United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/01311/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at North Shields	Decision and Reasons Promulgated
On 21 February 2019	On 26 February 2019

 

 

Before

 

UPPER TRIBUNAL JUDGE GLEESON

 

 

Between

 

A A

[ANONYMITY ORDER made]

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation:

For the appellant: Ms Sarah Rogers, Counsel
instructed by the Immigration Advice Centre

For the respondent: Ms Rhona Petterson, a Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

Anonymity order

The First-tier Tribunal made an order pursuant to Rule 13 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.  I continue that order pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008: unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall identify the original appellant, whether directly or indirectly. This order applies to, amongst others, all parties. Any failure to comply with this order could give rise to contempt of court proceedings.

1.              The appellant appeals with permission against the decision of the First-tier Tribunal refusing him international protection on asylum or humanitarian protection grounds, or leave to remain in the United Kingdom on human rights grounds. The appellant is a citizen of Iran, of Kurdish ethnicity, born and formerly habitually resident in Iraq.

2.              The appellant claimed that he could not return to Iran, because of his late father's KDPI activities, nor to Iraq, because of his association with the interpreter son of his foster family.

3.              The respondent in his refusal letter of 1 February 2017 did not seek to return the appellant to Iran. He decided that the appellant could lawfully be returned to Iraq, of which he found the appellant was probably a citizen, without any breach of the United Kingdom's international obligations.

4.              The appellant subsequently produced a birth certificate from the Al Tash camp in Iraq, which records the Iranian citizenship of both his parents. The respondent has attempted to verify that birth certificate with the UNHCR but without response to date.

5.              At the hearing today, and having regard to the lower standard of proof applicable in international protection claims, Ms Petterson accepted that the appeal should be approached on the basis that the appellant was a citizen of Iran, not Iraq. There has been no further refusal letter dealing with the risk to the appellant in Iran.

Background

6.              The appellant was born in the Al Tash camp in Iraq in December 1986, to Iranian citizen parents who are said to have fled Iran because of his father's involvement in Iran with the Kurdish Democratic Party of Iran (KDPI). The appellant has never lived in Iran. He had been ordinarily resident in Iraq for all his life before coming to the United Kingdom. The appellant's parents died in the camp when he was young, his father when he was six and his mother when he was 10 (so in 1992 and 1996).

7.              The appellant then lived as an informal member of another family in the Al Tash camp and later, in Rawa camp, where the family occupied a house which belonged to an American, and one of their sons worked for the American forces as an interpreter. There are said to have been serious difficulties between that family and a Shi'a terrorist group, by reason of the foster family's interpreter son's activities. Ms Rogers accepts however that as the arrangement of the appellant living with that family was informal, there would be no record of his involvement with that family and it would not now give rise to a risk on return.

8.              The appellant left Iraq to come to the United Kingdom via Turkey and claimed asylum on 18 May 2008, describing himself as a self-employed shoe polisher. He said he had arrived in the United Kingdom the previous day, clandestinely by lorry.

Refusal letter

9.              In a refusal letter dated 1 February 2017, the respondent decided that the appellant could be returned to Iraq, his country of former habitual residence, without breaching the United Kingdom's international obligations.

10.          Fingerprint records show that the appellant claimed asylum in Italy on 21 November 2007. He arrived clandestinely in the United Kingdom, he says on 17 May 2008, and claimed asylum on that date, but then absconded, fearing return to Iraq. Four years later, on 3 January 2012, the appellant surfaced and asked for an asylum interview. He was interviewed on 18 June 2012 but the interview was suspended due to his health problems. He was interviewed on 13 May 2013 and 20 January 2017.

11.          When interviewed, the appellant knew very little about either Iraq or Iran. He was particularly lacking in geographical knowledge about capital cities and countries which bordered Iraq. The respondent considered that the appellant's lack of knowledge about Iraq was not consistent with his having lived in an Iraqi refugee camp for over 20 years, and/or having been born there, and that his description of the camp he said he was in (Al Tash, in Ramadi) was not consistent with publicly available description of life in the camps nor with maps showing the surrounding areas.

12.          The respondent did not believe either that the appellant was an Iranian citizen and the son of a KDPI activist, or that he was involved with a family, one of whose sons was an American interpreter, and who had a house owned by an American. The respondent considered that the appellant was an Iraqi citizen seeking to portray himself as a Kurd, that he had never lived in a camp at all and that the interpreter story was fabricated.

13.          The respondent refused international protection and then considered the appellant's medical condition, cystic echinococcosis, a disease caused by a particular type of tapeworm, finding that it could be treated in Iraq and was not an exceptional circumstance for which leave to remain should be granted outside the Rules.

First-tier Tribunal decision

14.          The First-tier Tribunal identified multiple problems with the appellant's account, in particular with the dates therein and the things he said about the camps where he had lived. At [61], the Judge accepted that while it was difficult to make a precise finding on the appellant's origins, he could not conclude with any certainty that the appellant originated from the IKR. He accepted that the appellant faced a real risk of serious harm from non-state agents in Baghdad or the south of Iraq (there is a mystifying reference to persons acting on behalf of non-State agents, which I disregard, as such individuals would also be non-State agents). The Judge concluded:

"61. It is difficult to make a precise finding on the origins of the appellant. I cannot with any certainty conclude on his geographical origins in [IKR]. I find however for the reasons given that the appellant is not a refugee. Although I accept that he faces a real risk of serious harm from non-State agents or from those acting on their behalf should he be returned to Baghdad or the south of Iraq. The alternative of a return to the [IKR] remains at this point an option which is dependent on whether he is from that region. I am aware that this can be checked by the authorities in the [IKR] by pre-clearing."

15.          Very similar findings appear also at [66] in the decision. At [67] the Judge concluded that the appellant had not been truthful about his family background in Iraq and 'there remains the possibility that he has support and can be assisted by family in the [IKR]'. There was no up-to-date evidence about the appellant's medical condition which could support any conclusion that he still needed specialist treatment.

16.          The First-tier Tribunal dismissed the appeal and the appellant appealed to the Upper Tribunal.

Permission to appeal

17.          Permission to appeal was granted on the basis that, the Judge having accepted that the appellant could not safely be returned to Baghdad or the south of Iraq, he had erred in law in failing to make a finding of fact as to whether the appellant came from the IKR or a contested area, which, together with the difficulties in obtaining a CSID, arguably made her consideration of internal relocation unsound.

Rule 24 Reply

18.          The respondent did not file a Rule 24 Reply.

19.          That is the basis on which this appeal came before the Upper Tribunal.

Upper Tribunal hearing

20.          The appellant's Iranian nationality was disputed by the respondent in his refusal letter but is now accepted, as the appellant has produced a birth certificate recording his birth in the Al Tash camp in Iraq, in the contested area of Ramady. The respondent has not yet made any decision in which the appellant's return to Iran, his country of nationality, is contemplated and the appeal today turns only on return to Iraq.

21.          Ms Rogers accepted that as the appellant was never a member of his informal foster family, any record of his living with them would be most unlikely, and there is therefore no real risk to him from that family's American associations through their interpreter son, even if that account were accepted.

22.          Ms Rogers further accepted that the appellant can succeed only if he can show a generalised risk to him in Iraq under pursuant to Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive) and paragraph 339CA(v) of the Immigration Rules HC 395 (as amended).

23.          When making the First-tier Tribunal decision, the Judge did not have the benefit of the country guidance given by the Upper Tribunal in AAH (Iraqi Kurds - internal relocation) (CG) [2018] UKUT 212 (IAC), promulgated on 26 June 2018.

24.          There is no clear finding of fact in the First-tier Tribunal decision as to whether the appellant comes from the IKR or a contested area of Iraqi Kurdistan. On the evidence now before the Tribunal, Ms Petterson accepts that the appellant has demonstrated that he comes from a contested area, one of the last strongholds of ISIL which is not within the IKR and that this appeal falls to be allowed on that basis.

25.          Ms Rogers did not pursue the Article 8 ECHR arguments before me and I therefore allow the appeal only under Article 15(c), by way of humanitarian protection, and dismissing both the Refugee Convention and human rights appeals.

 

DECISION

26.          For the foregoing reasons, my decision is as follows:

The making of the previous decision involved the making of an error on a point of law.

I set aside the previous decision. I remake the decision by allowing the appeal on humanitarian protection grounds.

 

 

Date: 21 February 2019 Signed Judith AJC Gleeson Upper Tribunal Judge Gleeson