gwer within the province of Erbil in the IKR, that was not geographically correct. Judge Jones accepted therefore (and Ms Willocks-Briscoe did not dispute this) at [19], that the appellant's home area fell outside the IKR.
12. In respect of ground 3 it was submitted that the judge ought to have made independent findings on the claimed loss of contact with the family as the findings of Judge Veloso, which Judge Jones QC adopted on the basis of Devaseelan, were made in the context of the appellant coming from the IKR which is "virtually violence free." Mr Smith submitted that this is a world of difference as the appellant's home area was actually an area of armed conflict and on this basis there should have been a separate assessment (as the appellant had argued through his representatives in paragraphs 33 and 34 of the skeleton argument before the First-tier Tribunal).
13. Mr Smith argued that even if ground 3 was not made out it was sufficient, given the findings on jurisdiction and the fact that the judge had found his home area to be in an area of conflict, that the appellant could not be expected to relocate. As regards ground 4, it was submitted that the judge failed to adequately consider the appellant's ability to obtain a replacement CSID within a reasonable period of time and he relied on AA (Article 15(c) Iraq CG [2015] UKUT 544 specifically from [177] that "for reasons identified in the section that follows below, at the present time the process of obtaining a CSID from Iraq is likely to be severely hampered if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring."
14. Ms Willocks-Briscoe did not specifically submit that the judge did not err in finding that there was jurisdiction in human rights and not the protection claim. Rather, it was her submission that any error was not material given that the judge had gone on in any event to consider in practical terms the issue of international protection under Article 15(c). It was her submission that the case turns on the issue of the CSID.
15. Although it had been submitted, on behalf of the appellant, that there were no independent findings on contact and that there needed to be given that the appellant submitted that the findings of Judge Veloso were based on the fact that the appellant was from the IKR whereas it was now accepted that he came from an area of conflict, Ms Willocks-Briscoe submitted that this was to misunderstand the findings of Judge Veloso. In Judge Veloso's decision and reasons promulgated on 25 September 2017, at [51] through to [54], the judge made a number of adverse credibility findings which Ms Willocks-Briscoe submitted were not concerned with whether or not the appellant was in an area of conflict. The findings concerned the credibility of appellant's evidence including the fact that he had provided an Iraqi telephone number in his screening interview only to subsequently state that he did not have one and that he had made it up. Judge Veloso gave detailed reasons for not accepting the appellant's evidence in relation to the contact numbers including that the appellant on his own evidence had three to four days' notice of departure and the judge found it incredible that he would not have taken the paper with him with the number on it and the judge, for the comprehensive reasons she gave, found it not credible that the appellant did not have a mobile number and did not know his parents' contact numbers and found that he has been in contact with his family and further found it not credible that the appellant would not have had the means of contacting his family.
16. Ms Willocks-Briscoe submitted therefore that to say these findings were flawed because they were based on a misunderstanding in relation to where his home area was, was not sustainable. Ms Willocks-Briscoe also relied on the fact that, as recorded as [15], the appellant made no reference in cross-examination in relation to Judge Veloso's findings about contact with his family when this was put to him. Although he denied having any contact with his family since at least 2014, he failed to address the reasons given by Judge Veloso for not accepting this evidence.
17. It was Ms Willocks-Briscoe's submission that there were measures in place in Baghdad with respect to CSID cards and in any event the judge had relied on the alternate submission that his family would provide him with his CSID. It was Ms Willocks-Briscoe's submission that looking at the determination holistically even if there was an error in the judge's consideration of jurisdiction that was as far as it goes and given the lack of evidence to challenge Judge Veloso's decision the decision must stand.
18. In reply Mr Smith submitted that Judge Jones did not deal with the internal relocation matter adequately and had not addressed the factors set out in BA (Baghdad) including the risk of kidnap due to his Kurdish ethnicity. Although the appellant's ID card is relevant it was not the determinate factor in respect of internal relocation. Although it was said that Judge Veloso's findings on contact were made on credibility, it was not possible to divorce the credibility finding from the fact that it is now accepted that this took place in an area of conflict whereas those findings were made in the context that it was a secure area and the reasonableness or otherwise of someone's evidence about contact had to be assessed in that context. Mr Smith relied on a AAH (Iraqi Kurds - internal relocation) Iraq CG UKUT 2012 and that there was no prospect of a replacement ID card from Baghdad if you are not from there.
Discussion
19. Whilst Judge Jones may have erred in his conclusion that there was no protection appeal before him, whilst finding that there was a human rights claim, he nevertheless went on to consider that protection claim in substance. Any error was therefore not material.
20. In relation to ground 2, it was argued that the judge's consideration of the reasonableness of internal relocation was incorrectly considered within his human rights assessment as opposed to within the confines of an international protection claim and that a proper assessment of the reasons of internal relocation had to take into account a raft of factors including the appellant's Kurdish ethnicity, Sunni identity, the ability to speak Arabic, absence of family or connections in Baghdad the profile of a returnee from the west, the appellant's relatively young age and the up-to-date security situation in Baghdad.
21. However, the judge considered, at [20], that it would be entirely reasonable to expect the appellant to relocate, live and work and provide for himself in Baghdad. Although Mr Smith argued that he was unable to make his full submissions because the appeal was limited to human rights, the judge specifically recorded that Mr Smith's argument was that the appellant does not have and would be unable to obtain a CSID card and would therefore be homeless and destitute (and I note that Mr Smith's skeleton argument before the First-tier Tribunal in relation to relocation to Baghdad, made submissions almost exclusively on the CSID card issue). This demonstrates that Mr Smith did make submissions, which were considered, about the ability or otherwise to relocate to Baghdad. Whilst the judge may have mischaracterised the appeal rights in form, in substance he fully considered the Article 15(c) claim including all the evidence in support of that claim. No material error is disclosed in ground 1.
22. The judge's consideration at [20] onwards considered a number of the factors including that the judge was satisfied that the appellant has the means to contact his family in Iraq and the judge was satisfied that the appellant had sufficient family support and assistance. The judge had a wealth of background material before him, together with the country guidance case law as set out in the appellant's extensive bundle, which the judge referenced, including noting that the only material from that bundle referred to before the First-tier Tribunal was the decision of Judge Veloso and the appellant's witness statement.
23. Nonetheless, a fair reading of the decision of the First-tier Tribunal decision indicates that the judge had the relevant factors in mid including as set out in the country guidance case law. Although Judge Jones may not have individually set out the factors in BA (Returns to Baghdad) including whether a returnee from the west is likely to be perceived as a potential for kidnap, the judge had the relevant factors in mind and the judge found that the appellant has the means to contact family members in Iraq and will have sufficient family support and assistance.
24. The judge's assessment and findings in respect of internal relocation could not be said to be irrational and was adequate. I have reminded myself what was said in MD (Turkey) v SSHD [2017] EWCA Civ 1958 that adequacy means no more nor less than that. It is not a counsel of perfection. Still less should it provide an opportunity to undertake a qualitative assessment of the reasons to see if they are wanting, perhaps even surprising, on their merits. The purpose of the duty to give reasons, is in part, to enable the losing party to know why he has lost. No material error is disclosed in ground 2.
25. Although in ground 3 it was submitted that the judge failed to make adequate findings in respect of the claim of loss of contact with the family, that submission is without any merit as Judge Veloso reached comprehensive findings on credibility as to why the appellant's inconsistent and contradictory evidence, including about having telephone numbers or not having telephone numbers for his family, was not accepted together with a number of other credibility findings why the appellant's evidence was rejected.
26. Mr Smith's submission, that this had to be considered in an entirely different context of someone fleeing an area of conflict which it was now accepted the appellant came from, does not bear scrutiny. This is not least the case given that the judge records at [15] in cross-examination that when the findings made by Judge Veloso, concerning the contact with his family, were put to the appellant, there is no indication that the appellant made any reference to the fact that he came from an area of conflict was relevant to the consideration of his account of loss of contact. Mr Smith made no submission which might explain why the fact that it is accepted that the appellant came from an area of conflict would make a difference to him telling the truth or not. No material error is disclosed in ground 3.
27. The relevant question therefore is the issue of the CSID. This was considered in AAH (Iraqi Kurds - internal relocation) Iraq CG [2018] UKUT 00212 as follows:
"Section C of country guidance annexed to the Court of Appeal's decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is supplemented with the following guidance:
(1) Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:

(i) whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or on expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, or not of any assistance in 'tracing back' to the family record and are confiscated upon arrival at Baghdad;

(ii) the location of the relevant civil registry office. If it is an area held, or formally held by ISIL, is it operational?

(iii) Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relevant relative is from the mother or father's side. A maternal uncle in possession of a CSID would be able to assist in locating the original place of registration of the individual's mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be born in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they would be of assistance. A woman without a male relative to assist with the process of the redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all."
28. Mr Smith relied on [177] of AA (Iraq) that the process of obtaining an CSID is likely to be "severely hampered" for someone coming from an area within Article 15(c) serious harm is occurring and it was not disputed that AAH (Iraqi Kurds - internal relocation) [2018] establishes that a returnee must be able to obtain the CSID within a reasonable time frame.
29. However, it was Judge Jones' finding, including in the alternative, that the appellant's family could provide the existing CSID to the appellant. The findings of both Judge Veloso and Judge Jones, that the appellant either does have or could have contact with his family members are sustainable.
30. Judge Jones made further evidence based findings, at [22], that there was 'no reason whatsoever' why the appellant could not obtain the CSID he left behind (it being the appellant's evidence, at paragraph 2 of his witness statement, that he had an ID card in Iraq which his mother looked after). The fact that it is accepted the appellant's home area is in an Article 15(c) area (which Judge Jones had accepted and was therefore aware of) does not negate the judge's findings.
31. Although Mr Smith relied on what was said including at paragraph 177 of AA (Iraq) that the process of obtaining a CSID from Iraq is likely to be severely hampered if the person is from an area where Article 15(c) serious harm is occurring, this must be seen in the context of the subsequent discussion in AA (Iraq) which highlighted (including at paragraph 187) specific difficulties if an individual is 'unable to go to the Civil Status Affairs office of their home Governorate because it is in an area where Article 15(c) serious harm is occurring.'
32. The reference to 'severely hampered' in the country guidance is therefore made in relation to having a replacement CSID issued, whereas the appellant has confirmed he already has one with his family. In that context, and in the context of Judge Jones' findings that the appellant was or could be in contact with his family and would have the availability of family support Judge Jones' findings were available to him.
33. Considering all the factors including in AAH, (there was no suggestion in the appellant's evidence that his ID card at home was expired. However, even if it was AAH notes that if an individual possesses an expired CSID obtaining a new CSID should be 'straightforward') there is nothing that was not adequately considered by Judge Jones including his key findings that the appellant is or could have contact with his family and could get his own or a replacement CSID with his family's assistance.
34. The decision of the First-tier Tribunal does not contain an error of law and shall stand.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date: 28 December 2018

Deputy Upper Tribunal Judge Hutchinson

TO THE RESPONDENT
FEE AWARD

No fee was paid or payable so no fee award is made.

Signed Date: 28 December 2018

Deputy Upper Tribunal Judge Hutchinson