Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003866
First-tier Tribunal No: PA/54546/2023
LP/04112/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE ANTHONY

Between

MM
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr F Ahmed of Counsel, instructed by Hanson Law
For the Respondent: Ms S Simbi (Senior Home Office Presenting Officer)

Heard at Birmingham Civil Justice Centre on 18 February 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. This is the re-making of the decision in the appellant’s appeal, following my setting aside of the decision of First Tier Tribunal Judge Chamberlain (“the Judge”), who had dismissed the appellant’s protection and human rights appeal on all grounds save for Article 3. My decision setting aside the Judge’s decision is appended to this decision as a separate annex.

2. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Iraq. In reaching this decision, we are mindful of the fundamental principle of open justice, but we are satisfied, taking the appellant’s case at its highest for these purposes, that the potential grave risks outweigh the right of the public to know of his identity.

Background

3. The appellant is a national of Iraq whose date of birth is 25 January 1994. He entered the United Kingdom on 1 November 2019 and claimed asylum the same day. That claim was refused on 21 July 2023 and the appellant appealed on 24 July 2023. The Judge dismissed the appeal on all grounds save for Article 3. The judge allowed the Article 3 appeal solely on the basis that there was a real risk of suffering treatment contrary to Article 3 if he were returned to Sulaymaniyah, because he had no CSID and his home area was Erbil.

4. The respondent appealed with the permission of First-tier Tier Tribunal Judge Saffer on the basis that the First-tier Tribunal Judge had erred in law in failing to consider whether there would be such a risk if the appellant were returned to Erbil, that destination being open to the Secretary of State and being the appellant’s local airport.

5. There was no cross-appeal by the appellant in respect of the Judge’s dismissal of his appeal on all other grounds.

6. Following an error of law hearing on 30 October 2024, I held that the judge had erred as submitted by the respondent. I was unable to accept Mr Ahmed’s submission that the error was immaterial because the appellant would inevitably have to pass through a checkpoint between arriving at Erbil airport and the Civil Status Affairs Office in Erbil at which he would have to redocument himself. No evidence to that effect had been before the judge; however, I gave directions for the provision of further evidence for this hearing, including ‘background evidence relied upon dealing with the issue of redocumentation and arising risks, and specifically the risks he might face on return by air to Erbil, bound together in an indexed and paginated bundle’.

The Hearing

7. The appellant gave evidence on the basis of a witness statement dated 12 December 2024 and was cross-examined. He also relied on 2 bundles (pdfs of 24 and 16 pages respectively) as well as the country guidance case of SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) (‘SMO2’) and the respondent’s CPIN, ‘Iraq: Internal relocation, civil documentation and returns’ published in October 2023.

8. The representatives both made oral submissions, in the appellant’s case supplementing the skeleton argument included within his document bundles. Whilst we set out matters below only in sufficient detail to enable the parties to understand our decision, we took all of the evidence and submissions fully into account.

Analysis and Conclusions

9. It is not in issue today that the appellant does not have any Iraqi identification documentation. The Judge found his claim to have given his CSID to the agent arranging his escape from Iraq to be plausible and also recorded that the respondent appeared to accept that he did not have a CSID and would need to redocument himself on return to Iraq [40]. Those findings were not challenged in the respondent’s appeal to the Upper Tribunal.

10. The Judge did, however, reject the appellant’s account of events in Iraq, finding it to be ‘unreliable’ [15] with ‘significant inconsistencies in his evidence which go to the core of his claim’ [24], and concluding that there was ‘no reasonable likelihood that the appellant’s account of events in Iraq is true’ [31]. She also found that the appellant’s political activism in the United Kingdom was not genuine [30]. These unchallenged findings significantly damage the appellant’s credibility and cause us to treat what he said in evidence to us with considerable circumspection.

11. The appellant has adduced evidence of communication with a friend in Iraq (KA) regarding the death of a woman he claims to be his aunt. At the time of the Judge’s decision (16 July 2024), the appellant’s aunt was found still to be alive [40]. However, the woman’s death certificate gives her date of death as 11 July 2020. There are a number of other issues with the appellant’s online ‘chat’ with KA which suggest that it might not be entirely reliable (such as the friend being in Sulaymaniyah at 09:25 but apparently back in Erbil and having gone to the aunt’s house and spoken to a neighbour by 12:05 and then having been able to speak to the Mukhtar, obtain a copy of the death certificate and attend the aunt’s grave by 13:21). However, the appellant’s case is problematic even if the chat is reliable and the appellant’s aunt did in fact die in 2020.

12. The appellant’s bundles contained no evidence about difficulties which he might experience getting out of Ebril airport and onward to the local Civil Status Affairs Office. Mr Ahmed relied instead on the following extracts from the CSID:

'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).

5.1.3 The Inspection Report on Country of Origin information, Iraq and Myanmar (Burma) undertaken by the Independent Chief Inspector of Borders and Immigration (ICIBI), published June 2023 (ICIBI report June 2023), quoting Dr Rebwar Fateh, an expert witness on the Middle East, stated:

‘If a failed asylum seeker is returned to Iraq without an ID document, they will be detained at the airport.

a) The returnee will then be interviewed to give some indication of whether they are from their claimed governorate or region (through dialect, accent etc.). From the returnee’s Kurdish or Arabic dialect, the officer will be able to tell whether the returnee is from Iraq or not.

b) At this time, the returnee’s claimed name and address will also be cross referenced against suspect names in possession of the security services.

c) Next, the returnee will be asked to phone their immediate family to bring their ID.

d) If they claim to have no immediate family, the returnee will be asked to contact a paternal uncle or cousin for their ID.

e) If this is negative too, another relative will come to the airport with their own IDs to act as a guarantor for the returnee. This would allow the returnee a seven-day residency permit pending proof of identity.

f) During this period, the returnee needs to obtain their own ID or provide evidence that they are in the process of obtaining an ID – such as a letter from the nationality department to show that their ID is pending via the usual procedure.

g) If the returnee has no such luck, they must find a local Mukhtar [local chief or village elder] by the seventh day who can provide a letter in exchange for a small fee which states that the person is who they say that they are, that they are from the claimed neighbourhood, and that they are in the process of obtaining an ID.

h) If the Mukhtar cannot identify the returnee, they will need two witnesses to come forward who know them and can provide evidence on their identity.

i) The returnee then needs to apply in writing to the nationality department. Here, they will be interviewed by the chief and the witnesses will ned [sic] to give evidence under oath, stating how they know the returnee.

j) Once the chief has been convinced, the process of obtaining the ID will start. Once these steps have been completed, the returnee needs to communicate back to the security services at the airport, or their guarantor will face legal consequences.’

6.15.1 The January 2021 UNHCR report stated that:

‘… [S]ecurity clearance from relevant security agencies is generally needed in all areas, irrespective of the person’s profile/origin. Sunni Arabs and Sunni Turkmen from formerly ISIS-held or conflict-affected areas may be denied security clearance or run the risk arbitrary arrest and detention under the Anti-Terrorism Law of 2005 (Law No. 13 of 2005) on the basis of broad and discriminatory profiling.

‘… Upon entry to the KR-I (at either an internal border checkpoint or the airports in Erbil or Sulaymaniyah) and following security screening, the Asayish (Kurdish security agency) generally provides such persons with a temporary entry authorization valid for 30 days.’

13. He also relied on headnote 30 of SMO2:

30. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There are no sponsorship requirements for entry or residence in any of the three IKR Governorates for Kurds.

14. Mr Ahmed submitted that these materials suggested that the appellant did not have the contacts necessary in Iraq to secure his entry into the country at the airport, that even if he did he would have to pass through additional screening for which he did not have the necessary identity documents, and that he would in any event have to pass through internal checkpoints to reach the Civil Status Affairs Office where he needed to go to redocument himself, again for which he did not have the necessary identity documents. For these reasons, the appellant could not return to Iraq without facing a real risk of conditions in breach of Article 3 ECHR.

15. We are unable to agree that that is what the evidence suggests. In respect of the appellant’s ability to cross the border into the IKR at the airport, it is the appellant’s case that he spent most of his childhood with the aunt and that the address where KA went to find the aunt was ‘my address’ (paragraph 5 of his witness statement dated 12 December 2024). Therefore, the Mukhtar with whom KA spoke was the appellant’s local Mukhtar, who could assist him per paragraph 5.1.3(g).

16. Even if the Mukhtar was unable to identify him, the appellant said in evidence that he had tried to contact several friends in Iraq but no one had been able to help except KA. This in itself suggests that the appellant managed to contact more than just KA. To the extent that the appellant wished to convey that he had no contacts left in Iraq beyond KA, given the Judge’s credibility findings we are simply unable to accept that that is true. In short, we find that the appellant is in contact with at least two individuals in Iraq and, we find, they would be of help to him if necessary per paragraph 5.1.3(h) of the CPIN.

17. We do not accept that the evidence relied upon shows that there would be a further checkpoint at the airport, through which the appellant would be unable to pass without a CSID or INID. We have been given no good reason to conclude that the security screening referred to in paragraph 6.15.1 of the CPIN and headnote 30 of SMO2 is anything other than the process described in paragraph 5.1.3, through which we have concluded above the appellant would be able to pass.

18. Even if there was a further security screening before leaving the airport, we have been given no reason to believe that an individual who had been attested to by the individuals listed in paragraph 5.1.3 would not be allowed through.

19. As for whether the appellant would encounter and be unable to pass through a checkpoint between Erbil airport and the local Civil Status Affairs Office, the evidence relied upon simply does not establish that he would. On the contrary, paragraph 3.6.7 states that the risk of encountering conditions in breach of Article 3 arises only for 'undocumented individuals ‘who would be required to travel to a CSA office in another area of Iraq or the IKR (our emphasis)’. That is not the case for the appellant, who would be remaining in Erbil.

20. In summary, the respondent does not challenge that the Judge’s acceptance that appellant gave his CSID to his agent. However, the appellant would be returned to Erbil airport. The appellant is in contact with individuals who would be able to get his local Mukhtar to attend the airport to vouch for him and so secure his release from the airport, or would be able themselves to help. None of the evidence relied upon shows that he would be at real risk of encountering and being unable to pass through a further checkpoint to reach the local CSA office to redocument himself.

21. For these reasons, the appellant’s appeal fails.

Notice of Decision

22. The decision of the First-tier Tribunal involved the making of a material error of law.

23. We remake the decision by dismissing the appellant’s appeal on all grounds.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025

ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003866

First-tier Tribunal Nos: PA/54546/2023
LP/04112/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE O’BRIEN

Between

MM
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr F Ahmed of Counsel, instructed by Hanson Law Ltd
For the Respondent: Mr C Bates, Home Office Presenting Officer

Heard at Field House on 30 October 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. This is an appeal by the Secretary of State against the decision of First-tier Tribunal Judge Chamberlain (the judge) following a hearing at Birmingham on 3 July 2024, in which she dismissed the appellant’s appeal against the respondent’s refusal of his protection and human rights claim on all grounds save for Article 3.
2. The judge allowed the Article 3 appeal solely on the basis that there was a real risk of suffering treatment contrary to Article 3 if he were returned to Sulaymaniyah, because his home area was Erbil.
3. The Secretary of State sought leave to appeal on 23 July 2024, on the basis that the First-tier Tribunal Judge had erred in law in failing to consider whether there would be such a risk if the appellant were returned to Erbil, that destination being open to the Secretary of State and being the appellant’s local airport.
4. Permission to appeal was granted by First-tier Tribunal Judge Saffer on 21 August 2024 with his reasons being “It is arguable that as the Appellant can be returned to Erbil, he would not have to pass checkpoints between Sulaymaniyah and Erbil to access the relevant office to be redocumented”. In essence the ground permitted was that the judge had failed to consider adequately the question of Article 3 risk and/or in the alternative had failed to give proper reasons for her conclusions.
5. In oral argument, Mr Bates relied on the grounds of appeal as permitted. Mr Ahmed argued that the judge was entitled to take at face value what the refusal letter said, which was that the intention was to return to Sulaymaniyah. In any event, even if the judge had considered the question of return to Erbil, the background evidence before the judge was such that she would have inevitably have reached the same decision.
Conclusions
6. The refusal letter dated 21 July 2023 says at Section 6 ‘feasibility of return’, that:
As you are returnable directly to Sulaymaniyah, it is considered reasonable to expect you to travel between the airport and your CSA office to redocument yourself as there is no evidence to indicate you would encounter any risk or travel through checkpoints during this relatively short journey.
7. Notwithstanding that section’s express reference to Sulaymaniyah, the closing paragraphs (‘Removal from the UK’) includes the statement. ‘However, should you be removed it will be to Arbil, Baghdad, Basra, Najaf or Sulaymaniyah.’
8. Similarly, the October 2023 CPIN, ‘Iraq: Internal relocation, civil documentation and returns’ confirms that returns were, unlike historically, to all international airports, both in Government of Iraq areas and the IKR, and therefore to Erbil as well as Sulaymaniyah.
9. Therefore, even if the judge had overlooked the possibility of return to Erbil expressly stated in the decision letter, she directed herself to that CPIN and so could reasonably have been expected to have read and understood all of the relevant parts, including the possibility of return to Erbil. In any event, as an expert Tribunal, the judge can be taken to be familiar with applicable CPINs.
10. Therefore, in my judgment it would have been necessary for the judge to consider the Article 3 risk arising not just from a return to Sulaymaniyah but also to Erbil, being the appellant’s home area. She failed to do so and thereby failed to resolve a material issue and fell into error of law.
11. Mr Ahmed submitted that the error was immaterial because the appellant would inevitably have to pass through a checkpoint at the airport and secondly would be reasonably likely to pass through an internal checkpoint at some point between the airport and the CSA office, at which his non-documented status would cause him nevertheless to be subject to treatment contrary to Article 3.
12. I cannot accept that submission. At [41], the judge solely considers the issue of return to Sulaymaniyah, considers the Secretary of State’s statement that it is reasonable to expect the appellant to travel between the airport and the CSA office to redocument, and indicates that it is contrary to SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 (IAC) and paragraph 3.6.7 of the CPIN. The latter is part of the executive summary which describes the likelihood of encountering treatment when travelling internally which would justify the grant of humanitarian protection. The judge then goes on at paragraph 42 to say:
“I find the appellant would not be able to progress from there without ID documentation given that there are checkpoints within the IKR. Further, the respondent accepted that the appellant was from Erbil, not Sulaymaniyah, so the appellant would have to travel further than is asserted by the respondent in the decision. He does not have a CSID which could be brought to him at the airport. Accordingly, I find that the appellant would be at risk in accordance following the respondent’s most recent guidance in the October 2023 CPIN. ”
13. The judge’s finding that the appellant would be at risk is at least partly predicated on his having to travel from Sulaymaniyah to Erbil. I cannot simply ignore that finding as being part of the judge’s rationale. It therefore cannot be said the judge would inevitably have come to the same conclusion had she realised as, I find, she ought to have done that a return to Erbil was feasible and indeed was by then part of the practice of the respondent.

Notice of Decision
1. The judge’s decision on the appeal on s84(1)(a) grounds is not challenged and therefore stands.
2. The judge’s decision on the appeal on s84(1)(b) & (c) grounds did involve the making of an error of law, and the appeal is allowed.
3. The decision shall be remade in the Upper Tribunal.
4. All findings are preserved save those in [41-43].
Directions:
1. Mr Ahmed shall by 1 November 2024 provide to the Tribunal his availability.
2. The appellant shall by 4pm on 13 November 2024 file and serve his witness statement and any background evidence relied upon dealing with the issue of redocumentation and arising risks, and specifically the risks he might face on return by air to Erbil, bound together in an indexed and paginated bundle.
3. The hearing to remake the decision shall be listed for the first available date thereafter in accordance with Mr Ahmed’s availability with a time estimate of 3 hours, to be heard by Upper Tribunal Judge O’Brien (but releasable to another judge if that is not reasonably practicable).
4. The hearing shall be listed face-to-face in Birmingham if possible.
5. A Kurdish (Sorani) interpreter shall be booked for the hearing.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 November 2024