Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/12410/2018

THE IMMIGRATION ACTS

Heard at Birmingham
On 30 July 2019
Decision & Reasons Promulgated
On 8 August 2019

Before

DEPUTY UPPER TRIBUNAL JUDGE DOYLE

Between

ALI SALIH
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr J Howard of Fountain Solicitors
For the Respondent: Mr D Mills, Senior Home Office Presenting Officer
DECISION AND REASONS

1. I have considered whether any parties require the protection of an anonymity direction. No anonymity direction was made previously in respect of this Appellant. Having considered all the circumstances and evidence I do not consider it necessary to make an anonymity direction.

2. This is an appeal by the Appellant against the decision of First-tier Tribunal Judge O'Hagan promulgated on 21 March 2019, which dismissed the Appellant's appeal.

Background

3. The Appellant was born on 6 June 1998 and is a national of Iraq. On 11 October 2018 the respondent refused the appellant's protection claim.

The Judge's Decision

4. The Appellant appealed to the First-tier Tribunal. First-tier Tribunal Judge O'Hagan ("the Judge") dismissed the appeal against the Respondent's decision. Grounds of appeal were lodged and on 18 April 2019 Judge Grant-Hutchison granted permission to appeal stating inter alia

3. The Judge has considered all the documentary and oral (evidence) and has made appropriate findings which he was entitled to make including the fact that the appellant has access to his CSID in Iraq. It was open for the Judge to consider what weight he felt it appropriate to place on all the evidence before him. The Judge has given adequate reasons for his decision.

4. However it is arguable that the Judge has misdirected himself by failing to consider the terms of paragraph 276ADE(1)(vi) of the immigration rules as to whether or not there would be very significant obstacles to the appellant's integration in Iraq on return.

The Hearing

5. For the appellant, Mr Howard moved the grounds of appeal. He told me that the article 8 findings are at [53] of the decision. He told me that [53] contains no reference to the private life that the appellant has established in the UK, and that the Judge has not considered any factors relevant to an article 8 proportionality assessment. He told me that the decision is devoid of consideration of paragraph 276 ADE of the rules. He told me that at [45] and [46] the Judge applies the wrong standard of proof. He urged me to set the decision aside.

6. For the respondent, Mr Mills told me that the grant of permission to appeal limits the focus in this appeal to paragraph 276 ADE(1)(vi) of the rules. He conceded that the Judge does not cite paragraph 276ADE, and told me that if that is an error it is not a material error. He invited me to look at all of the Judge's findings. The Judge finds that the appellant is not a refugee; the Judge finds that the appellant can safely return to Iraq and can safely relocate to IKR. He told me that those findings are not challenged and argued that, in the light of those findings, the Judge could not, rationally, find that there are very significant obstacles to integration. Mr Mills asked me to dismiss the appeal.

Analysis

7. The grounds of appeal set out three challenges. The first related to the adequacy of reasoning; the second related to consideration of the manner in which the appellant might obtain a replacement CSID; the third focuses on paragraph 276ADE(1)(vi)

8. The grant of permission to appeal says that there is nothing wrong with the Judge's reasoning in relation to the asylum appeal and that the Judge's findings in relation to the availability of a CSID are adequately reasoned. Permission to appeal was granted on the narrow issue of paragraph 276 ADE(1)(vi) only.

9. To meet the requirements of paragraph 276 ADE(1)(vi) of the rules the appellant would have to establish very significant obstacles to his integration in either Iraq or IKR. In submissions, the appellant's solicitor said that the balancing exercise has not been fully undertaken & that the Judge does not consider the negative findings surrounding what the appellant will face on return. The appellant's solicitor said that the Judge did not consider that the appellant is Kurdish, that he is a Sunni Muslim, that he did not have an education and that he says he left Iraq at 16 years old.

10. The fact that the appellant is a Sunni Muslim and a Kurd who lived in Iraq until he was 16 years old are not (on their own) factors which create obstacles to integration. There is a dispute about the appellant's age. On the appellant's account he is now 18 years of age, the respondent believes he is 20 years of age. In any event he is a young adult who has spent most of his life in Iraq.

11. The Judge rejected the appellant's asylum claim. In his witness statement (which was before the First-tier Tribunal) the appellant focused on his asylum claim saying that he has a fear of both ISIS and Arabs. He summarises his claim at paragraph 36 of his witness statement by saying

I confirm I cannot relocate to another area of Iraq because I am Kurdish, and I cannot speak Arabic. I am a Sunni Muslim and therefore I will be killed and not save(d). I do not have any family left in Kurdistan. I cannot relocate because other areas in Iraq are controlled by ISIS. ISIS are still attacking innocent people in Iraq.

12. The only other evidence to support the appellant's article 8 ECHR appeal is that he has lived with his brother since soon after he arrived in the UK.

13. Between [14] and [20] of the decision the Judge summarises the evidence. Between [21] and [28] he summarises the submissions that were made. At [28] the Judge says that the only submission made in relation to article 8 ECHR grounds of appeal was that the appellant had developed a strong private life, the evidence for which is in his witness statement.

14. The Judge's findings and conclusions lie between [29] and [54] of the decision. The Judge rejects the appellant's asylum and humanitarian protection claim in its entirety. At [47] the Judge finds that the appellant has been dishonest. At [48] and [49] the Judge finds that the appellant is not entitled to humanitarian protection. Those findings were made by considering what would face the appellant in Iraq & IKR.

15. At [53] the Judge turns to article 8 ECHR grounds of appeal. The Judge bemoans the paucity of evidence of article 8 private life. The Judge finds the public interest in immigration control outweighs any article 8 rights the appellant may have.

16. It is true that the Judge does not cite paragraph 276 ADE(1)(vi) of the rules. But the Judges findings of fact (drawn from the evidence placed before the Judge) indicate that there are no significant obstacles to integration. The only evidence driving at article 8 is in the appellant's witness statement. Paragraph 276 ADE is consideration of article 8 private life. The only part of the appellant's witness statement that could possibly drive at very significant obstacles relates to his asylum claim. If the appellant's asylum claim had been successful, by analogy there would be evidence of very significant obstacles to integration.

17. The cold fact is that the appellant's protection claim was unsuccessful. His appeal against the refusal of his protection claim was unsuccessful. The Judge gives adequate reasons for rejecting the appellant's protection appeal. In doing so the Judge makes a finding that there are no significant obstacles to integration. Nothing else is plead which could relate to paragraph 276 ADE.

18. It would have been helpful if the Judge said that because the appellant's protection appeal is unsuccessful he cannot succeed under paragraph 276ADE(1)(vi), but his failure to do so is not a material error of law. The Judge's unchallenged findings of fact can only lead to the conclusion that there are no significant obstacles to integration. What is now plead for the appellant (his ethnicity, religion and lifetime's experience) are all factors which indicate that he is well equipped to integrate both in IKR and Iraq.

19. In VV (grounds of appeal) Lithuania [2016] UKUT 00053 (IAC) it was held that (i) An application for permission to appeal on the grounds of inadequacy of reasoning in the decision of the First-tier Tribunal must generally demonstrate by reference to the material and arguments placed before that Tribunal that (a) the matter involved a substantial issue between the parties at first instance and (b) that the Tribunal either failed to deal with that matter at all, or gave reasons on that point which are so unclear that they may well conceal an error of law. (ii) Given that parties are under a duty to help further the overriding objective and to co-operate with the Upper Tribunal, those drafting grounds of appeal (a) should proceed on the basis that decisions of the First-tier Tribunal are to be read fairly and as a whole and without excessive legalism; (b) should not seek to argue that a particular consideration was not taken into account by the Tribunal when it can be seen from the decision read fairly and as a whole that it was (and the real disagreement is with the Tribunal's assessment of the evidence or the merits); and (c) should not challenge the adequacy of the reasons given by the First-tier Tribunal without demonstrating how the principles in (i) above have been breached, by reference to the materials placed before that Tribunal and the important or substantial issues which it was asked to determine in that particular case.

20. A fair reading of the decision demonstrates that the Judge applied the correct test in law. The Judge carried out a holistic assessment of all of the evidence. There is nothing unfair in the procedure adopted nor in the manner in which the evidence was considered. There is nothing wrong with the Judge's fact-finding exercise. The appellant might not like the conclusion that the Judge arrived at, but that conclusion is the result of the correctly applied legal equation. The correct test in law has been applied. The decision does not contain a material error of law.
21. The decision does not contain a material error of law. The Judge's decision stands.
DECISION
22. The appeal is dismissed. The decision of the First-tier Tribunal, promulgated on 21 March 2019, stands.
Signed Date 5 August 2019

Deputy Upper Tribunal Judge Doyle