Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005605

First-tier Tribunal No: PA/65304/2023

LP/04761/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21st March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE R THOMAS KC

Between

MAS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr K Khan, instructed by Kings Law Solicitors
For the Respondent: Ms A Everett, Senior Home Office Presenting Officers

Heard at Field House on 6 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, [the appellant] (and/or any member of his family, expert, witness or other person the Tribunal considers should not be identified) 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The Appellant is a national of Iraq of Kurdish ethnicity.

The protection claim
2. The Appellant’s account was that he had joined the Peshmerga in 2013. From August 2017, he was a guard for an important general in the PUK who was a member of the Scherchi tribe. He commenced a secret relationship with the general’s daughter. This was extremely risky, given such a relationship would not be sanctioned and given the particularly conservative approach of the tribe and the father’s powerful position.

3. On 10th September 2019, the Appellant and his girlfriend were caught by her younger brother who told the family. The Appellant was accused of tarnishing the reputation and honour of the family and his life threatened.

4. The Appellant fled to Sulaymaniyah and went into hiding. He was made aware of efforts that were being made by the general to locate him, with the death threats continuing. The Appellant went to the PUK office, seeking protection. The PUK said they were unable or unwilling to intervene, giving the explanation that it was an issue of family honour.

5. The Appellant’s and his father concluded that he would have to flee to a safe country.

6. In rejecting the Appellant’s protection claim, the Respondent accepted the Appellant was of Kurdish ethnicity but did not accept the bulk of his account, in particular that he was facing a threat from a powerful general in the PUK. The negative credibility finding was on the basis the account was inconsistent and lacking in detail. In any event, the Respondent’s position was that even if the “key material facts of your claim had been accepted” then “[i]t is considered you could locate to Erbil or Duhok or within your country of origin”.

The hearing before the FtT
7. Having heard the evidence, the FtTJ was satisfied the Appellant had given a credible account of his relationship and how they had been discovered. The FtTJ found “the Appellant to have been very level in his evidence and did not try to bolster or embellish the narrative” and that he had been “candid”. He accepted the Appellant’s submissions on key areas where the Respondent had alleged there were inconsistencies. The positive credibility findings and the reasoning behind those conclusions are set out in detail in paragraphs 29(a)-(h).

8. As to the availability of protection, the FtTJ went on (at paragraph 30) to accept the Appellant’s evidence that he had sought protection from the PUK in Sulaymaniyah “but was told they could not intervene because it was a matter of honour”, noting it was consistent with the objective evidence.

9. However, in what was a brief treatment of a key issue, the FtTJ was not satisfied “that the Appellant could not safely relocate” and further, given, inter alia, that the Appellant was of working age with a CSID, he was not satisfied “that relocation would be unduly harsh”. It was on this basis that he dismissed the protection claim, and it is on this approach to internal relocation that the appeal is advanced.

10. The FtTJ rejected any claim based on his private life (both within and outside the Rules). There is no appeal against this finding.

Grant of Leave
11. Leave was granted by the FtT on the grounds that the FtTJ gave inadequate reasons for finding the Appellant could safely relocate and that it was reasonable for him to relocate.

The parties’ submissions
12. Mr Khan adopted the grounds of appeal. He submitted the FtTJ’s reasoning was inadequate and there was no explanation for how the FtTJ reached the conclusion that whilst protection was not available in Sulaymaniyh he could be satisfied it was available elsewhere. He submitted that given the extensive positive credibility findings, the FtTJ should have given weight to the fact the Appellant had consistently explained that the reach of the general and his tribe was wide and that protection wasn’t available (see e.g. questions 187-191 in his asylum interview).

13. Ms Everett submitted that however positive the credibility findings may have been, it didn’t assist the Appellant on what she submitted were objective matters, namely the scope of the tribe’s reach and the lack of protection. She submitted that there was a dearth of evidence on this topic and, even applying the requisite lower standard of proof, the Appellant had failed to make out his case on risk in Erbil and Donuk. She further emphasised that the burden was on the Appellant to prove that internal relocation was unreasonable.

14. The correct approach to internal relocation is found in Januzi v SSHD [2006] 2 AC 426, but plainly if an Appellant would remain at risk in the area to which it is suggested he relocate, then the test remains one of real risk of ill treatment: see Baroness Hale in Secretary of State for the Home Department (Appellant) v. AH (Sudan) and others (FC) (Respondents) [2008] 1 AC 678.

21. We are also all agreed that the test for internal relocation under the Refugee Convention is not to be equated either with a “well-founded fear of persecution” under the Convention or with a “real risk of ill-treatment” contrary to article 3 of the European Convention on Human Rights. By definition, if the claimant had a well-founded fear of persecution, not only in the place from which he has fled, but also in the place to which he might be returned, there can be no question of internal relocation. The question pre-supposes that there is some place within his country of origin to which he could be returned without fear of persecution. It asks whether, in all the circumstances, it would be unduly harsh to expect him to go there. If it is reasonable to expect him to go there, then he can no longer claim to be outside his country of origin because of his well-founded fear of persecution. Mercifully, the test accepts that if it is not reasonable to expect him to go there, then his continued absence from his country of origin remains due to his well-founded fear of persecution.

22. Further, although the test of reasonableness is a stringent one - whether it would be “unduly harsh” to expect the claimant to return - it is not to be equated with a real risk that the claimant would be subjected to inhuman or degrading treatment or punishment so serious as to meet the high threshold set by article 3 of the European Convention on Human Rights. As Lord Bingham points out, this is not what was meant by the references to article 3 in Januzi, including what was said by my noble and learned friend, Lord Hope of Craighead, when he referred to “the most basic of human rights that are universally recognised” at para 54. Obviously, if there were a real risk of such ill-treatment, return would be precluded by article 3 itself as well as being unreasonable in Refugee Convention terms. But internal relocation is a different question.

Risk of ill treatment in the area to which the Appellant would relocate
15. Having given very careful treatment to the Appellant’s credibility and the risk assessment in Sulaymaniyah, in one short paragraph the FtTJ concluded that the Appellant would not be at risk in Erbil and Donuk. He was prepared to accept that it may be that the general’s tribe was large and could be found all over Iraqi Kurdistan but held “it is a leap to be able to say that through that they are, as a tribe, sufficiently linked and capable, to be motivated and able to trace the Appellant”. In the event he was wrong about that conclusion, it was also a leap to say that the Appellant would not be able to avail himself of protection in those other areas.

16. That was a sparce treatment of a complex aspect of the Appellant’s claim. Whilst it is right to say that the burden was on the Appellant, the evidential position was that:

(i) The Appellant had given what the FtTJ accepted was credible evidence about the risk he faced from a powerful general of a large tribe.
(ii) The FtTJ had accepted that the Appellant had sought protection, but the PUK would not protect him because it was a matter of honour.
(iii) The FtTJ had found that the reluctance to intervene was consistent with how the authorities approached matters of honour, and found that there was no reason why the state treatment described in the CPIN: Iraq: ‘Honour’ crimes would be any different with a male.
(iv) That CPIN made plain the reluctance of the authorities (across the region) to provide effective protection in cases involving matters of honour, and noted the extent of the tribal justice system. Whilst the possibility of internal relocation was not excluded, it was important to take into account “in particular the power/reach of the agent of persecution, given that some tribes are powerful and influential within Iraq and the IKR”.
(v) The Appellant (a credible witness) had given consistent evident evidence about the scope of the general’s power and that of his tribe. The FtTJ was prepared to accept that may be the case (at paragraph 30).

17. The Appellant relied on the observations of Lord Brown in South Bucks County Council v Porter [2004] 1 WLR 1953, (cited with approval in TC (PS Compliance – “Issues-based reasoning”) Zimbabwe [2023] UKUT 164 (IAC)):

36. The reasons for a decision must be intelligible and they must be adequate. The must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.

18. It is important to note that Lord Brown emphasised that such adverse inferences will not be readily drawn. However, given the evidential position, the lack of reasoning by the FtTJ does leave a substantial doubt that the FtTJ erred in law by failing to take into account relevant matters and/or applying too onerous burden of proof when assessing the real risk of ill-treatment in Erbil and Donuk.

Reasonableness of internal relocation
19. It is unnecessary therefore to consider also the FtTJ’s assessment of whether it was reasonable (in the sense of not being unduly harsh) to internally relocate to a safe alternative area. Whilst the FtTJ has plainly addressed relevant matters in paragraph 32, the correct approach is to internal relocation (both safety and then, if appropriate, reasonableness) should be considered together at a remitted hearing.

20. The FtTJ provided carefully reasoned conclusions on the credibility findings and the assessment of risk in Sulaymaniyah. They should be preserved. As stated above, there was no appeal against the private life claim.

Notice of Decision

The appeal is allowed and the case remitted to the First Tier Tribunal with the preserved credibility findings at paragraph 29(a)-(h) of the FtTJ’s Decision and Reasons.

Richard Thomas KC

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

8th March 2025