Tribunal decisions

The decision

IAC-AH-CO-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10595/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20th February 2017
On 27th February 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE JUSS

Between

[D K]
(ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms K Wass (Counsel)
For the Respondent: Mr K Norton (Senior HOPO)

DECISION AND REASONS

1. This is an appeal against the determination of First-tier Tribunal Judge Walker, promulgated on 10th November 2016, following a hearing at Hatton Cross on 1st November 2016. In the determination, the judge dismissed the appeal of the Appellant, whereupon the Appellant subsequently applied for, and was granted, permission to appeal to the Upper Tribunal, and thus the matter comes before me.
The Appellant
2. The Appellant is a male, a citizen of Iraq, who was born on 1st January 1987. He appealed against the decision of the Respondent dated 14th September 2016, rejecting his claim to refugee asylum status, humanitarian protection, and human rights violations under paragraph 339C of HC 395.
The Appellant's Claim
3. The Appellant's claim is that he has fought on behalf of the Kurdish Peshmerga as a volunteer against the Daesh (Isis) insurgence in Iraq. He was involved in action at Jalawla and Mala Abdulla. He had a friend called Sarbaz Ali who had also joined the Peshmerga on a voluntary basis. Sarbaz took photographs and videos of Daesh fighters they had killed and they put them on the internet. As a result, Sarbaz and the Appellant received death threats from Daesh sources.
4. On 25th September 2015 Sarbaz was shot dead near his home, and before his death he had received threatening messages posted on his Facebook page, and the Appellant claimed that these messages came from sleeper cells of Daesh or family members of the killed Daesh fighters shown in the photos. The Appellant had heard of killings of Peshmerga volunteers and even Peshmerga officers by unknown people. The Appellant now fears that he will be targeted as the photographs and videos clearly show his involvement in the killing of members of Daesh.
The Judge's Findings
5. The judge held that, although the Appellant claimed that his friend, Sarbaz Ali, had been killed by Daesh fighters, and there were pictures on the internet of them posing with the bodies of Daesh fighters, the suggestion that the Appellant would also now be at risk, was "speculation on the Appellant's part and a claim that has not been based on any plausible fact" (paragraph 40).
6. Furthermore, although there were photographs of the Appellant and his friend posing with dead bodies, "these photos do no more than confirm that the Appellant was involved with the Peshmerga" (paragraph 40). Moreover, in cross-examination, the Appellant had accepted that, "he had received no direct and individual threats himself" (paragraph 41).
7. In addition, the Appellant accepted that "he had no proof that his friend's murder was by Daesh sleeper cells". Indeed, he had produced no evidence to support this claim and "it was pure speculation on his part". The judge then went on to say that, "neither has the Appellant produced any evidence today about Daesh sleeper cells and whether they operate in Kurdish controlled areas" (paragraph 42).
8. The appeal was dismissed.
Grounds of Application
9. There are two grounds of application. First, the judge was simply wrong to conclude that there was no risk to the Appellant from Daesh sleeper cells, because the DVD, although not seen by the judge, and plainly rejected by the Home Office, had photographs extracted from it, and these were presented to the Tribunal Judge, so that the judge could simply not conclude that "these do no more than confirm that the Appellant was involved with the Peshmerga" because what they do additionally is show that the Appellant was involved in the deaths of several Daesh fighters, and it was on this basis that he would now be targeted by Daesh sleeper cells. Second, it was not correct that evidence about Daesh sleeper cells had not been produced before the judge, so that he was wrong to conclude that "the Appellant has produced no evidence today about Daesh sleeper cells and whether they operated in Kurdish controlled areas" (paragraph 42). The Skeleton Argument of Counsel below had produced evidence both of Daesh sleeper cells, and the fact that they operated in Kurdish controlled areas. This was simply a wrongful conclusion as to fact. Finally, the judge had failed to apply the country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 544.
10. For his part, Mr Norton submitted that the judge did consider the evidence and did conclude that the Appellant would not be at risk. Another judge may well have concluded in a different manner altogether. However, "irrationality" was a high threshold and the Appellant could not demonstrate that the threshold had been crossed. This is because no evidence had been produced of the death of Sarbaz Ali. No evidence had been produced that he had been killed by Daesh cells. No evidence had been produced of the Appellant himself having been individually targeted. On this basis, the Appellant's friend, if he was killed at all, may well have been killed by any number of other people rather than a sleeper Daesh cell. The judge was correct to conclude as she did.
11. As far as the second matter was concerned, in relation to the risk on return under AA (Article 15(c)) Iraq CG [2015] UKUT 544, then if the Appellant could not succeed on the first point, he could not succeed on the second either.
Error of Law
12. I am satisfied that the making of the decision by the judge involved the making of an error on a point of law (see Section 12(1) of TCEA 2007) such that I should set aside the decision. My reasons are as follows. First, the Appellant had produced a DVD showing himself with dead bodies of Daesh fighters. His evidence was that the Home Office had refused to accept this DVD. It was then produced before the Tribunal, which also was unable to look at the DVD, but what was available were photographs extracted from the DVD, and this the judge does properly refer to. Having referred to this evidence, the judge then concludes that, "these photos do no more than confirm that the Appellant was involved with the Peshmerga" (paragraph 40). That, however, in itself suggests a link between the Appellant and the deaths of the Daesh fighters depicted in the relevant photographs. It is not a finding without any further consequences because it shows the Appellant to have been a Peshmerga voluntary fighter as he claimed to have been.
13. Second, insofar as the Appellant claimed that there was a sleeper Daesh cell operating in the area, which had killed his friend, Sarbaz Ali, the Appellant was able to produce evidence of the existence of the Daesh sleeper cell, both in the Kurdish controlled area, and more generally, the judge was in error in concluding that, "neither has the Appellant produced any evidence today about Daesh sleeper cells and whether they operate in Kurdish controlled areas" (paragraph 42). Had the findings in relation to these two matters been different in their conclusion the result for the Appellant may well have been different.
14. In any event, it was necessary to have regard to the country guidance case on risk of return of AA (Article 15(c)) Iraq CG [2015] UKUT 544, because the suggestion that the Appellant could relocate to the Iraqi Kurdish region (at paragraph 23) is contingent on the Appellant finding employment, and consideration needs ought to be given as to whether the Appellant could safely relocate to Kirkuk from Baghdad.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law such that it falls to be set aside. I set aside the decision of the original judge. I remake the decision as follows. This appeal is allowed to the extent that it is remitted back to the First-tier Tribunal, to be heard by a judge other than Judge Walker on a de novo basis.

An anonymity order is made.

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

Deputy Upper Tribunal Judge Juss 25th February 2017