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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/13453/2018

 

 

THE IMMIGRATION ACTS

 

 

Heard at Manchester Civil Justice Centre	Decision & Reasons Promulgated
On 22 nd March 2019	On 2 nd April 2019

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE M A HALL

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

OH

(ANONYMITY DIRECTION MADE)

Respondent

 

 

Representation :

For the Appellant: Mr A Tan, Senior Home Office Presenting Officer

For the Respondent: Mr K Iqbal of Primus Solicitors

 

 

DECISION AND REASONS

Introduction and Background

1.              The Secretary of State appeals against a decision of Judge Holt (the judge) of the First-tier Tribunal (the FtT) promulgated on 10 ^th January 2019. The Respondent before the Upper Tribunal was the Appellant before the FtT and I will refer to him as the claimant. He made an international protection and human rights claim. He claimed that he is of Kurdish ethnicity, originates from Mosul, and feared returning to Iraq because of a blood feud involving his family.

2.              The Respondent refused the application on 1 ^st November 2018 and the appeal was heard on 3 ^rd January 2019.

3.              The Secretary of State was not represented by a Presenting Officer before the FtT. The judge heard evidence from the claimant. The judge noted that the claimant had given conflicting accounts, and rejected his claim that his family had been involved in a blood feud. The claimant had claimed that he left Iraq with his family in 2013 and fled to Syria, but in an earlier account claimed that he left Iraq in 2003 and travelled to Syria where he remained until 2014 when he went to Turkey.

4.              The judge rejected the account that the claimant had left Iraq in 2013, finding that he and his family had left in 2003.

5.              The judge found that the claimant had exaggerated or lied about elements of his claim but found that he is an Iraqi Kurd and that he cannot return to his home area in the Kurdistan Region of Iraq (the KRI). The judge was satisfied that the claimant does not have a CSID card and found that he would have no way of gaining access to such a card.

6.              The judge found that the claimant could not return to the KRI and found at paragraph 27 that the claimant has no family, contacts or other "way in" to Iraqi Kurdish society. Because of the claimant's lack of identity documents he would not be able to regularise his status in Iraq even outside the KRI.

7.              The judge allowed the appeal on asylum grounds and with reference to Articles 2 and 3 of the 1950 European Convention.

The Application for Permission to Appeal

8.              The Secretary of State submitted that the judge had erred in law by rejecting the claimant's account of a blood feud but then allowed the appeal on asylum grounds.

9.              It was contended that the judge had erred by not properly considering country guidance case law, which provided guidance upon obtaining identity documentation.

10.          It was contended the judge had failed to give adequate reasons, by finding that the claimant would be unable to obtain a CSID. The Secretary of State described the judge's finding as speculative. The claimant had made no attempt to contact his family and there was no evidence that he could not do so.

11.          It was contended that the judge had mistakenly found that any direct flights from the UK would only go to Baghdad. The latest country information on Iraq indicated that this was not the case and there were direct flights to the KRI.

12.          It was submitted that the judge was wrong to stress at several points in the decision, that the claimant's account was unchallenged by the Home Office. It was contended that the judge was wrong to proceed in the absence of a Presenting Officer, and wrong to fail to obtain consent from the Secretary of State before considering a new matter, it being contended that the claim by the claimant that his family were in Jordan was a new matter and had not previously been considered by the Secretary of State.

The Grant of Permission

13.          Permission to appeal was granted by Judge Scott-Baker in the following terms;

"3. The judge records at [4] that the Respondent was unrepresented at the hearing and there was no explanation for that nonattendance. In such circumstances it was open to the judge to proceed as there were no other obstacles to him considering the appeal. However as a result the findings at [23] and [27] that evidence was unchallenged cannot be used as a substitute for reasoned findings and arguably the assessment of credibility may arguably be flawed as a result thereof.

4. It was accepted at [24] that the Appellant held no CSID but arguably the finding that he had no way of gaining access to it now was inadequately reasoned, as was the issue of return to the Kurdish area at [26]. There was arguably insufficient consideration of the CG cases of AA and AAH (Iraqi Kurds - internal relocation) CG [2018] UKUT 212.

5. While seemingly a typographical error to allow the appeal on asylum grounds as opposed to humanitarian protection this does lead to a possible misunderstanding of the decision, the issue as to the whereabouts of the Appellant's parents however cannot arguably be deemed a new matter as the location of his family was a factor to be considered and had been an issue before the Respondent."

14.          Directions were given that there should be an oral hearing before the Upper Tribunal to ascertain whether the FtT decision contained an error of law such that it must be set aside.

My Analysis and Conclusions

15.          The judge did not err in proceeding with a hearing in the absence of a Presenting Officer. The Secretary of State did not provide a Presenting Officer but did not request that the hearing be adjourned. There is no merit in the Secretary of State's contention that the judge erred in failing to seek the permission of the Secretary of State to consider a new matter. The Secretary of State errs in contending that the issue of the claimant's family being in Jordan is a new matter. That is not a new matter, as it was claimed in the claimant's asylum interview that his family no longer lived in Mosul but lived in Jordan.

16.          In my view the judge errs in law in allowing the appeal on the basis that the claimant is entitled to asylum. This contradicts the finding made by the judge at paragraph 20, that it was not accepted that the Appellant and his family had been involved in a blood feud. The basis of the claimant's asylum claim was the blood feud. As the judge rejected this, and also rejected the claimant's claim that he remained in Iraq until 2013, there was no basis to allow the appeal on asylum grounds.

17.          The judge erred in law at paragraph 24 in referring to the claimant being unable to return to his home area in the KRI. This discloses a material misunderstanding of the claimant's claim. It was never the claimant's case that he originated from within the KRI. His case, as noted by the judge at paragraph 9 was that he originated from Mosul which is not within the KRI.

18.          The judge also erred at paragraph 24 in finding that the Appellant

"Does not have a CSID card and I am satisfied he has no way of gaining access to it now. It was the claimant's case, as he explained in his asylum interview that he had been issued with a CSID card in Mosul but he had left the card behind when he left his home" .

The judge does not adequately explain why it is found that he would have no way of gaining access to a CSID card. The judge does not refer to guidance given in country guidance case law, on obtaining a CSID while in the UK upon which guidance was given at paragraphs 173-177 of AA Iraq CG [2015] UKUT 544 (IAC), and obtaining a CSID while in Iraq upon which guidance was given in the same case at paragraphs 178-187.

19.          Further guidance was given by the same expert, Dr Fatah in AAH Iraq CG UKUT 212 (IAC) at paragraphs 100-107. Dr Fatah confirmed to the Upper Tribunal in AAH that the guidance given in AA Iraq [2015] remained valid but there were two caveats. One was that the Iraqi civil registration system is in disarray, in that ISIS, between 2014 and 2017 closed down all of the relevant offices in areas under its control, and the second was that the anecdotal evidence on the willingness of officials to assist undocumented IDPs is not promising.

20.          However the judge does not demonstrate that any of the guidance has been considered. In very brief summary the guidance is that an Iraqi national who has an expired or current Iraqi passport but no CSID may be able to obtain a CSID through the consular section of the Iraqi Embassy in London. This would be the case if the individual is able to produce a current or expired passport and/or the book and page number for their family registration details. If the individual is unable to produce such a passport or cannot produce the relevant family registration details, a power of attorney can be provided to a friend or relative or lawyer in Iraq who can thereafter undertake the process of obtaining the CSID from the Civil Status Affairs Office in their home governorate. Dr Fatah confirmed that the process of giving a power of attorney to a lawyer in Iraq to act "as a proxy" is commonplace and the power of attorney could be obtained through the Iraq Embassy in London.

21.          Guidance is given that the ability to obtain a CSID is likely to be severely hampered if the CSA office is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala.

22.          The findings made by the judge at paragraph 25 are made on the basis that the claimant has no CSID card nor access to a replacement. As the judge has not considered the appropriate country guidance on this point, I find this to be a material error of law.

23.          At paragraph 27 the judge makes reference to unchallenged evidence. While it is the case that the claimant's evidence was not challenged at the hearing, due to the absence of a Presenting Officer, it is not accurate to conclude that the claimant's case was not challenged by the Secretary of State. By way of example the judge finds, on unchallenged evidence, that the claimant has no family, contacts or other "way in" to Iraqi Kurdish society. The Secretary of State makes it clear at paragraph 44 of the refusal decision that this is not accepted. In that paragraph the Secretary of State specifically rejected that the claimant had lost contact with his family in Iraq, and contended that he would have family support on return, noting that he had not shown that he would not have been able to obtain the necessary ID documentation. In addition the Appellant's own case, as described in his asylum interview was that he did have extended family in Iraq, as he confirmed that his aunt lives in Bardarash which is within the KRI, and he also had distant relatives in Mosul.

24.          For the reasons given above I conclude that there are material errors of law within the FtT decision which render the decision unsafe. There are mistakes of fact, inadequacy of reasoning, and a failure to apply country guidance case law. The decision of the FtT is set aside.

25.          Having considered paragraph 7 of the Senior President's Practice Statements, I find that it is appropriate to remit the appeal back to the FtT to be heard again. This is because of the nature and extent of judicial fact-finding that is going to be necessary.

26.          The parties will be advised of the time and date of the hearing in due course. The appeal is to be heard by an FtT Judge other than Judge Holt.

Notice of Decision

The decision of the FtT discloses a material error of law and is set aside. The appeal is allowed to the extent that it is remitted to the FtT with no findings of fact preserved.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the claimant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. Failure to comply with this direction could lead to contempt of court proceedings. This direction is made because the claimant has made a claim for international protection.

 

 

Signed Date 27 ^th March 2019

 

Deputy Upper Tribunal Judge M A Hall

 

 

TO THE RESPONDENT

FEE AWARD

 

The Upper Tribunal makes no fee award. The issue of any fee award will need to be considered by the FtT.

 

 

Signed Date 27 ^th March 2019

 

Deputy Upper Tribunal Judge M A Hall