Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004615

First-tier Tribunal No: PA/52263/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of February 2025

Before

UPPER TRIBUNAL JUDGE HIRST

Between

OK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms Norman of counsel, instructed by Barnes Harrild & Dyer Solicitors
For the Respondent: Mr Ojo, Senior Home Office Presenting Officer

Heard at Field House on 11 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 from the determination of First Tier Tribunal Judge Juss promulgated on 13 July 2024 dismissing his appeal on protection and human rights grounds.

Background to the appeal
2. The Appellant is an Iraqi citizen of Kurdish ethnicity. His original asylum claim was dismissed on 6 March 2019 and his subsequent appeal was dismissed by First Tier Tribunal Judge Blake on 28 August 2019, who made adverse credibility findings. On 6 February 2020 the Appellant made further submissions which were refused on 6 April 2021. On 11 November 2022 the Appellant again made further submissions which were refused on 30 March 2023, giving rise to the instant appeal.
3. The basis of the Appellant’s claim and appeal was that he feared persecution or serious harm by the Kurdish Regional Government (‘KRG’) on the basis of his actual or imputed political opinion, including his sur place activities in the UK, and/or that he was at risk of serious harm due to the security situation in Iraq. The Appellant further asserted that his removal would breach his human rights under Articles 3 and/or 8 ECHR.
4. The First Tier Tribunal dismissed the appeal. The judge adopted the previous credibility findings of FTTJ Blake; he found that the Appellant’s sur place activity would not put him at risk on return, and that the Appellant was in contact with family and friends in Iraq so could obtain identity documentation.
5. The Appellant sought permission to appeal, which was granted on 7 October 2024 by First Tier Tribunal Judge Handler. Permission was limited to the Appellant’s third ground, which was that the First-tier Tribunal had erred in assessing the evidence relevant to identity documentation. On 17 October 2024 the Respondent filed a Rule 24 response opposing the appeal.
6. The appeal came before me at an error of law hearing on 11 December 2024. Having heard submissions I reserved my decision.
Submissions of the parties
7. On behalf of the Appellant, Ms Norman’s submissions followed closely the grounds of appeal. In summary, she submitted that:
a. FTTJ Blake had previously found that the Appellant’s father was in Iran but that he had maternal uncles in Iraq with whom he was in contact. The judge had adopted those findings but failed to consider or make findings as to what meaningful assistance the Appellant’s uncles could give to him. That error was material given that the evidence in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 00110 was that the system was patrilineal and the Appellant had no paternal relatives in Iraq;
b. The judge had misdirected himself by reference to SMO in finding that the Appellant could obtain an INID with his family’s help, as the country guidance indicated that the Appellant would have to attend in person to the relevant CAS for biometrics.
c. The judge had failed to give reasons for rejecting the Appellant’s account of attempting to re-document himself in the UK.
8. The Respondent’s Rule 24 response noted that although the judge had referrred [at §27] to the previous 2022 version of the Country Policy and Information Note (‘CPIN’), that was not material to his decision. The October 2023 version of the CPIN showed at §5.1.3 that a returnee could obtain identity documentation via a relative acting as guarantor, following which he would be granted a seven day residency permit which would allow him to obtain documentation.
9. In oral submissions, Mr Ojo noted that the Appellant had accepted that his CSID documents were in his home village. The Appellant was in contact with his maternal relatives and the CPIN demonstrated that he could obtain a temporary residency permit via a relative acting as guarantor, which would enable him to obtain his CSID and thereby obtain an INID. It was open to the judge to find that the Appellant could access his documents. The judge could not be criticised for failing to refer to the Appellant’s efforts to redocument himself because it had not been raised in submissions or in the Appellant’s skeleton argument.
Error of law
10. The issue in this appeal is a narrow one, namely whether the judge erred in finding, on the evidence before him, that the Appellant would be able to obtain identity documentation and was not therefore at risk on return.
11. The relevant country guidance case is SMO & KSP (Civil status documentation: article 15) Iraq CG [2022] UKUT 00110 (IAC) (‘SMO2’), which includes the following guidance:
a. Residents of the Iraqi Kurdish region (‘IKR’) will be returned to that region and other Iraqis will be returned to Baghdad;
b. Travel within Iraq requires either a Civil Status Identity Card (‘CSID’) or an Iraqi National Identity Card (‘INID’), without which an individual is at risk of treatment contrary to Article 3 ECHR. Neither an Iraqi passport nor a laissez passer is recognised as proof of identity for internal travel by land;
c. CSIDs are being phased out and replaced by INIDs. To obtain an INID, an individual must personally attend the Civil Status Affairs (‘CSA’) office to enrol biometrics. Where a CSA office does not have the requisite terminal to issue an INID, it is likely to issue a CSID;
d. Where an Iraqi national of Kurdish origin is in possession of a valid CSID, the journey from Baghdad to the IKR can be made without a real risk of Article 3 ill-treatment. A returnee without a CSID or INID will face considerable difficulty in making that journey. Once in the IKR, a returnee would be permitted to enter and reside with no further impediments;
e. If a returnee has family members living in the IKR cultural norms would require that family to accommodate him, and such a person is likely to have sufficient assistance to lead a ‘relatively normal life’, but the extent of any assistance likely to be provided by family members must be assessed on a case by case basis.
12. It was not in dispute before the First-tier Tribunal that the Appellant is of Kurdish ethnicity and is from Rawanduz in the Erbil Governate. The First-tier Tribunal had found, in the Appellant’s previous appeal, that although he did not have a CSID or INID in his possession, he had a CSID at his home. The First-tier Tribunal had also found in the previous appeal that the Appellant was in contact with family members (maternal uncles) in Erbil and that they could assist him to obtain his CSID. The judge noted those findings at §26; he was required to take them as his starting point.
13. The Respondent’s refusal letter indicated that the Appellant would be removed to Erbil. As the judge noted [§27], evidence in the Respondent’s July 2022 country policy and information note (‘CPIN’) on documentation and returns to Iraq1 indicated that returns were taking place to any airport in Iraq or the IKR, and that removals had been enforced to Erbil and Sulaymaniyah. Because the Appellant would be removed to Erbil, much of the guidance in SMO2 about the feasibility of travel between Baghdad and the IKR therefore did not apply to the Appellant’s appeal.
14. The judge found [§28], as Judge Blake had in the previous appeal, that the Appellant was in contact with his family members in Iraq; the Appellant does not seek to challenge that finding. The judge also concluded at §28 that the Appellant’s family members could assist him to obtain an INID. The Appellant criticises that conclusion on the basis that the judge did not make any specific finding as to whether the Appellant’s maternal uncles would in fact be willing and able to obtain his CSID from his home and give it to him on arrival at the airport.
15. Although the judge referred to the July 2022 CPIN in his decision, he did not make any reference to the October 2023 CPIN which was before him in the Appellant’s bundle and which post-dated SMO2. Paragraph 5.1.3 of the October 2023 CPIN, on which the Respondent relied in the Rule 24 response before the Upper Tribunal, summarises the evidence of Dr Rebwar Fateh quoted in a June 2023 report by the Independent Chief Inspector of Borders and Immigration. Dr Fatah’s evidence as summarised indicates that a failed asylum seeker returned to Iraq without documentation will be detained at the airport and interviewed, following which they will be asked to telephone either their immediate family or “a paternal uncle or cousin” to bring their ID to them at the airport. If they have no immediate family or paternal relative, the October 2023 CPIN suggests that another relative may attend the airport to act as guarantor for the returnee, which will result in the grant of a seven-day residency permit pending proof of identity. The October CPIN is silent on whether a residency permit would permit onward travel to the individual’s home from the airport.
16. Although I consider this to be a finely balanced appeal, I have concluded that the judge did err in his approach to the issue of identity documentation by failing to make the necessary findings of fact or consider relevant and material evidence before him.
17. The judge was considering a situation in which the Appellant would be returned to Erbil without documentation, albeit that he had family members in Erbil who could potentially assist him in obtaining his CSID from his family home. In light of SMO2 and on the evidence before the judge including the October 2023 CPIN, there were several factual questions requiring determination. First, whether the Appellant was likely to be detained on arrival at the airport for lack of documentation. Second, if so, whether the Appellant would come within the category identified in the October 2023 CPIN, as having a relative who could act as guarantor in order for him to obtain a seven-day residency permit. Third, whether in any event the Appellant would be able to travel to his home to collect his CSID, which was required in order for him to attend a CSA to obtain an INID.
18. The judge did not make findings in relation to those questions. Whilst there was no error in the findings at §28 that the Appellant was in contact with his family and they could help him to obtain an INID, those findings were not sufficiently precise or detailed by themselves to determine the issue of risk on return. Nor did the judge consider or refer to the October 2023 CPIN which was before him and was obviously relevant to the question of whether the Appellant would be at risk through lack of identity documentation. Whilst the judge’s decision on the appeal might have been the same had he considered the updated evidence and made relevant findings of fact, it does not seem to me that it would inevitably have been so, and I conclude that there was a material error of law in the decision.

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error of law and is set aside. The appeal is remitted to the First-tier Tribunal for rehearing on the sole issue of whether the Appellant is at risk on return for lack of identity documentation.

L Hirst

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27 January 2025