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

IAC-AH- KRL-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/00027/2015

 

 

THE IMMIGRATION ACTS

Heard at Bradford	Decision & Reasons Promulgated
On 9 th March 2016	On 21 st April 2016

 

 

Before

 

UPPER TRIBUNAL JUDGE D E TAYLOR

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

 

Appellant

 

and

 

Naser Ismael

(ANONYMITY DIRECTION NOT MADE)

Respondent

 

 

Representation :

 

For the Appellant: Mr J Parkinson, HOPO

For the Respondent: Mr C Cole, solicitor, Parker Rhodes Hickmotts

 

 

DECISION AND REASONS

 

1.              This is the Secretary of State's appeal against the decision of Judge Robson made following a hearing at Bradford on 6 ^th November 2015.

Background

2.              The claimant is a citizen of Iraq, born on 16 ^th August 1976. He claimed asylum in September 2002 but was refused and granted exceptional leave to remain until 2006. During that time he was convicted of a number of offences for which he received short suspended sentences. He was granted indefinite leave to remain on 17 ^th April 2007.

3.              He then committed two more offences in 2008 and 2011 before, on 19 ^th November 2012 being sentenced to sixteen months' imprisonment as a consequence of a conviction of wounding.

4.              The Secretary of State made a deportation order on 2 ^nd August 2013 and his appeal against that decision was dismissed on 15 ^th November 2013.

5.              On 10 ^th November 2014, his representatives wrote to the Secretary of State stating that the claimant wished to make a fresh claim due to the current situation of violence in his home area Tuz Khormato and that a return to Iraq was not possible because of the indiscriminate violence there. She refused the fresh claim on 12 ^th March 2015, and it was this decision which was the subject of the appeal before the Immigration Judge.

6.              The judge considered the expert's report from Dr Rebwar Fatah and summarised his conclusions as follows.

(i)             The claimant had spent the majority of his adult life in the UK during which time Iraq had drastically changed.

(ii)          Whilst he may be relocated to Baghdad Airport with a laissez-passer he still needed to leave the airport to make his way to his final destination which was suggested to be the Iraqi Kurdistan Region. He could not move around Iraq without an Iraqi ID.

(iii)        An Iraqi ID could only be issued against information which was given in the civil register but sources agreed that there remained

"procedures to go through for IDs and people attempting to access replacement documents not least of which was the requirement to have at least some documents (original or copied) but a witness linking the appellant to their records."

7.              He relied on the previous determination in which the panel said

"Following appropriate cross-examination we can say that we found Mr Ismael to be a very honest and credible witness and based on his evidence we come to the findings of fact set out below."

8.              The judge noted that the claimant had no family in Baghdad and no ties to the city and even if he could obtain a laissez-passer to go there, there was no evidence that he could readily obtain an ID card within a realistic period of time.

9.              He cited the following passage from AA (Article 15(c)) [2015] UKUT 544

"A person returned to Iraq who was unable to replace their civil status ID card or nationality certificate would be likely to face significant difficulties in accessing services and a livelihood would face destitution which is likely to breach Article 3 threshold."

10.          The judge concluded that there was no real possibility of the claimant obtaining an ID card within a realistic period of time and relocation to a Kurdish area would not be practicable without one.

11.          On that basis he allowed the appeal.

The Grounds of Application

12.          The Secretary of State sought permission to appeal, four weeks out of time, on the following grounds.

13.          First, it was argued that the judge had failed to provide any reasons as to why the claimant's family could not assist him in obtaining the necessary identification document. He gave no reasons as to why he had not been in contact with his family in Iraq since September 2014 other than personal choice. He has failed to make an even cursory attempt to obtain the necessary documentation. Furthermore the judge had failed to provide reasons as to why the claimant's little Arabic would be insufficient to assist him in relocating to Baghdad.

14.          Second, the judge failed to make a finding on the claimant's credibility for himself which was material to the finding that he had no previous ties to Baghdad or access to a sponsor.

15.          Permission to appeal was granted by First-tier Judge Parkes on 28 ^th January 2016. Judge Parkes admitted the late application on the grounds that the Tribunal had been in error in sending it to the wrong location.

16.          The claimant served a reply on 3 ^rd February 2016 arguing that the application should not have been admitted. He relyied on the decision in RK (Allowed appeals service on respondent) Albania [2015] UKUT 331. RK held that service by the First-tier Tribunal of a determination allowing the appeal on the Presenting Officers' Unit in Cardiff, rather than on the Specialist Appeals Team in Angel Square was good service, despite what was said to be an agreement to serve all allowed appeals on the Angel Square team.

17.          Second, with respect to ground 1, in AA the Tribunal stated

"P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's governorate because it is 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. The evidence does not demonstrate that the central archive which exists in Baghdad is in practice able to provide CSIDs to those in need of them. There is however a National Status Court in Baghdad to which P could apply for formal recognition of identity. The precise operation of this court is however unclear."

18.          Therefore even if the claimant's family were willing to assist him he would not be able to go to the Civil Status Affairs Office in his governorate to try to obtain a CSID because it is in an area where Article 15(c) serious harm is occurring. The family and their assistance was irrelevant because his home was in a contested area; it was accepted that anyone in such an area would be at real risk of serious harm. The claimant's home town had been rendered uninhabitable, and if that was the case it would explain why his family had stopped being in contact with him since September 2014.

19.          Finally, the judge was entitled to rely on the previous credibility findings of the first Tribunal. In any event his credibility was not questioned in the reasons for refusal letter and not challenged at the hearing. No submissions were made regarding his credibility by the Home Office Presenting Officer.

Preliminary Issue

20.          Whilst it may have been difficult for Mr Parkinson to have resisted the argument that the First-tier Judge should not have admitted the permission application which, in reliance on RK, was properly served upon her, both parties agreed that the grant of permission was not an appealable decision and only challengeable by means of judicial review.

Submissions

21.          Mr Parkinson relied on his grounds and submitted that the judge had not adequately reasoned why his family could not vouch for him. The fact that the claimant's home town was uninhabitable was immaterial because there had been no attempt to obtain the documents and it was clear in any event that the claimant was in touch with his youngest brother who could have assisted him. It had not been established that the governorate's records were in his home town and nothing to indicate that it was not feasible to obtain the necessary documentation.

22.          He also submitted that the claimant had misled the Tribunal in the past with respect to his previous convictions and that the judge had erred in merely relying upon the comment that he was an honest and credible witness in the first determination. Otherwise he relied on his grounds.

23.          Mr Cole submitted that the grounds had no merit. It was simply impossible for the judge to return to get the ID document because his home town was in an area where an Article 15(c) risk was established. To suggest that he could do so was contrary to the country guidance. Moreover the judge was entitled to rely on the first determination credibility findings and indeed there was no basis for the judge to go behind it.

Findings and Conclusions

24.          There is no material error in this determination.

25.          The Secretary of State relies on the following passage from AA

"Where return is feasible but P does not have a CSID P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home governorate using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P."

26.          Mr Parkinson's arguments today amounted to a disagreement with the decision and an attempt to reargue the Secretary of State's case which is that the relevant documentation could be obtained with the help of a family member. The judge was entitled to conclude that such help could not be forthcoming if the town had become uninhabitable as reported by Al Jazeera on 8 ^th October 2014, which would be consistent with his evidence that he had not communicated with his family since September 2014. It is therefore not true to say that no reasons were given for the lack of contact other than personal choice. The judge could have found that the youngest brother was able to assist but it was not an error of law for him to conclude otherwise.

27.          The Tribunal in AA accepted that for a person who has no family or other support in Baghdad, such as this claimant and who also does not have a CSID and cannot obtain one reasonably soon after arrival would be at risk of Article 3 ill-treatment. There is no error in the judge relying on that decision and concluding that it would be a breach of the claimant's Article 3 rights to return him to Iraq in circumstances where he could not replace his ID card. There was sufficient evidence to support his conclusion that he would not be able to do so.

28.          Finally, the submission in relation to the credibility findings is misplaced. Plainly the judge was obliged to take as his starting point the positive credibility findings of the First-tier Tribunal. Furthermore, according to the Rule 24 Reply, no submissions were made to him challenging the claimant's credibility at the hearing. In these circumstances there is no error in him following the conclusions of the original Tribunal.

29.          The grounds do not establish an error in the decision which shall stand.

 

No anonymity direction is made.

 

 

 

 

Signed Date

 

 

Upper Tribunal Judge Taylor