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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/02944/2020 (V)

 

 

THE IMMIGRATION ACTS

 

 

Heard at Bradford IAC by a remote hearing	Decision & Reasons Promulgated
On 18 August 2021	On 04 October 2021

 

Before

 

UPPER TRIBUNAL JUDGE REEDS

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

m F A

(ANONYMITY DIRECTION made)

Respondent

 

 

Representation :

For the Appellant: Ms H. Aboni, Senior Presenting Officer

For the Respondent: Mr M. Schwenk, Counsel instructed on behalf of the respondent.

 

 

DECISION AND REASONS

 

Introduction:

Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008

Anonymity was granted at an earlier stage of the proceedings because the case involves protection issues. I find that it is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

1.              The Secretary of State appeals with permission against the decision of the First-tier Tribunal (Judge Drake) (hereinafter referred to as the "FtTJ") who allowed his appeal in a decision promulgated on the 9 March 2021.

2.              Permission to appeal that decision was sought and on 4 May 2021 permission was granted by FtTJ Andrew.

3.              The hearing took place on 18 August 2021, by means of Microsoft teams which has been consented to and not objected to by the parties. A face-to-face hearing was not held because it was not practicable, and both parties agreed that all issues could be determined in a remote hearing. I was present at Bradford IAC and conducted the hearing from the tribunal centre. The advocates attended remotely via video. There were no issues regarding sound, and no substantial technical problems were encountered during the hearing, and I am satisfied both advocates were able to make their respective cases by the chosen means.

4.              Whilst the appellant in these proceedings is the Secretary of State, for the sake of convenience I intend to refer to the parties as they were before the First-tier Tribunal.

 

The background:

5.              The background to the appeal is set out in the decision letter and the decision of the FtTJ at paragraphs 15-19. The appellant is a national of Iran (born in Iraq but of Iranian Kurdish ethnicity).

6.              The appellant claimed to have arrived in the United Kingdom on 13 January 2016 claimed asylum. It is recorded that he was invited to attend a substantive interview on 17 June 2016 that he failed to do so, and his claim was refused for non-compliance on 27 ^th of June. Further submissions were lodged in 2017 which were refused on 15 November 2017.

7.              The appeal came before the FtT on the 18 January 2018. The FtTJ did not accept the core of the appellant's account that he had an affair with a woman known as A or that her family had threatened to kill or assault him.

8.              The FtTJ accepted that the appellant could not be returned to Iran based on the fact that he had never lived there, he would not have family there and due to his father's role. However the FtTJ found that he had support from his family in Iraq whom he was still in touch with and that his family were in Kurdistan. The appellant's family were residing in a village in the Sulaymaniyah province of the IKR. The FtTJ found that with the support of the family he would be able to travel to Kurdistan and join them.

9.              By reference to his identification card (refugee card) the FtTJ found that the appellant's own evidence was that he had travelled through roadblocks with that refugee card and whilst it stated "holder is not allowed to roam outside the centre of Al-Anbar province" it would not affect the appellant's ability to travel to the IKR via air or road and that once he was in the IKR there was no evidence to substantiate his claim that he would be removed. The FtTJ found that it would not be unduly harsh for him to relocate to the IKR as he had done in the past with his family. The FtTJ therefore dismissed his appeal.

10.          The appellant applied for permission to appeal that decision which was refused by the FtT and also by the tribunal on 10 August 2018.

11.          The appellant lodged further submissions in a letter dated 14 January 2020. The letter set out that his fresh claim for asylum was based on his activities in the UK which post- dated the refusal of his previous claim. The activities related to his support for Kurdish rights, his attendance political meetings and demonstrations and his dissemination of political information online. It was further asserted that the previous decision that the appellant would be able to obtain a laissez passer to return to Iraq or that he would be allowed to enter and reside in Iraq was not correct. The appellant had been issued a refugee identity card when he was born based on his father status as a refugee and because the appellant was born in a refugee camp. He had not been issued with any Iraqi identification documents or passport and had no residence permit to live in Iraq other than his former refugee identity card which was issued under the Political Refugee Act No. 51 1971. The letter asserted that Article 17 of that Act stated that no refugee shall leave the country without the prior agreement of the Minister, the Minister may not allow refugee to leave the country for more than one month and that only the president may allow refugee to leave the country for a period exceeding one month. The letter asserted that the appellant had left the country without seeking permission from anyone to leave therefore he had contravened the law under which it was granted. Therefore he had no right to reside living Iraq as a refugee. Furthermore the refugee identity card was not a document which permitted him to enter the country as distinct from reside in the country even if it remained valid. It was therefore asserted that he was only returnable to Iran but in the light of his political activities in the UK, the appellant was at risk of return and would be entitled to refugee status in the UK on that basis.

12.          In a decision letter dated 6 March 2020 the respondent refused his claim. The respondent set out the earlier decision of the FtT and the decision made that he could not return to Iran due to his father's role and the fact that he never lived there and had no family there. In addition, the respondent accepted that all the evidence taken in the round indicated that he did have a political profile, that his views were pro-Kurdish and opposed the Iranian regime and whilst he provided no evidence the authorities would be aware of any of the activities in the UK, in the light of the guidance outlined in the decision of HB (Kurds) Iran CG [2018] UKUT 430, it was concluded that he would face a real risk of persecution in Iran given the fact that the authorities would be likely to find out about his activities on return.

13.          However, the respondent relied upon the previous decision of the FtTJ by reference to the refugee card that the appellant was in possession of, and that the appellant would be able to obtain the documents necessary to return to Iraq where he had lived previously. The respondent took into account the report titled "the Political Refugee Act number 51 issued in 1971 and the claim that the report show that he no longer had the right to reside in Iraq as a refugee. However the respondent considered that the appellant had not attempted to go to the Iraqi embassy to redocument himself and evidence that this had occurred. Taking into account the previous finding that once he was in the IKR there was no evidence to substantiate that he would be removed once there.

14.          Whilst the appellant relied upon evidence from 1971, the respondent gave consideration to the most up-to-date information available. In this context the respondent accepted that the appellant was born in Rumadi Iraq and that he spoke Kurdish Sorani. The respondent gave consideration to SMO and others (Article 15 (c) identity documents) Iraq CG [2019] UKUT 400 (hereinafter referred to as " SMO").Based on the CG decision the respondent considered that the objective material demonstrated there had been improvements in humanitarian and security situation and that nowhere in Iraq reach the threshold to breach Article 15 (c ) of the Qualification Directive and therefore he could return to his home area of Rumadi where he had lived for most of his life where he was familiar with the traditions, culture and social norms of the area. When applying the decision to his personal circumstances, the respondent considered that there was no evidence that he fell into any of the categories likely to place him at an individualised risk of harm. Thus it was concluded that he would have family support on return to in Iraq and would be able to utilise his resourcefulness and support himself sufficiently upon return. In addition he would be up to benefit from the assisted voluntary return program.

15.          As to documentation this was considered at paragraphs 28 - 33 of the decision letter. The respondent set out that in view of the current case law it demonstrated that there were viable options available to the appellant to obtain the relevant documentation to enable his return to Iraq. He had not provided any evidence to suggest that he had been in contact with the Iraqi embassy in an attempt to redocument himself and thus he had not made any genuine attempt to obtain documentation. It was considered reasonable that he would be able to obtain documents of his family and that they would be supportive of an attempt to redocument him and help in any way that they could.

16.          The respondents view was that he could seek assistance from the Iraq embassy in London to obtain a Laissez Passer which would enable him to travel to Iraq. The embassy could also assist in securing a replacement CSID card. Once he returned to Iraq he could present himself in person at the relevant CSA office to enrol his biometrics in order to gain the new INID card. The appellant had failed to demonstrate that he had tried to obtain this documentation through the embassy in the UK and was unsuccessful. Upon obtaining a replacement CSID from the Iraqi embassy in United Kingdom he would then be able to obtain a laissez passer which would enable him to travel to Baghdad and then continue his onward journey. Thus there are several viable methods to obtain the required documentation.

17.          As to internal relocation this was considered at paragraphs 34 - 41 and that the appellant would be able to obtain a replacement CSI the and a laissez passé enabling him to return to Iraq. It was considered he could voluntarily relocate to the IKR via Erbil also Sulamaniyah as he is of Kurdish ethnicity and there would be no barriers to his return.

18.          The remainder of the decision letter considered Article 8 of the ECHR. His claim was therefore refused.

Decision of the FtTJ:

19.          The appeal came before the FtT on 11 February 2021 at a hearing conducted by CVP.

20.          As to the basis of the appellant's claim, the FtTJ set out at [6] that it was common ground that the appellant could not be returned to Iran because of his association with pro-Kurdish political activities and because he is recognised in Iraq as a refugee from Iran. The FtTJ set out that the main argument raised by the respondent was that the appellant could be returned to Iraq, and that there had been a finding by another judge in 2018 that he could gain a laissez passer to return to Iraq, that he could enlist family support to travel within Iraq and to what is now the family home area in the IKR and thereby gain the necessary documentation such as a CSID (at [7]).

21.          When considering the appellant's claim the FtTJ recorded that it was common ground that the appellant was born of an Iranian Kurdish family in the refugee camp at Rumadi in the Al Anbar province of Iraq and had a card identifying him as a refugee issued when he was 2 years old. The card has not been since that time amended or renewed but gave him the right to reside in Iraq. The appellant states that he does not have a CSID, or the new form of biometric-based identification known as INID. The appellant claimed that he and his family moved from the refugee camp in 2003 to where the family lived in the Sulaymaniyah governorate in the IKR where his family reside (his parents).

22.          At [17] the FtTJ recorded the appellant's claim as follows; that despite the past decision, he cannot return to Iraq as he is not an Iraqi citizen and cannot get documentation to enable him to enter or travel within Iraq and that because of his sur place activity since the last hearing, he is at risk of serious harm or persecution if returned to Iran where he is deemed to be a citizen, and this was already acknowledged by the 1 ^st judge. He cannot return to Iraq so he cannot stay in the UK he would be returned to Iran where he has never lived and would be persecuted or face personal violence there as already determined.

23.          The FtTJ summarised the respondent's case at paragraphs [21] - [23] as set out in the decision letter as set out above and also summarised the relevant CG case law alongside the latest CPIN dated June 2020.

24.          The factual findings made by the FtTJ are set out at paragraphs [24-27]. The relevant passages of the FtTJ's decision are reproduced below:

"25. The only issue then is relocation to and/or return to a home location in Iraq. I make the following further findings accordingly: -

(i)             The only places which could be said to be home areas to which he could return are

25.1 1 Altash Camp in Rumadi which is in Anbar Province - or

25.1.2 The family home now at Darbandikhan which is in the Sulaymaniyah Governorate;

(ii)           SMO makes it clear that the security situation in Anbar is still precarious and the Appellant being a Kurd is a member of a minority in that area and falls within the second bullet point in the headnote para (5) in SMO as described above;

(iii)         Return to Darbandikhan is more complex; he does not have a passport or CSID and only has a refugee identity card which is long out of date and cannot be readily relied upon at present as evidence of his identity since it was issued within only months of his birth; I accept his evidence that he has attempted to use his refugee card to verify his identity on many occasions and been told in no uncertain terms that it is not acceptable as it is not possible to identify him from the photograph of him in his early infancy; I have noted his testimony that since the First Adjudication he has attended the Iraqi Embassy and Consulates in the UK and heard his evidence that he has attempted to obtain (as opposed to replace) a CSID, but I accept his testimony that he has been refused because so far as the Iraqi authorities are concerned, he is an Iranian refugee and does not qualify for a passport, laisser-passer, or any other identity documentation as he is not an Iraqi citizen - these are credible points;

(iv)         I accept the Appellant ' s testimony, as is borne out by the Respondent ' s own June 2020 Guidance, that he cannot obtain identity documentation by proxy; this is further borne out by the fact that the only way in which an INID can be obtained is by personally presenting oneself to a CSA at his birthplace or family home office, and providing his own biometric data, which by definition cannot be provided by proxy;

(v)           I accept the Appellant ' s testimony that neither he nor his family have ever had had CSIDs and therefore the question of replacing them is completely redundant; if they never had a CSID, they could never get one without being able to prove their identity, and they would need to prove Iraqi citizenship which for them as refugees is impossible;

(vi)         The Appellant prays in aid certain provisions of the domestic Political Refugee Act No 51 of 1971 which prohibits refugees leaving Iraq without prior agreement of the authorities. The Respondent argues that reliance on such domestic legislation, enacted before the downfall of the Saddam regime, is misplaced. Nonetheless I find that it is reasonably likely the Appellant would be regarded as a refugee who had illegally left Iraq and would be treated as such upon return. If, as I find, he has been unable to obtain the assistance of the Iraqi authorities here in the UK, it is reasonably likely that he will face the same practical difficulties on arrival in and transit through Iraq to his home area. Without CSID or passport, he is unable to return direct to the IKR and therefore return would be to via Baghdad. Transit from Baghdad to the IKR would also be impossible without a CSID. He can only get a CSID (or its replacement/equivalent INID) by going personally to his local CSA, but he cannot travel there without identity evidence documentation, which makes this analysis a " chicken and egg " situation.

(vii)       Taking the 2020 Guidance into account as described above, obtaining documentation by proxy is not possible; the risk which the Appellant therefore faces if returned to Baghdad is that he would not be able to travel to the IKR from there, and would probably not be accepted in Iraq, but would risk then being sent to Iran which has already concluded would breach his right to protection and his Human Rights generally; being unable to obtain identity documentation means that inevitably he would risk being returned to Iran as an Iranian citizen even though he has never been there or lived there, and he would thus be exposed to the risk already identified and recognised by the Respondent and the First Adjudication;

(viii)     The situation now presented to me in this appeal differs markedly from that which was before this Tribunal in January 2018 at the time of the First Adjudication in that SMO has since been decided by the Upper Tribunal, and the Respondent has issued her June 2020 guidance to meet changed circumstances in Iraq; though I accept that my starting point of analysis is the First Adjudication, I find that I can reach a different decision because of these changes in circumstances described above .

26. I am persuaded to accept the Submissions of Mr Schwenk despite the very well explained arguments in Mr Tuff's Submissions. I therefore conclude that the Appellant has discharged the required albeit modest burden of proof of the need for Convention protection, as on the subject of internal relocation in Iraq (to which the bulk of th e Respondent's arguments in the current appeal is addressed) because relocation is impossible in my finding for the " chicken and egg " argument reasoning set out above.

27. I find that the Appellant has established that if, as suggested by the Respondent he could seek return to alternative locations of either Rumadi or Darbandikhan, or another area in the IKR, such return would be at worst impossible and at best unreasonable. This is because it would be, and I find, unduly harsh for him to do so. He would be returned first to Baghdad, but without a CSID and unable (in what I describe as the a " chicken and egg " situation) to get one or an INID without returning to his home area, he would not be able to return to his home area to do so."

25.          The FtTJ therefore allowed the appeal.

26.          The Secretary of State sought permission to appeal that decision and permission was granted by FtTJ Andrew on 4 May 2021 for the following reasons:

"Having carefully considered both the ground and the decision I am satisfied that there is an arguable error of law in respect of both grounds that have been raised. It is apparent from the decision of the judges made no sustainable findings as to why the appellant's claims that he has never been documented in Iraq are credible given the evidence that the appellant has been educated in Iraq and has worked there, set against the background evidence. It follows from this that the judge may well have made an error as to his findings whether the appellant could be re-documented."

The Hearing before the Upper Tribunal:

27.          In the light of the COVID-19 pandemic the Upper Tribunal issued directions that the error of law issue could be determined without a face-to-face hearing and the hearing was to be listed as a remote hearing.

28.          Both parties indicated that they were content for the hearing to proceed by this method. Therefore, the Tribunal listed the hearing to enable oral submissions to be given by each of the parties.

29.          Ms Aboni relied upon the written grounds. They can be summarised as follows. Ground 1 asserts that the FtTJ failed to give adequate reasons for his decision. In her oral submissions Ms Aboni submitted that whilst the appellant was from Iran that have been granted refugee status he would have had documents, but the judge failed to give adequate reasons for accepting the appellant's claim that he did not have any documents and in the light of the evidence that the appellant's family had been able to obtain employment and relocate to different areas in the IKR.

30.          At paragraph 25.6 the judge found that the appellant would be regarded as a refugee on return and had left Iraq illegally. Ms Aboni submitted that this went behind the previous judge's decision where it was found that he had not been in an illicit relationship with the girl and had not fled Iraq for that reason and therefore he had no need to leave Iraq illegally.

31.          Ms Aboni submitted that ground 2 related to the issue of redocumentation necessary to return to Iraq. She submitted that the judge appeared to accept that the appellant had tried to redocument himself in the UK and accepted that as an Iranian refugee, the embassy in the UK would not document him. However there was no documentary evidence before the judge to support this finding. She submitted that previously he indicated he was able to travel and therefore failed to establish that he did not have any adequate documents to return to Iraq.

32.          The written grounds challenge paragraph 25.7 where the judge found that obtaining a proxy in Iraq is impossible and that the appellant could not be documented and stated that he is in a "chicken and egg situation". It was argued that the finding does not align with the appellant's evidence that he was in regular contact with his family in Iraq and if not already in possession of identification he could utilise family to assist in gaining citizenship documents. The 1957 document referred to in the June 2020 CPIN states that that is sufficient for the embassy to issue a laissez passé. Ms Aboni submitted that as the appellant was still in contact with his family the judge failed to consider if he had documents in Iraq which could be provided to him by his family.

33.          It is further argued that the judge found the transit between Baghdad and the IKR impossible for the appellant but made no comment on the submission that a laissez passer can be used for internal travel which the UK can apply for on behalf of the appellant or could be applied for at the Iraq embassy. The judge simply accepted the oral evidence that the embassy refused to assist him.

34.          Finally, Ms Aboni relied upon the grounds and submitted that the finding that it would be unduly harsh for him to return to the IKR was contrary to the earlier finding and the appellant's own evidence that he was employed in the IKR, had family there was a house and he was in regular contact with them.

35.          Ms Aboni therefore submitted that the appellant would be able to obtain relevant documents and return to his family in the UK, although she accepted that an INID could not be obtained by proxy, nor could he be re- documented in the UK.

36.          Mr Schwenk on behalf of the appellant had not filed a Rule 24 response but made oral submissions. They can be summarised as follows.

37.          He submitted the grounds were a disagreement with the FtTJ's findings and did not demonstrate any error of law. The findings took account of the previous assessment made by Judge Spencer who found that the appellant had been issued with a card as a child which had identified him as a refugee (see paragraph 36). Judge Spencer had found that he had a refugee card but had no CSID. Although he found that the appellant could go to Baghdad and use his refugee card to travel onwards throughout Iraq, even if that had been correct at the time in 2018 that was not the position on the evidence available now and it was open to Judge Drake on the facts as he found them to be and in the light of the current CG decision to reach the only reasonable conclusion that he would be returned to Baghdad that would be unable to travel outside of that area without a CSID.

38.          As to the finding that the appellant had left illegally, that did not go behind the early decision of Judge Spencer but relied upon the more recent evidence that he had no authorisation to leave Iraq as a refugee.

39.          As to paragraph 5 of the grounds he submitted that the appellant provided documentary evidence in the form of photographs to demonstrate that he had attended at the Consulates and in any event the respondent's own guidance demonstrated that it is not possible to document in the UK. Similarly by reference to paragraph 6 it was wrong to assert that he would be able to redocument by way of a proxy. Furthermore the reference to a Laissez Passer as used as an internal travel document was not supported by the country guidance decision in SMO.

40.          Whilst the grounds made reference to Annex I, the appellant had none of the document set out in that annex and a Laissez Passer would be confiscated on arrival.

41.          Mr Schwenk submitted that Judge Spencer and the present judge both found that the appellant was someone who did not have a CSID and that the factual assessment of being unable to redocument was one that was open to him and thus will be at risk of Article 3 ill-treatment.

42.          Ms Aboni by way of reply submitted that the judge failed to assess adequately whether the family had any relevant documents and thus the overall assessment was flawed.

43.          At the conclusion of the hearing I reserved my decision which I now give.

Decision on error of law:

44.          Ms Aboni in her submissions made it clear that the grounds advanced on behalf the respondents were a "reasons challenge" and that the judge erred in law by failing to give adequate reasons for the findings that he had made.

45.          The obligation on a tribunal judge is to give reasons in sufficient detail to show the principles upon which the tribunal has acted and the reasons that have led to the decision. Appellate courts should not rush to find a misdirection simply because they might have reached a different conclusion on the facts or express themselves differently, and in my judgement and on a careful reading, the FtTJ did give adequate reasons for his decision. I shall set out my reasons for reaching that conclusion.

46.          Ms Aboni concentrated her submissions on ground 2 and the issue of redocumentation. It was argued that the FtTJ appeared to accept that the appellant had attempted to redocument himself in the UK but was not able to. The grounds argue that there was no documentary evidence to support the FtTJ's finding in this regard (see paragraph 5 of the grounds). In my view that submission is plainly wrong. At paragraph 25.3 the judge set out his assessment of the evidence concerning the appellant's identity. As the previous judge had found, the present judge also found that the appellant did not have a passport or a CSID and only had a refugee card which the judge described as "long out of date" and "cannot be readily relied upon or presented as evidence of his identity since it was issued within only months of his birth". It was open to the judge against that background evidence to accept the appellant's testimony that he had attempted to use the refugee card to verify his identity but told that it was not acceptable as it was not possible to identify him from the photograph as an infant. As the refugee card was consistent with such that description, the judge's assessment that the appellant's evidence was credible was one that was open to him.

47.          The judge also assessed the appellant's account of his recent attempts to redocument himself at the Iraqi Consulate. Whilst the respondent asserts that there was no documentary evidence in support, the appellant's bundle included evidence in the form of photographs of the appellant at each of the consulates in 2 locations alongside the stamp of one Consulate (page 8) and see exhibits MFA2 and MFA 3). The judge was entitled to take into account that evidence alongside the appellant's oral testimony that he had attended the Consulate but as far as they were concerned he was an Iranian refugee and did not qualify for any identity documentation. At paragraph 25.4 the judge found that the appellant's evidence was consistent with the respondent's own guidance that he could not obtain identity documentation by proxy and that it is not possible to redocument in the UK (see para 2.16). In my judgement the FtTJ gave adequate and sustainable reasons for accepting the appellant's account as to his attempts to redocument himself in the UK.

48.          Similarly paragraph 6 of the grounds does not demonstrate any error in the FtTJ's reasoning. The factual finding made by the judge is that not only did the appellant not have a passport or a CSID but that neither he nor his family had ever had a CSID card and therefore it was not a question of replacing them and as they had never had CSID's. The appellant could not get one without being able to prove his identity and would need to prove Iraqi citizenship and as they were refugees this was not possible (at paragraph 25.5). That was a finding open to the FtTJ to make on the evidence and was the earlier finding made by Judge Spencer that the appellant had no CSID. The judge had earlier found that the refugee card and its contents was not likely to be sufficient evidence of his identity for present purposes given its age and that the photo on the card was of the appellant as an infant (at paragraph 25.3). Therefore it was open to the judge to find that the appellant did not have evidence of any Iraqi citizenship or an ability to prove his current identity. That being the case it was open to the judge reached the conclusion that it was not a case of the appellant being able to redocument but to "document" and against this background the family members were not likely to have documents relevant to the appellant which could be provided to him.

49.          Ms Aboni did not seek to explain ground one any further than what was written and did not point the tribunal to any evidence in support of paragraphs 1 and 2. Whilst the importance of a CSID is set out in the CG decisions and at paragraph 336 of SMO, the Upper Tribunal also accepted that there were a significant number of people in Iraq who were undocumented ( see paragraph 391). Consequently it was open to the FtTJ to accept the appellant's evidence that the appellant had been born in a refugee camp and had been given a card in respect of his status which was not sufficient identification given its age and its photograph of the appellant as an infant and that he had no other documentation available to him by his family or otherwise.

50.          Whilst the grounds refer to obtaining documents by proxy (paragraph 6) the judge identified at paragraph 25.7 that the respondent's own guidance precluded such a course and that obtaining documents by proxy was now not possible.

51.          Furthermore paragraph 7 of the grounds does not demonstrate any error of law. The Upper Tribunal in SMO expressly considered the issue of the use of Laissez Passer at paragraph 376 - 379 setting out the evidence of Dr Fatah who had not heard of any person being able to use a document for onward travel. The Upper Tribunal found the reason for this was that such a document was confiscated on arrival and therefore could not be used for internal travel. Therefore the decision of the judge that travel between Baghdad and the IKR would not be possible by using a Laissez Passer was consistent with the decision in SMO.

52.          Ms Aboni also sought to challenge the finding at paragraph 25.6 and the judge's assessment that the appellant will be regarded as a refugee who had left Iraq illegally. She submitted that this went behind the earlier finding of Judge Spencer who found that he had not established had been an illicit relationship with the girl and therefore had no need to flee Iraq. As Mr Schwenk submitted that failed to take into account the FtTJ's reasoning which plainly proceeded on the basis of that earlier finding but that in light of the evidence of the domestic provisions that prohibited refugees from leaving Iraq without prior agreement of the authorities, it was this which had led the judge to find that there was a reasonable likelihood that he had left Iraq illegally. In any event, there was no dispute that the appellant had left Iraq overland without a passport or any visas or paperwork from the Iraqi authorities.

53.          The last point raised in the grounds is that the FtTJ made a finding that it would be unduly harsh for the appellant to return to the IKR and that this is inconsistent with the evidence of family being resident there and having previously resided there. Again the submissions failed to engage with the FtTJ's reasoning as a whole. The judge had reached the conclusion from the evidence taking into account both the CPIN and the decision in SMO that without a CSID he could not travel beyond Baghdad and therefore could not travel to either his home area (in a former contested area) or where his family lived and that as summarised at paragraph [27] he would be returned to Baghdad as the place of removal without a CSID and unable to obtain one in Baghdad (consistent with SMO at paragraph 386, 388 and 393 ) and not being able to obtain an INID without returning to his home area. It was against this background that the FtTJ found that it would be unduly harsh. I consider that the judge was not using the term "unduly harsh" in the sense of considering the personal circumstances of the appellant and the circumstances of the place of location, as consistent with the authorities such as Januzi but on the basis that it would not be reasonable for the appellant to return to either location given the lack of his CSID /INID and the ability to be re-documented.

54.          Consequently it has not been demonstrated that the decision involved the making of an error on a point of law and the appeal of the Secretary of State is dismissed. The decision of the FtTJ shall stand.

 

Decision:

The decision of the First-tier Tribunal did not involve the making of an error on a point of law and the decision of the FtT shall stand.

 

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

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

Signed

Date: 19/ 8/ 2021

Upper Tribunal Judge Reeds

 

 

 

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal's decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days if the notice of decision is sent electronically).

5. A "working day" means any day except a Saturday or a Sunday, Christmas Day, Good Friday, or a bank holiday.

6. The date when the decision is "sent' is that appearing on the covering letter or covering email.