PA/11780/2016

• Status of case: Unreported
• Hearing date: 23 Feb 2017
• Promulgation date: 2 Mar 2017
• Publication date: 13 Jan 2022
• Last updated on: 13 Jan 2022

The decision

Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11780/2016


THE IMMIGRATION ACTS


Heard at Field House
Decision & Reasons Promulgated
On 23 February 2017
On 2 March 2017



Before

Deputy Upper Tribunal Judge Pickup


Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AMO
[Anonymity direction made]
Claimant


Representation:
For the claimant: Mr K Smyth, instructed by Kesar & Co Solicitors
For the appellant: Mr S Staunton, Senior Home Office Presenting Officer


DECISION AND REASONS
1. This is the Secretary of State’s appeal against the decision of First-tier Tribunal Judge Devittie promulgated 29.12.16, allowing the claimant’s appeal against the decision of the Secretary of State, dated 12.10.16, to refuse his protection claim.
2. The Judge heard the appeal on 25.11.16.
3. First-tier Tribunal Judge Chohan granted permission to appeal on 19.1.17.
4. Thus the matter came before me on 23.2.17 as an appeal in the Upper Tribunal.

Error of Law
5. For the reasons summarised below, I found such an error of law in the making of the decision of the First-tier Tribunal as to require the decision of Judge Devittie to be set aside and remitted to the First-tier Tribunal to be remade.
6. The claimant, a Kurdish citizen of Iraq from Tell Kayf, near Mosul, claims that his father and later his brother were abducted by Daesh and that Daesh attempted to recruit him, leading him to flee Iraq. The Secretary of State accepts that Daesh entered this area in 2014. It follows that the claimant cannot return to his home area, which remains a contested area.
7. At [43] of the refusal decision, the Secretary of State accepted that the claimant’s return to Iraq is not currently feasible, following the guidance of AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). This is because he does not have any identity documents which would enable him to obtain a CSID. However, the Secretary of State considered that he would be able to relocate to the IKR. As he is not from the IKR, he cannot be returned directly there. He would first have to be returned to Baghdad and then make his way to Erbil. According to the IRC, reported in the CIG, IDPs are arriving in Erbil by plane from Baghdad with no difficulty. Thus the application was refused.
8. Judge Devittie concluded at [12] that it would not be feasible to return the claimant to Baghdad, because he does not have a CSID, and in the absence of family support his chances of obtaining these documents are remote. Without a CSID he would not be able to access state support, including housing, employment and accommodation.
9. The grounds of application for permission to appeal complain that Judge Devittie made a material error of law in misapplying AA, and failing to follow the reasoning of [169] of that decision, and allowing the appeal on the basis that the claimant did not possess the documentation to enable him to return to Iraq.
10. In granting permission to appeal, Judge Chohan stated, “It is true that the judge appears to have allowed the appeal on the basis of a lack of travel documentation on the basis that that would put the (claimant) at risk of persecution upon return to Iraq. That, per se, is an arguable point.”
11. I am satisfied that Judge Devittie misunderstood or misapplied AA in relation to the lack of documentation.
12. The Rule 24 response of the claimant is misconceived in suggesting that because Judge Devittie found that the claimant could not return to his home area, that amounted to a risk on return apart from and not directly relating to a lack of documentation. However, that was not the crucial issue in the appeal, as the Secretary of State accepted that he could not return to a contested area, but asserted that internal relocation was available to him in the IKR.
13. At [7] of the country guidance in the section on ‘documentation and feasibility of return,’ the Upper Tribunal held that in the light of the Court of Appeal’s judgement in HF (Iraq) and others v SSHD [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 Iraqi identification documentation, if the Tribunal finds that P’s return is not currently feasible, given what is known about the state of P’s documentation.”
14. At [8] the guidance continues, “It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.”
15. It follows that as the Secretary of State and the First-tier Tribunal Judge both concluded that return to Iraq was not currently feasible, the Tribunal should not have considered the absence of documentation as a reason for allowing the appeal. As pointed out in [169] of AA, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of lack of documentation. “For this reason, we consider that the judgement in HF (Iraq) does not preclude a claim to international protection from succeeding, insofar as the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person’s actual return unfeasible.”
16. Whilst Judge Devittie did reference some additional factors, such as the lack of family support, the decision to allow the appeal was clearly based on the lack of documentation to enable the claimant to obtain a CSID, and did not distinguish that issue from other potential factors. That was a misdirection in law requiring the decision to be set aside.

Remittal
17. When a decision of the First-tier Tribunal has been set aside, section 12(2) of the Tribunals, Courts and Enforcement Act 2007 requires either that the case is remitted to the First-tier Tribunal with directions, or it must be remade by the Upper Tribunal. The scheme of the Tribunals Court and Enforcement Act 2007 does not assign the function of primary fact finding to the Upper Tribunal. Where the facts are unclear on a crucial issue at the heart of an appeal, as they are in this case, effectively there has not been a valid determination of those issues. The errors of the First-tier Tribunal vitiate all other findings of fact and the conclusions from those facts so that there has not been a valid determination of the issues in the appeal.
18. In all the circumstances, I remit this appeal to be relisted in the First-tier Tribunal, on the basis that this is a case which falls squarely within the Senior President’s Practice Statement at paragraph 7.2.

Conclusions:
19. The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law such that the decision should be set aside.
I set aside the decision.
I remit the appeal to be decided afresh in the First-tier Tribunal in accordance with the attached directions.

Signed

Deputy Upper Tribunal Judge Pickup

Dated


Consequential Directions
20. The appeal is remitted to the First-tier Tribunal sitting at Taylor House;
21. The appeal is to be relisted at the first available date;
22. The appeal is to be decided afresh with no findings of fact preserved;
23. The ELH is 3 hours;
24. A Kurdish Bahdini interpreter will be required;
25. The appeal may be listed before any First-tier Tribunal Judge, with the exception of Judge Devittie and Judge Chohan;
26. The appellant is to ensure that all evidence to be relied on is contained within a single consolidated, indexed and paginated bundle of all objective and subjective material, together with any skeleton argument and copies of all case authorities to be relied on. The Tribunal will not accept materials submitted on the day of the forthcoming appeal hearing;
27. The First-tier Tribunal may give such further or alternative directions as are deemed appropriate.

Anonymity
I have considered whether any parties require the protection of any anonymity direction. No submissions were made on the issue. The First-tier Tribunal did make an anonymity order.
Given the circumstances, I continue the anonymity order.

Fee Award Note: this is not part of the determination.
In the light of my decision, I have considered whether to make a fee award pursuant to section 12(4)(a) of the Tribunals, Courts and Enforcement Act 2007.
I have had regard to the Joint Presidential Guidance Note: Fee Awards in Immigration Appeals (December 2011).
I make no fee award.
Reasons: The outcome of the appeal remains to be decided.


Signed

Deputy Upper Tribunal Judge Pickup

Dated