Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-003255

First-tier Tribunal No: PA/53020/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of May 2025

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

RM
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Martin, Jain, Neil & Ruddy Solicitors
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Melville Street, Edinburgh on 15 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals against a decision of the Secretary of State made on 7 June 2021 to refuse his asylum and human rights claims. His appeal against that decision was dismissed by the First-tier Tribunal (“FtT”) but, for the reasons set out in my decision of 13 January 2025 ( a copy of which is attached), that decision was set aside with a direction that the decision would be remade on a narrow basis.
2. The applicant is a citizen of Iraq. It is accepted that he is of Kurdish ethnicity, and it is not in doubt that he is from the Kirkuk area. He arrived in the United Kingdom on 30 August 2008 and claimed asylum. His initial claim was dismissed and his appeal against that decision was dismissed in 2009. Further submissions followed in November 2017 and although the Secretary of State accepted that as a fresh claim, dismissed the application. It was on that basis that the appeal came before Judge Montgomery.
3. The basis of the appellant’s claim is set out in the decision of the FtT and it is unnecessary to set that out in detail.
4. The Secretary of State accepted that the appellant is an Iraqi Kurd from Iraq and from Kirkuk but did not accept the remainder of his claim. She considered that he could be returned to Iraq as he would have access to the details of his Family Book permitting him, with the assistance of family, to obtain the relevant CSID documentation in Iraq, following SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (“SMO [2019]”). That decision has been superseded by SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UTIAC 110 (“SMO (2)”)
The Hearing
5. I heard evidence from the appellant who gave evidence in English. He adopted his witness statement and was cross-examined. He said he had had no contact with the Iraqi Embassy nor had the Home Office tried to get an interview with him for him to be documented. He confirmed that he had no contact with family or friends in Iraq and he had been unsuccessful in trying to find them. He said that he had not tried to contact his uncle when he reached the United Kingdom as he has no family.
6. Mr Mullen submitted that the appellant’s case should not be believed. The appellant’s account of having no contact with Iraq should be treated with some scepticism and that with family ought to be able to get him documented even if it meant some remaining family to help him travel through Iraq, relying on paragraph 5.1.3 of the October 2023 CPIN.
7. Mr Martin accepted the negative finding of credibility and that the scope of the appeal was narrow. He submitted that the appellant had clearly left Iraq before the INID system had started and that following SMO(2) he would have to return to Kirkuk to get an INID, he was unlikely to obtain any documentation in Baghdad or within a reasonable time. His laissez-passer would be confiscated on arrival and, given that he had been in the United Kingdom for nearly seventeen years and had entered without documentation it is unlikely that his family would be able to find the CSID and send it to him not least as he came from a corollary contested area, Kirkuk, which had changed hands on several occasions since he had left. Mr Martin submitted also there is an Article 15(c) risk relying on paragraph 144(3) and (5) of SMO (2) given the length of his absence from Iraq and his westernisation. He submitted that on the basis of the evidence there was no reasonable prospect of the documentation and the appeal fell to be allowed on Article 3 basis.
The Law
8. It is for the appellant to demonstrate he has a well-founded fear of persecution, to the lower standard, or that he is entitled to humanitarian protection; or, that there is a risk of him being exposed to ill-treatment of sufficient severity to engage article 3 of the Human Rights Convention. In assessing the appellant’s claim I have done so in the light of the background evidence, and in particular with regard to the most recent guidance SMO (2)
9. The core question here is whether the appellant has access to his CSID card or not. On the basis of the country guidance on Iraq, SMO (2) provides as follows in the headnote:-
11. The CSID is being replaced with a new biometric Iraqi National Identity Card - the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.
12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs ("CSA") office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely - as a result of the phased replacement of the CSID system - to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.
13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities but only for those Iraqi nationals who are registered at a CSA office which has not transferred to the digital INID system. Where an appellant is able to provide the Secretary of State with the details of the specific CSA office at which he is registered, the Secretary of State is prepared to make enquiries with the Iraqi authorities in order to ascertain whether the CSA office in question has transferred to the INID system.
14. Whether an individual will be able to obtain a replacement CSID whilst in the UK also depends 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 continues to underpin the Civil Status Identity process. Given the importance of that information, some Iraqi citizens are likely to recall it. Others are not. Whether an individual is likely to recall that information is a question of fact, to be considered against the factual matrix of the individual case and taking account of the background evidence. The Family Book details may also be obtained from family members, although it is necessary to consider whether such relatives are on the father's or the mother's side because the registration system is patrilineal.
15. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.
16. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.
10. In this case, the appellant comes from Kirkuk. I accept as a matter of history that it was a contested area, being taken over by ISIS/Daesh in 2014. It now appears (as is set out in Annex E to the relevant CPIN) there are no longer any CSID offices in Iraq and only INID offices now exist. Thus, a replacement CSID cannot be obtained. I note also at paragraph 3.6.2 that failed asylum seekers cannot be returned to Kirkuk Airport.
11. Paragraph 3.6.7 of the CPIN report provides as follows:-
“3.6.7 However, those who return to Iraq or the KRI without a CSID or INID, cannot obtain one via a family member on arrival and who would be required to travel internally to a CSA office in another area of Iraq or the KRI to obtain one would be at risk of encountering treatment or conditions which are contrary to paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 of the ECHR. In these cases, a grant of humanitarian protection is therefore appropriate (unless the person is excluded from such protection).”
12. Thus, the question arises is whether the appellant has family members who would have access to a CSID and would be able to provide it to him at the point of arrival in Iraq. If not, then he would not be able to travel to his home area.
13. I remind myself of what was held by the Supreme Court in MA (Somali) v SSHD [2010] UKSC 49 at 32 to 33:
32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence. Suppose, for example, that at the interview stage the appellant made an admission which, if true, would destroy his claim; and at the hearing before the AIT he withdraws the admission, saying that his answer at interview was wrongly recorded or that he misunderstood what he was being asked. If the AIT concludes that his evidence at the hearing on this point is dishonest, it is likely that his lies will assume great importance. They will almost certainly lead the tribunal to find that his original answers were true and dismiss his appeal. In other cases, the significance of an appellant's dishonest testimony may be less clear-cut. The AIT in the present case was rightly alive to the danger of falling into the trap of dismissing an appeal merely because the appellant had told lies. The dangers of that trap are well understood by judges who preside over criminal trials before juries. People lie for many reasons. In R v Lucas [1981] QB 720, the Court of Appeal had to consider whether a statement containing a lie was capable of amounting to corroboration. At p 724F, Lord Lane CJ said:
"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly, it must relate to a material issue. Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family…."
33. Although the analogy is not exact, it is close enough for these words to be of relevance in the present context. So the significance of lies will vary from case to case. In some cases, the AIT may conclude that a lie is of no great consequence. In other cases, where the appellant tells lies on a central issue in the case, the AIT may conclude that they are of great significance. MA's appeal was such a case. The central issue was whether MA had close connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links with Mogadishu. It is in such a case that the general evidence about the country may become particularly important. It will be a matter for the AIT to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant's lies.
14. As the First-tier Tribunal noted in the appeal there are fundamental issues regarding the appellant’s evidence and discrepancies as to his age and who had brought him up. As is noted at [48] the appellant had previously said that he had had an Iraqi civil status identity card CSID but he had left that along with other papers in Iraq when he fled the country. I find that this has a degree of credibility about it. The appellant would have been issued with a CSID before he left and there is no reason for him not to have said in a statement in June 2017 that he had previously held one and that he had left it in Iraq.
15. I share the First-tier Tribunal’s scepticism about the appellant’s case that he had no contact with friends or family members or anyone else he could approach for assistance on return to Iraq [51]. But, I recall that there has been significant disruption in Kirkuk whereby Kurds were driven out, and the surrounding area in the years since he has left. There has also been a significant lapse of time since he left Iraq.
16. Given the previous credibility findings I am not satisfied that the appellant has no contact with relatives in Iraq. It is, however, now seventeen years since the appellant left Iraq. It is possible that during that period he has lost contact with family and friends. It is also entirely possible that in the seventeen years and disruption that has occurred his CSID or other documents have been lost on the way.
17. It is I accept difficult for an individual to prove that he no longer has contact with someone or that documents he previously had have been lost. Equally, had the appellant wished to bolster his claim he could have said that he had been in contact with relatives none of whom had been able to find his CSID and it had been lost over the years.
18. Taking all of these factors into account and viewing the evidence as a whole, bearing in mind the earlier negative credibility finding I consider that the maintaining that he does not have any family, if that be a lie, and has no contact, is not one which now benefits him. There has been a consistent thread that he no longer has access to his CSID and no contact with family in Iraq. I am satisfied on the lower standard of proof that the appellant no longer has access to his CSID or that it is in the possession or control of someone with whom he has any contact or who could be contacted. I am therefore satisfied that it could not be provided to him either by secure post to the United Kingdom or presenting it on his arrival in Iraq.
19. Accordingly, I am satisfied on the basis of the CPIN that he is at risk of serious ill-treatment contrary to Article 3 and thus he is entitled to humanitarian protection.
20. In the circumstances therefore it is unnecessary for me to consider the additional submission that he would be at risk contrary to Article 15(c) on the basis of paragraph 144(4) and (5) differentially from other returnees due to westernisation or length of absence from Iraq.
Notice of Decision
(1) The decision of the First-tier Tribunal is set aside.
(2) I remake the decision by dismissing the appeal on asylum grounds and allowing the appeal on humanitarian protection and human rights grounds.

Signed Date: 1 May 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal

Annex - Error of law decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-003255
Extempore
First-tier Tribunal No: PA/53020/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

R M
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr S Martin (Solicitor)
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh on 18 December 2024

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Montgomery, promulgated on 13 June 2022, dismissing his appeal against the decision of the Secretary of State to refuse his protection claim and his human rights claim.
2. The applicant is a citizen of Iraq. It is accepted that he is of Kurdish ethnicity, and it is not in doubt that he is from the Kirkuk area. He arrived in the United Kingdom on 30 August 2008 and claimed asylum. His initial claim was dismissed and his appeal against that decision was dismissed in 2009. Further submissions followed in November 2017 and although the Secretary of State accepted that as a fresh claim, dismissed the application. It was on that basis that the appeal came before Judge Montgomery.
3. The basis of the appellant’s claim is set out in the decision of Judge Montgomery and it is unnecessary to set that out in detail.
4. The Secretary of State accepted that the appellant is an Iraqi Kurd from Iraq and from Kirkuk but did not accept the remainder of his claim. She considered that he could be returned to Iraq as he would have access to the details of his Family Book permitting him, with the assistance of family, to obtain the relevant CSID documentation in Iraq, following SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (“SMO [2019]”)
5. The judge dismissed the asylum claim deciding it primarily on the basis of the lack of confirmed findings from 2019 and applying the decision in Devaseelan. The judge did not accept the reliability of the documents relied upon and concluded that the appellant had not established, even to the lower standard required, he had no family support network in Iraq. She did however conclude [55] that he may well have left his CSID and Iraqi nationality card in Iraq but he that he had failed to establish that he would be unable to obtain or replace these documents noting also at 56 that his paternal uncle could easily have replaced these critical documents. It was on that basis, following SMO [2019], that the judge did not accept that he could not be regarded as undocumented.
6. The appellant sought permission to appeal on the ground that the judge had erred in failing to apply the correct law, which at that point was SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UTIAC 110 (“SMO [2022]”)which had replaced SMO [2019]. It is also submitted, following SMO [2022], that the appellant would require, an Iraqi National Identity Card (“INIS”), which is a biometric card, which cannot be issued unless a person attends in person to obtain such a document.
7. Permission to appeal was granted and the Secretary of State responded to that by way of a letter to the Tribunal dated 22 August 2022. It is unfortunate however that the matter could not reach the Upper Tribunal for a hearing until today.
8. As I observed at the hearing, it is established law that the date on which a decision of the First-tier Tribunal is to be assessed as to whether the law has been properly applied, with respect to country guidance, is the date of promulgation. Here it is accepted that the judge promulgated her decision subsequent to the promulgation of SMO [2022] as Country Guidance and thus it is prima facie in error of law for the Home Office to have taken it into account.
9. The question then arises as to whether this was material. I considered that it was. First, as already observed, the judge did not actually make a finding as to whether the appellant had access to a CSID or not. It is sufficiently clear from the headnote in SMO [2022] and the guidance given that without that, and if the appellant comes from an area in which the CSID is no longer being issued, he would be required to obtain an INID by attending the relevant office in his home area in person. None of this was considered by the judge presumably because she promulgated her decision without having had regard to SMO [2022].
10. Accordingly, for these reasons, I am satisfied that the decision of the First-tier Tribunal involved the making of an error of law and will need to be remade.
11. For the avoidance of doubt, the findings with respect to the asylum claim are maintained, as are the findings as to credibility. The remaking will be confined to the issue of whether the appellant has a CSID card or has access to it and if not what flows from that.
12. In remaking the decision, the Upper Tribunal in remaking the decision will need to have regard to up-to-date material relating to the position of whether CSIDs are still being issued in Kirkuk and further to what extent the appellant could obtain necessary documentation from the United Kingdom or immediately on arrival in Iraq.
Notice of Decision
(1) The decision of the First-tier Tribunal involved the making of an error of law and I set it aside.
(2) I direct that the appeal be re-made in the Upper Tribunal on a date to be fixed with a time estimate of 2 hours
(3) If either party wishes to adduce any further evidence, this must be served in electronic format, compliant with President’s Guidance on the Format of Electronic Bundles in the Upper Tribunal (IAC) on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15 (2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
(4) If the appellant wishes to give oral evidence, he must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction [3] above, and must state if an interpreter is required, if so in which language.

Signed Date: 13 January 2025
Jeremy K H Rintoul
Judge of the Upper Tribunal