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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005310
	First-tier Tribunal Nos: PA/51497/2023 LP/07304/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 27 ^th of February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON

 

Between

 

The Secretary of State for the Home Department

Appellant

and

 

Mr N H

(ANONYMITY ORDER continued)

Respondent

Representation :

For the Appellant: Dr S Ibisi, Senior Home Office Presenting Officer (remotely)

For the Respondent: Mr T Hussain, of Counsel, instructed by Optimus Law (remotely)

 

Heard at Field House on 5 February 2025

The parties appearing remotely by videolink from Birmingham

 

 

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

Introduction

1.               The appellant in this case is the Secretary of State, the respondent is NH However, I refer to the parties as they were referred to before the First-tier Tribunal where NH was the appellant.

2.               The appellant is a citizen of Iraq, born on 5 April 1994. The appellant's protection claim, made on 28 March 2019, was initially refused by the respondent and on appeal was dismissed by the First-tier Tribunal. The appellant lodged further submissions on 4 March 2022, refused by the respondent on 22 November 2023. His appeal against that decision was allowed by First-tier Tribunal Judge Suffield-Thompson "the judge", on humanitarian protection grounds only, on 3 October 2024, after a hearing on 2 October 2024.

3.               Permission to appeal was granted by the First-tier Tribunal, on 19 November 2024 on the basis that it was arguable that the judge had erred in law by failing to apply the correct country guidance case of: SMO & KSP (Civil status documentation: article 15) Iraq CG [2022] UKUT 110 (IAC) (" SMO2").

4.               The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so whether any such error was material and thus whether the decision should be set aside.

Submissions

5.               In the grounds of appeal and oral submissions by Dr Ibisi, it was argued for the Secretary of State that the judge erred in failing to correctly apply the extant country guidance case of SMO2 when allowing the appeal under humanitarian protection grounds. At [34] of the decision, the judge states:

"The Respondent submits that this means that he can seek his family's help with his documents as his father can meet him at the airport and then he can travel with his old CSID card to obtain a new INID card. I do not agree."

6.               The judge then made findings at [35] to [40] of the decision, that the appellant would be at risk as, although the judge found he had access to his CSID via his family, as found by the previous Tribunal and acknowledged by the judge at paragraph [19] of the decision, he would not have an INID. It is submitted that this is an incorrect interpretation of SMO2.

7.               Headnote 11 of SMO2 provides as follows:

"The CSID is being replaced with a new biometric Iraqi National Identity Card - the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass."

8.               It was submitted that the Upper Tribunal did not find that those who hold a CSID, but not an INID card, would be at risk of treatment contrary to Article 3. The Upper Tribunal found in SMO2 that either document is sufficient to avoid any risk of ill-treatment. As a result, it was submitted that the judgment materially erred in-law, by departing from the country guidance case law, without any strong evidential basis for doing so.

9.               Dr Ibisi submitted that the judge at [37] was incorrect in her quotation from Dr Fatah that a CSID was only valid until the end of 2019, with Dr Ibisi referencing the October 2023 CPIN ('2023 CPIN) at paragraph 6.8.5. This provided that although the issuing of CSID cards had stopped, the document continues to remain valid whilst waiting to receive an INID. In addition, due to the long waiting time for INIDs, due to the shortage of cards CSID cards remain valid. Dr Ibisi submitted that the judge was therefore incorrect in stating that CSID cards were not valid post 2019.

10.           Dr Ibisi further submitted that the 2023 CPIN confirms that the appellant could return to the IKR without risk and could be documented within a reasonable timeframe. In addition, the 2023 CPIN at paragraph 5.1.3 sets out alternatives for an appellant without an ID document.

11.           The parties before me agreed that it was judge's finding, at paragraph [19] of Judge Suffield-Thompson's findings that following Devaseelan [2002] UKIAT 000702 the findings of the previous Tribunal were that the appellant had left his CSID card with his family and could obtain it but had made no effort to do so. This finding was not challenged before me.

12.           Dr Ibisi had not received the appellant's Rule 24 response. In any event, Mr Hussain agreed that the response in the bundle was generic and he was not intending to rely on it.

13.           Mr Hussain submitted that although the judge had in fact cited the 2019 country guidance, nonetheless she had correctly applied the extant SMO2 guidance, which was clear if not in possession of a CSID an individual cannot be returned and that this would be an immediate breach of Article 3.

14.           It was the Secretary of State's case that the appellant has access to a CSID with Mr Hussain noting that the Upper Tribunal was correct to point out that this finding had not been challenged.

15.           Mr Hussain submitted that this did not address the obvious point of how the appellant would exit the airport. Mr Hussain said there was nothing pointed to in any of the country guidance that people who are returned are able to navigate the airport.. Mr Hussain submitted that the Tribunal was being asked to find that an undocumented returnee can be returned.

16.           Mr Hussain relied on paragraph 3.4.1 of the 2023 CPIN, noting this was a direct copy of the July 2022 CPIN . If a person has a valid passport, an expired passport or a laissez-passer, then return is feasible. If they do not or cannot obtain either of these, return is not feasible. He submitted that the feasibility of return only applies to the physical process and does not take into account circumstances after arrival.

17.           The Tribunal was asked to bear in mind SA (Iraq) [2022] UKUT 37 (IAC), at [34], [42] and [57] which he submitted addressed the issue of undertakings on return.

18.           Mr Hussain submitted that if the Upper Tribunal was not with him on the error of law in relation to the judge's findings, then the decision should be set aside and remitted to the First-or remade by the Upper Tribunal.

19.           Mr Hussain submitted that although the Presenting Officer relied on paragraph 5.1.3 of the 2023 CPIN, the footnote had a hyperlink to a completely different report. He submitted that any suggestion that country guidance be departed from was incorrect and that the Upper Tribunal should either set aside the judge's findings and dismiss the Home Office's appeal on the available evidence, on the basis that the evidence being relied on to depart from country guidance did not reach the high threshhold required. Alternatively, the Upper Tribunal could remake the appeal following further examination of the Secretary Of State's assertions in relation to return (and although Mr Hussain indicated that a further country guidance was listed to be heard in relation to return to Iraq he confirmed that he was not requesting that this case be stayed pending that decision).

Conclusions

Error of Law

20.           As I indicated at the hearing, I was satisfied that the judge erred in her approach to the appellant's return to Iraq and that such error was material.

21.           Having comprehensively rejected the appellant's credibility, and having dismissed his asylum appeal, in reasoned findings from paragraphs [1] to [29], such decision not being under challenge before me, the judge then went on to address from [30] onwards, the issue of "lack of documents".

22.           There was no challenge to the judge's findings at paragraph [19] following Devaseelan, preserving findings that had been made by the previous Tribunal in relation to the appellant's CSID, that the appellant "had left his card with his family and could obtain it but had made no effort to do so".

23.           The judge noted that the respondent Secretary of State had submitted that the appellant could seek his family's help with his documents as his father could meet him at the airport and then he could travel with his own CSID card to obtain a new INID card. However, the judge found at paragraph [34] that she did not agree and then went on to cite an earlier country guidance case from 2019. In addition, the judge, in her approach to CSID and INID cards, erroneously took the approach that the appellant could not travel within Iraq because he did not have an INID card.

24.           The judge fell into error at [37] in quoting Dr Fatah in stating that CSIDs were only valid until the end of 2019. It was not disputed before me that as set out in the 2023 CPIN, Dr Fatah confirmed that existing CSIDs continue to be valid.

25.           Paragraph 6.8.5 of the 2023 CPIN provides as follows:

"The ICIBI report June 2023, quoting Dr Rebwar Fateh, stated:

'In September 2022, the Director General of Citizenship in Erbil informed me that the issuing of CSIDs in the IKR has stopped. However, the document remains valid for all legal and administrative purposes while individuals are waiting to receive their INID. Moreover, an individual working for the Iraqi Independent Election Commission confirmed that no CSA office is [sic] Iraq is issuing the CSID or INC. They are all now issuing the INID. However, the long waiting time, due to the shortage of cards, means that the INC and CSID continue to be valid.'

26.           Paragraph 11 of the headnote of SMO2 also confirmed that either a CSID or an INID is required:

"The CSID is being replaced with a new biometric Iraqi National Identity Card - the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR.

..."

27.           There are a number of additional issues with the judge's findings on return to Iraq; it is concerning that the judge's findings from [36] to [40] are all in written in terms of "It is also submitted" which would appear to be a reference to submissions made by the appellant's representative. The judge did not reach any findings on humanitarian protection, other than finding that she did not agree that the appellant could use his old CSID card to obtain a new INID card and a concluding finding that the appellant was entitled to a grant of humanitarian protection.

28.           The judge failed to give reasons for those conclusions and as I indicated at the hearing the decision of the First-tier Tribunal in relation to humanitarian protection the decision is set aside. The judges findings in [1] to [29] are preserved and the dismissal of the protection appeal is preserved.

Remaking the Appeal

29.           The appeal falls to be remade on the narrow issue in relation to return to Iraq and whether the appellant is entitled to humanitarian protection. There was no dispute in relation to the findings of fact in relation to the appellant's circumstances.

30.           Although Mr Hussain made submissions in relation to the Secretary of State's alternative position in the 2023 CPIN in particular at paragraph 5.1.3 and that a further hearing was required to examine the Secretary of State's assertions in relation to return, and departure from SMO2, given the preserved findings including that the appellant has a CSID, this is a case where the Upper Tribunal is in a position to remake the decision on the available evidence and the extant country guidance case law.

31.           Although I have borne SA (Iraq) [2022] UKUT 37 (IAC) in mind, again this relates to the consideration of the issue of voluntary return to the IKR, whereas forced removal is only to Baghdad. The appellant's case can be distinguished as the appellant has a CSID and my findings are reached on the basis of return to Baghdad.

32.           It was accepted and not in dispute that the appellant is a national of Iraq of Kurdish ethnicity, from the Koya region in Erbil. It was the respondent's case in the Reasons for Refusal Letter dated 20 February 2023, that there were not very strong grounds supported by cogent evidence to depart from the findings of SMO2.

33.           The judge in the preserved findings rejected the appellant's claim in its entirety. The Secretary of State in the refusal letter had not accepted that the appellant was from a formerly contested area, nor was it accepted that he fell within any of the categories set out in SMO2.

34.           It was not specifically argued that this appellant's characteristics were cumulatively such that his return would give rise to a breach of Article 3 ECHR. I find that it would not. The appellant's argument in relation to Humanitarian Protection, set out in his appeal skeleton argument before the First-tier Tribunal, relating solely to the CSID and documentation issue (and as noted, the judge reproduced those submissions at paragraph [35] to [40] of her decision).

35.           The respondent considered the appellant's CSID and the feasibility of return at paragraph 26 onwards of the refusal letter. A civil identity document (CSID or INID) or an Iraqi national certificate (INC) is required to pass checkpoints and be admitted into the governates in south and central Iraq. Therefore only those who are documented or who could obtain either original or replacement documents (i.e. a CSID via a proxy) from a family member would be able to enter governates in south and central Iraq. The respondent noted that in SMO2 the Tribunal held that to enter and pass through security checkpoints a person will require a civil identity document (a CSID or INID) in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR.

36.           The respondent considered return documentation in the appellant's case, including that if a person has a passport, an expired passport or a laissez-passer, then return is feasible. If they do not have or cannot obtain either of these, then return is not feasible. The passport and laissez-passer, which is the term used by the Iraqis for an emergency travel document or travel documents and are not to be confused with civil documentation such as the CSID or INID cards. It was the respondent's case that the available evidence indicated that to obtain a passport a person who is 18 or over needs to go to an Iraqi Consulate and present a CSID document, an Iraqi national certificate, INC and a residency card.

37.           SMO2 held that there was no proper basis upon which to depart from the conclusions previously reached by the Upper Tribunal country guidance in respect of the laissez-passer.

38.           There was no specific dispute that an application for a laissez-passer is considered on a case by case basis by the Iraqi Embassy in London. For the forced return of a failed asylum seeker, there is no interview requirement providing they hold at least one of a specified number of documents, including the CSID. For those without supporting documents a mandatory embassy interview is required.

39.           It was the respondent's case that the 2023 CPIN and SMO2 confirmed that a person returning to Iraq requires a CSID (or INID) document and that having a CSID would be vital in the appellant obtaining a passport or laissez-passer from the Iraqi Embassy in London. Given that the previous First-tier Tribunal decision found that the appellant had a CSID at home and it was not accepted he was not in contact with his family, the appellant could be provided with a CSID card from his parents to enable him to be issued with a passport or a laissez-passer.

40.           I have considered the 2023 CPIN. Applying SMO2 and Judge Suffield-Thompson's preserved findings, I am satisfied that the appellant has access to his CSID card. I rely on the preserved findings that the appellant's CSID could be obtained by the appellant, despite the fact that at the date of the previous appeal he had not made any effort to do so.

41.           Once the CSID, or a copy, is sent to the appellant from his family in Iraq, the appellant can use this document to obtain a laissez-passer or a passport from the Iraqi Embassy in the UK. Alternatively, the appellant could obtain such documentation through an embassy interview if required.

42.           I find that the appellant can be returned, including to Baghdad, on a laissez-passer. Once returned, SMO2 establishes that the appellant will be in a position to use his existing CSID (with the document either having been sent to the UK), or being met at the airport by a family member (having entered the country with a laissez-passer) to safely return to his home area.

Notice of Decision

43.           The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.

44.           I set aside the decision and remake the decision in the appeal by dismissing it on all grounds.

 

 

M M Hutchinson

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

26 February 2025