Tribunal decisions

The decision

IAC-FH-CK-V2

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/11981/2019

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 26 May 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

RSS
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Ms M Kelleher of Barnes Harrild & Dyer Solicitors
For the Respondent: Ms A Ahmed, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Iraq. He appealed to the First-tier Tribunal against the Secretary of State’s decision of 18 November 2019 refusing an asylum claim. There had been a previous claim in 2016 which was refused and a subsequent appeal dismissed by Judge Law of the First-tier Tribunal in January 2018.

2. The current appeal came before Judge Richardson of the First-tier Tribunal. He dismissed the appeal and subsequently, permission to appeal having been granted, a Judge of the Upper Tribunal found no material error of law in the decision and concluded that it was to stand.

3. Subsequently, however, the Upper Tribunal decision was set aside, following the making of a Rule 43 application, and as a consequence, the decision of Judge Richardson requires to be scrutinised afresh to see if there is any error of law in it.

4. It will be helpful to consider briefly the findings of Judge Law in 2018. The appellant’s evidence before him was that in the course of his working as a tanker driver, he and other drivers were stopped by ISIS forces in July 2015 and held and ill-treated. He was subsequently able to escape but feared ill-treatment from ISIS on return.

5. Judge Law did not accept the appellant’s claim to have been held and taken captive as he claimed and therefore determined the appeal on the basis that he had simply fled Iraq when his home area was taken over by ISIS.

6. In his evidence the appellant said that his CSID was confiscated when he was arrested. It does not appear that the judge made any specific finding on this, but in relation to documentation the judge considered that he would have to decide whether the appellant would be able to obtain a CSID to access support from a local administration. At paragraph 27 of his decision he noted what had been said in the Court of Appeal decision in AA that as a general matter the appellant should be able to obtain a CSID from the Civil Status Affairs Office for his home governorate, using an Iraqi passport. As he did not have an Iraqi passport currently the guidance required the judge to consider whether the appellant had people who would vouch for him at the Civil Status Affairs Office. The judge found that he did not accept that the appellant’s family had not returned to the home area. Background evidence showed that former residents had been returning to Jalawla, which is the appellant’s home town, and the judge considered that the likelihood was, given the evidence that the appellant’s family had also returned and therefore would be able to vouch him, that he would be able to obtain a CSID.

7. In his decision Judge Richardson noted the earlier decision of Judge Law. He identified the key issue in the case as being whether the appellant could obtain a CSID and that without such a document the appellant said he would be at a real risk of Article 3 ill-treatment if required to travel from Baghdad Airport to Jalawla.

8. The judge took into account the country guidance in SMO [2019] UKUT 00400 (IAC) and also the earlier guidance in AA and AAH.

9. In his evidence the appellant said that all his ID documents save for one that had been left at home had been taken by ISIS when he was seized and imprisoned. He maintained this account despite it being explained to him that the previous judge had not accepted that he had been detained by ISIS. The judge said that he was not satisfied that the appellant had lost his Iraqi identity documents as claimed.

10. He went on to say, in light of the country guidance, that it appeared to be open to the appellant to apply for a CSID within the United Kingdom. His evidence was that he had been turned away by the Iraqi Embassy but the judge thought that this might well be because, as the statement of the interpreter set out, he had sought to obtain a passport rather than an identity document.

11. The judge went on to say that if indeed the appellant no longer had his identity documents the question would be whether he was unaware of the book and page number of his family registration details. He said that there was no evidence to suggest that the appellant was unaware of these details and indeed, someone who had previously had employment and worked as a driver was, he thought, likely to have held documentation which contained such details and he would have been aware of them as confirmed in paragraph 319 of SMO. He went on to say that it had not been accepted that he had been seized and detained by ISIS and the judge said that therefore he could not accept the appellant’s account of how he had lost his identity documents.

12. The judge went on to note the appellant’s evidence that he had had no contact with his family since leaving Iraq save for information he had received from a contact over Facebook. The judge commented that there was no evidence of this Facebook contact and it was not raised at the appellant’s asylum interview and he therefore gave his account on this issue little weight. He went on to say that although the appellant had approached the Red Cross to locate his family, the process was ongoing and so at this point there was no way of knowing if it would be successful or if it had been undertaken purely for the purpose of supporting his asylum claim. The judge went on to say that in light of the above he was not satisfied to the requisite standard that the appellant was unable to apply successfully for a CSID either in the UK or by proxy with the assistance of family members in Iraq.

13. He went on to note the fact that the appellant is a Kurdish Sunni from Jalawla in Dyala province. He noted what had been said about the risk in that province in SMO and said that in summary, it was found that the risk posed by ISIL activity in the area did not reach the Article 15(c) threshold. There was press reporting of ISIL activity but the judge considered that the reporting of isolated incidents did not provide him with sufficient evidence to overturn the country guidance case and therefore concluded that the appellant did not qualify for humanitarian protection.

14. Permission was granted on all four grounds of appeal. Ms Kelleher adopted and developed points made in the grounds and also in the response to the Rule 24 notice that had been provided.

15. In ground 1 it is argued that the judge made a key error of fact in that he said at paragraph 14 that there was no evidence to suggest that the appellant was unaware of the details of his book and page number of his family registration details. In fact, as was set out at paragraph 5 of his witness statement, he said that he did not know this information as these details were “not important” to remember.

16. In the response to the Rule 24 notice, the appellant addresses the argument in that notice that the appellant’s account was rejected in his first claim and therefore it was not relevant that an error of fact was made. The response to that is that the error of fact was based on the new fresh claim and new evidence before the Tribunal and the importance of a family book number was a new matter as emphasised in SMO. This was crucial as it was such a central issue.

17. In ground 2 it was argued that the judge had misapplied the country guidance in SMO. It was clear from the headnote of SMO that whether or not a person would be able to redocument themselves in the United Kingdom depended on the documents available and, critically, the availability of the volume and page reference of the entry in the family book in Iraq, which system continued to underpin the Civil Status Identity process. SMO had applied AAH, which listed all the documents needed, and again, the appellant did not have the documents or know the page or book numbers. The judge had erred in not considering the types of documents and processes needed. It was clear that the appellant would be returned to Baghdad and it would be unlikely that he could get a CSID or INID card there and it was clear from SMO that if these documents could not be obtained in the United Kingdom and could not be obtained in Baghdad, then there would be likely to be an Article 3 breach on return. The judge had erred in not considering that.

18. In ground 3 it was argued that the judge’s findings were confused as to whether or not he thought the appellant was documented. It was unclear whether the judge found the appellant to be documented or undocumented. With regard to family contact the judge appeared to accept efforts had been made via the Red Cross but then speculated at paragraph 17 and it was unclear what the basis of that speculation was. Little weight should be attached to the Facebook point. As to whether this was an issue relevant to general credibility, the judge seemed to accept there was a process for locating family but failed to come to a decision as with the documentation point. He did not say that he did not believe the appellant because of the previous credibility findings but made no finding either way.

19. As regards ground 4, the judge made no assessment as to the sliding scale process set out in SMO . Jalawla was referred to in SMO with regard to ill-treatment of Kurds and so there was a lack of findings on that and again a clear error of law.

20. In her submissions Ms Ahmed relied on and developed the points made in the Rule 24 response. The grounds amounted to disagreement and an attempt to relitigate the issue. It was clear that the issue was a narrow one, that of documentation. The judge had applied the Devaseelan guidance and had properly directed himself.

21. As regards ground 1, the judge had not believed the appellant’s account and the initial determination had not been challenged and hence credibility remained central to the claim. It was clear that the judge had not accepted the appellant’s evidence, on a proper reading of paragraph 14. The claim was rejected, with reasons.

22. As regards ground 2 and the inability to obtain a CSID in the United Kingdom, this was a matter of disagreement. The judge had engaged fully with the issues, for example at paragraphs 4, 5 and 6. There was a lengthy quotation from SMO and reliance placed on the risk on travelling. At paragraph 8 the judge properly cited the country guidance and showed he was aware of what would be needed to obtain a CSID from the United Kingdom. The judge had not accepted that the appellant had lost his Iraqi ID as claimed. What was said about applying for a CSID in the United Kingdom was in the alternative, the judge not having accepted that the ID documents had been lost. The judge had not accepted that the appellant was unaware of the page and book number.

23. If Ms Kelleher’s argument was taken to its conclusion, then it would be almost impossible to obtain a CSID in the United Kingdom, and that was not what the country guidance said but it said you could get a CSID in the United Kingdom. It was an attempt to re-argue the case. The onus was on the appellant.

24. The judge had cited AA at paragraph 13, setting out what was required, contrary to the argument that he had not considered what documents were needed. As to whether one could get a CSID in Baghdad, the judge had not found that the appellant could redocument himself there but found he either had the documents or could get a CSID by the book and page number or by a proxy.

25. With regard to ground 3, the Rule 24 response did not accept the error claimed. The judge had ultimately found that the appellant was not documented. Paragraph 15 of the decision could have been clearer but there was no confusion. The judge had not accepted the appellant’s account of how he lost the documents nor that he had lost the documents at all. Even if that paragraph were vague, it was not confusing. The judge had not accepted that the appellant did not know the book and page numbers.

26. Paragraph 18 covered all the bases. With regard to the family and Red Cross issue, the judge had not accepted the appellant’s evidence and in light of the earlier decision at paragraph 24 applied the Devaseelan guidance. Judge Law had found it was likely the family had returned to Jalawla. The evidence of approaching the Red Cross was considered and it was open to the judge to infer as he did. What was said about the Facebook issue was sound and it was not evidenced and the onus was on the appellant.

27. As regards ground 4, there was a reference in the decision to the appellant being Kurdish and the judge had cited the relevant paragraphs of SMO. There was no Article 15(c) risk to an ordinary citizen in any part of Dyala. Jalawla was not specified. There was references to it but only in the context of the consideration of Dr Fatah’s evidence and in the EASO Report. Judge Law had noted the background evidence as to the return of former residents to Jalawla.

28. By way of reply, Ms Kelleher argued that with regard to the Devaseelan point, Judge Law had accepted that the appellant had fled his home and did not find he was documented but that he could redocument himself, so there was no finding that the appellant was documented, so if Devaseelan were applied and the appellant was undocumented at the time of both decisions, then this called everything else into question including Judge Richardson’s findings about redocumentation.

29. As to the finding about the family book number and the earlier credibility findings, it could not be said, as was argued by Ms Ahmed, that the judge found that there was no evidence but there was evidence from the appellant. It was not a question of reading but it was a clear error.

30. With regard to ground 2, just because the judge referred to the correct law did not mean it was applied correctly and the judge had got the law wrong on the redocumentation point. It was not being argued that it was impossible to redocument but it could be done in the United Kingdom according to SMO: however the appellant was undocumented and did not have the other documents, so it was impossible for him to redocument.

31. With regard to ground 3 and the Devaseelan argument, Judge Law had found the appellant to be evasive but did not find he had had contact with his family and found he could contact them as people had returned. This was based on the background evidence and not the appellant’s credibility. The Red Cross point was, as a consequence, crucial.

32. With regard to ground 4, the reference by Ms Ahmed to paragraphs of SMO had not included any reference to paragraph 5 of the headnote in the consideration of the sliding scale. It was not said there was a risk for all on the ground but it was necessary to consider individual characteristics. It was relevant on the basis of the appellant’s Kurdish ethnicity.

33. I reserved my decision.

34. As regards ground 1, I see force in the argument made on the appellant’s behalf. It would have been relatively easy for the judge to consider the appellant’s claim in his witness statement that he did not know the book and page number and that they were not important and to conclude that that lacked credibility, bearing in mind what was said in the country guidance and the point that the judge that the appellant, having previously worked as a driver, was likely to have held documentation containing such details. But it was, in my view, a material error to fail to address this part of the appellant’s evidence. It is not impossible for a person not to know the book and page number and it is not impossible for a view that these matters did not matter to be legitimately held, though the latter is perhaps a more problematic point. But it was a piece of evidence, contrary to what the judge considered, going against the appellant’s awareness of the book and page number and it required to be considered.

35. Ground 2 essentially follows from this. The challenge is as to the judge’s application and consideration of paragraph 390 of SMO. It is also tied in with ground 3 and the argument about the contradictory findings. I agree with Ms Kelleher that it is sufficiently clear from Judge Law’s decision that he did not find that the appellant had got his documents, in that, although he did not accept that the appellant was taken and held captive by ISIS as claimed, he had made no specific finding on the claim of having had to give up his documents to them and indeed, what he had to say subsequently at paragraph 27 as to the ability to obtain documents implies quite strongly that he did not conclude that the appellant had not lost his documents, whether to his ISIS captors or otherwise. It cannot properly be said that Judge Law found that the appellant was undocumented.

36. Judge Richardson at paragraph 11 said he was not satisfied that the appellant had lost his Iraqi identity documents as claimed and again at paragraph 15 said that he could not accept the appellant’s account of how he had lost his identity documents as it was not accepted that he had been seized and detained by ISIS. It does not follow, in my view, that the fact that his account of seizure and detention by ISIS meant that it was not credible that he had lost his documents as contended, bearing in mind what was said by Judge Law, as noted above. There is, in my view, a lack of clarity in Judge Richardson’s findings in this regard. He did not conclude that he did not accept the appellant had lost his documents but rather how he said he had lost his documents and that, in my view, was an insufficiently clear finding. This is clearly relevant to the application of paragraph 393 of SMO. It is, in essence, clear that a person who genuinely has no relevant documents to present or via a proxy to the relevant office and if they genuinely do not know the volume and page reference in the civil registry and genuinely cannot contact a family member from whom the details could be obtained there is no realistic prospect of them obtaining a CSID remotely upon return to Baghdad. The judge said that he gave little weight to the appellant’s account that he had had no contact with his family since the only information he had was from a Facebook contact and there was no evidence of that contact and it was not raised at his interview. It is unclear how much weight was given to his evidence in this regard and the judge did not overtly state that he did not accept that the appellant had no contact with his family, though it may perhaps be inferred, bearing in mind also what he said about the approach to the Red Cross that he did not accept that the appellant could not apply for a CSID either in the UK or by proxy with the assistance of family members in Iraq. There is the difficulty with paragraph 17, as argued by Ms Kelleher, that the judge essentially speculated in that he noted the appellant’s approach to the Red Cross to locate his family but the ongoing nature of the process and the fact that it was unclear whether it would be successful or not. Again, I consider the findings are excessively inconclusive and it is necessary for there to be a clear finding based on the evidence as to whether or not it is accepted that the appellant has no contact with his family and that as a consequence he is or is unable to arrange for documentation via a proxy.

37. The final ground concerns the argument that the judge applied an insufficiently nuanced approach to the assessment of risk to the appellant in his home area as a Kurdish Sunni.

38. It is relevant to bear in mind what was said in the headnote in SMO that the situation in governorates including Dyala is complex, encompassing ethnic, political and humanitarian issues which differ by region, and that it is necessary in considering Article 15(c) risk to make a fact-sensitive sliding scale assessment. In this regard, the fact that the appellant is a Kurd, though that was noted at paragraph 19, was not assessed in the context of risk. This is perhaps a lesser point, bearing in mind that, as the judge noted, the risk posed by ISIS activity in Dyala does not reach the Article 15(c) threshold, but it is nevertheless necessary to factor into that the appellant’s Kurdishness in coming to a conclusion. On balance, I consider that the judge erred in law in that respect also.

39. Bringing these matters together, I consider that errors of law as contended in the grounds of appeal have been made out. As a consequence, it will be necessary for there to be a full rehearing of this appeal, bearing in mind in that assessment the earlier decision of Judge Law and his findings. None of the findings made by the judge in the instant appeal are preserved and, given the extent of remaking, it will be appropriate for the matter to be reheard in the First-tier Tribunal by a different judge at Taylor House.

Notice of Decision

The appeal is allowed to the extent set out above.

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 his 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 10 June 2022

Upper Tribunal Judge Allen