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

 

 

 

 

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/10173/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Determination & Reasons Promulgated
On 21 st March 2019	On 9 th April 2019

 

Before

 

UPPER TRIBUNAL JUDGE COKER

 

 

Between

 

AA

(anonymity order made)

Appellant

And

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr M Allison, instructed by Turpin and Miller LLP (Oxford)

For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

 

 

DETERMINATION AND REASONS

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the appellant in this determination identified as AA. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings

1.          By a decision promulgated on 12 September 2018, Upper Tribunal judge Perkins found an error of law in the decision of First-tier Tribunal Judge Boylan-Kemp MBE who dismissed the appellant's appeal, by a decision promulgated on 8 ^th March 2018, against a decision by the respondent refusing his international protection and human rights claim on 11 August 2017.

The appellant's immigration history

2.          The appellant is an Iraqi National from Kirkuk. He is a Sunni Kurd. He entered the UK in December 2002 and was granted leave to remain until 2006 following the closure of Sangatte. He was granted indefinite leave to remain on 14 April 2009. On 27 October 2016 he was convicted of possession of controlled drugs Class A, and possession with intent to supply and possession of controlled drugs Class B. This conviction put him in breach of an earlier suspended sentence also for drug related matters. This led to him being sentenced to serve consecutive terms of imprisonment amounting to 24 months imprisonment in total. The appellant was subject to the deportation order as a consequence of his conviction and sentence. S72 of the Nationality Immigration and Asylum Act 2002 was considered which, as noted, below was incorrect.

3.          The appellant does not seek to argue that he is a refugee; he cannot show that he faces persecution for a Convention reason, rather than claiming ill-treatment from some other cause.

4.          The resumed hearing was listed before me on 7 ^th November 2018. Given the additional evidence that the respondent wished to rely on in connection with the ability of an individual to obtain a CSID and the potential relevance of the Court of Appeal judgement in Said [2016] EWCA Civ 442, I adjourned that hearing with directions. It was also agreed that the grounds of appeal could be extended to include a claim under Article 8 based on the appellant's private life established in the UK.

5.          Hence the appeal came before me on 21 March 2019. I had the following relevant documents before me:

•                 Original Home Office bundle

•                 Appellant's bundle before the First-tier Tribunal hearing on 30 ^th of January 2018

•                 letter from the British Red Cross dated 8 ^th March 2019

•                 OASys report following a completed assessment on 29 ^th of October 2018

•                 An undated and unsigned witness statement the appellant sent under cover of a letter dated 5 December 2018 (December witness statement)

•                 CPIN Iraq: security and humanitarian situation, Version 5.0, November 2018

•                 Skeleton arguments prepared by Mr Allison dated 3 August 2018, 7 November 2018, 4 February 2019 and 20 March 2019.

•                 Skeleton argument prepared by Mr Jarvis dated 12 March 2019

•                 Bundle of authorities to which I added MA(Somalia) [2018] EWCA Civ 994

•                 I was also referred to the CPIN Iraq: Internal relocation, civil documentation and returns (version 9, February 2019).

6.          I heard oral evidence from the appellant and submissions from both representatives. I am grateful to the representatives for the clear and coherent quality of both their written and their oral submissions.

Oral Evidence

7.          The appellant gave oral evidence in English. He confirmed that his witness statement that had been submitted to the First-tier Tribunal (dated 24 ^th January 2018) was true and correct and had been adopted by him at the First-tier Tribunal hearing. He confirmed the December witness statement was true and correct and he adopted this as his evidence. He could not recall when he had made that latter statement with his solicitors.

8.          In so far as the letter from the Red Cross was concerned, he confirmed he had contacted the Red Cross and they had said they would contact him in a couple of weeks; they did not. Eventually, he was able to make an appointment to see them which led to the Red Cross letter. That letter said that the Red Cross were unable to conduct any active tracing on his behalf but that he could use the 'Trace the Face' online service. He confirms he has done that but has had no contact with his family in Iraq.

9.          There is a conflict between the December witness statement and the OASys report in terms of the relationship he claims to have with a person resident in the UK called Amber. In the OASys report he says that relationship broke down in May 2018, whereas in his December witness statement he describes still being in a relationship with her. That relationship has broken down at the date of this hearing. He confirms that he sees her children, of whom he's not the biological father, every week; he does not see either of his own biological children; he gave no further significant or relevant detail of the relationship he has with the children. There was no witness statement or letter from Amber; the appellant said that she was prepared to write a letter or speak on the telephone but he had not asked her to come to court because he knew she would refuse; she had, he said, written to his solicitors but that letter was not before me.

10.       In the December witness statement (repeating the evidence set out in his witness statement to the First-tier Tribunal dated 24 ^th January 2018) the appellant refers to having made contact with his family through a friend in 2003. He says he spoke to his mother and his sister and during those conversations he learnt that his father, his uncles and one of his cousins had been killed, and that one brother had left Iraq. He says that in 2005 he telephoned the number and he was told that his mother had died and his sister had left Kirkuk after her marriage and it was not known where she had gone. He did not know the name of the family she had married into. He said that after that call, the phone number stopped working; he is no longer in contact with that friend.

11.       When asked if he ever met people from Kirkuk, he confirmed he did but they were more recent arrivals; although he asked if they knew his family, none did.

12.       The appellant said that he had had no further problems with the police and had not been arrested since his release from detention at the beginning of May 2017; he said he was drug-free.

Issues

13.       The issues before me, which overlap, are as follows:

(i)         The section 72 certificate

(ii)        Article 3 ECHR/Article 15(b) Qualification Directive (QD)

(iii)       Article 15(c) Qualification Directive (QD) [1]

(iv)       Exclusion from protection

(v)        Relocation

(vi)       S117C Nationality, Immigration and Asylum Act 2002 (NIAA)

(vii)     Article 8.

Discussion

Section 72 certificate

14.       Although the Secretary of State had certified that section 72 applied, Mr Jarvis readily accepted that this was incorrect and should not have been an issue before the First-tier Tribunal - the appellant had been sentenced to consecutive sentences and not one sentence amounting to two years or more.

Article 3/Article 15(b) QD

15.       Article 15(b) is in terms that are materially the same as Article 3 ECHR Convention. Mr Allisson submitted, from which Mr Jarvis did not dissent, that if excluded from protection, there would remain a separate Article 3 consideration to be carried out.

16.       The respondent took the view that this appeal was in reality an Article 15(b) appeal because Article 15(c) did not bite, as to which see below. It was common ground that if the appellant could obtain a CSID, he would not be destitute on return to Iraq. There would remain issues of return to Kirkuk and/or relocation to the IKR, but he would not be destitute; he would be able to access aid, accommodation and employment (albeit possibly with some difficulty) and he would be able to travel.

17.       The underlying factual issue to be determined therefore is whether the appellant will be able to obtain a CSID either whilst in the UK or, within a reasonable time frame, on his return to Iraq.

18.       The guidance in AAH on CSID, in so far as relevant to this appeal, is as follows:

"Section C of Country Guidance annexed to the Court of Appeal's decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is supplemented with the following guidance:

1.          Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:

i)           Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in 'tracing back' to the family record and are confiscated upon arrival at Baghdad;

ii)          The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?

iii)         Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father's side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual's mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all."

19.       Mr Jarvis acknowledged that the appellant's evidence had consistently been that he did not have a passport or CSID. He had entered the UK following the closure of Sangatte and his leave had been granted on Home Office documents not Iraqi documents. He submitted that it was possible to obtain a CSID in the UK through the assistance of relatives in Iraq but that the appellant's evidence in connection with contact with his family in Iraq, or rather lack of it, had also been consistent. He had some doubts about the tracing attempts made by the appellant through the Red Cross. Mr Allison reminded me that the appellant had left Iraq at a time of great upheaval, had travelled across Europe and had lived in the UK for a lengthy period; his account of having lost contact with his family was entirely credible. I am satisfied that the appellant's evidence of the lack of family contacts is credible and that he does not know the reference numbers required to enable his identity documents to be retrieved. I am satisfied that he would not, on the basis of the evidence before me and the lack of knowledge by the appellant of his required reference numbers, be able to obtain a CSID in the UK. He would therefore be travelling to Baghdad on a laissez passer; the UK does not, at present, return individuals to Erbil.

20.       The Country Policy and Information Note Iraq: Internal relocation, civil documentation and returns (Version 9.0 February 2019) attaches at Annex A [2] (5 September 2018) and B [3] (2 October 2018) copy letters from the Iraqi Ambassador to the UK. The respondent submits that these letters are official confirmation relating to airport procedures and amount to very strong grounds supported by cogent evidence to enable departure from AAH's conclusions. These letters appear to be in direct conflict with the evidence given by Dr Fatah to the Upper Tribunal in AAH - see in particular paragraphs 104 to 106 and the extract from AA quoted in the decision.

21.       AAH heard evidence over 2 days in February 2018. Dr Fatah is a highly respected, impartial and knowledgeable expert. His evidence was, and has been, carefully and thoroughly researched and includes personal visits. The letters from the Iraqi ambassador do not engage with the very serious issues of documentation that are recorded by the Upper Tribunal and accepted, only a few months earlier, as the position on the ground. In the absence of more direct evidence dealing specifically with the problems and difficulties identified by Dr Fatah, and taking full account of the need for such evidence to be cogent as referred to in SG [2012] EWCA Civ 940, I do not accept that the appellant will be able to access a CSID on his return to Baghdad or that he will be able to obtain a certificate enabling him to travel to Kirkuk to obtain his identity documents or to travel to the IKR without a CSID.

22.       I am satisfied on the evidence before me that this appellant will not be able to obtain a CSID either from here in the UK or on his return to Baghdad. It follows, given this finding of fact and it is common ground, that on return to Iraq, the appellant will be destitute.

23.       The SSHD submits that Said confirms that a claim for international protection based upon destitution and/or adverse humanitarian conditions is only sustainable, unless it attracts the very exceptional threshold test in N, in two scenarios:

•                 Impoverished conditions which are the direct and/or indirect result of violent activities of the parties to the relevant conflict; or

•                 There is a real risk of direct violence against the person in question in those conditions of destitution.

24.       He submits that the appellant's destitution in Iraq would not fall within either of these two categories and he does not meet the very high threshold test of N.

25.       Mr Allison submits that firstly, Said is not authority for the proposition that destitution has to meet the very high exceptional threshold test in N and, secondly that the impoverished conditions in which the appellant would find himself are the direct result of the violent activities of the parties to the conflict that has occurred in Iraq. He did not submit that there was a real risk of direct violence to the appellant.

26.       Mr Jarvis relied, in particular, upon paragraphs 15 to 18 of Said:

"15. The significance of point (iv) in the summary is that the paradigm case, as Laws LJ described it at para 39 of the  GS case, in which article 3 prevents removal involves the necessary risk of being subject to an intentional act which constitutes torture, or inhuman or degrading treatment. Medical cases, and I would add cases where the complaint is that someone returned would be destitute on arrival, do not fall within that paradigm. Laws LJ reviewed the decisions of the Strasbourg Court in the case of  MSS, Sufi and Elmi, SHH and Tarakhel which, in addition to the medical exception narrowly defined in the  D and N cases, illuminate the limited circumstances in which it is appropriate to depart from that paradigm in article 3 cases.

16. In the  MSS case the Strasbourg Court decided that Belgium would violate the article 3 rights of MSS, an Afghan asylum seeker, were he to be returned to Greece under the Dublin Convention. That was because of the dire conditions in which he would live in Greece whilst his claim was considered. Responsibility for those conditions rested with the Greek state. In  Sufi and Elmi the applicants were Somali nationals who had committed criminal offences in this country. The Secretary of State proposed to deport them. At para 282 of its judgment the court said:

"If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or the state's lack of resources to deal with a naturally occurring phenomenon, such as drought, the test in  N v United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct or indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by al-Shabaab's refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between one-third and one-half of all Somalis are living in a situation of serious deprivation."

Al-Shabaab is an Islamist terrorist organisation. The state of affairs described in this extract from the judgment is precisely what has since improved; and it is the improvements which are reflected in the Somalia CG. But on the basis of the evidence as to the conflict at the time of the  Sufi and Elmi the Strasbourg Court decided that the circumstances it had described meant that the approach in  MSS, rather than  N, should be followed.

17. In para 57 of the  GS case, Laws LJ described this as a "fork in the road, on the court's own approach" between the two different types of case. He then referred to  SHH v United Kingdom, concerning a severely disabled Afghan applicant, who sought to rely upon the MSS approach, but failed. His problems on return would result from inadequate social provision and want of resources. The approach in the  N case was the correct one. Finally, he considered  Tarakhel which was another case about returning asylum seekers under the Dublin Convention, this time to Italy, where there were said to be systemic deficiencies in reception conditions which were the responsibility of the Italian state. The  MSS approach was applied.

18. These cases demonstrate that to succeed in resisting removal on article 3 grounds on the basis of suggested poverty or deprivation on return which are not the responsibility of the receiving country or others in the sense described in para 282 of  Sufi and Elmi, whether or not the feared deprivation is contributed to by a medical condition, the person liable to deportation must show circumstances which bring him within the approach of the Strasbourg Court in the  D and  N cases.

27.       The CPIN Iraq: Internal relocation, civil documentation and returns (version 9, February 2019) states, where relevant in this appeal, as follows:

'2.6.20 A person who is unable to: a. replace their CSID; and b. obtain support from family members or others is likely to face significant difficulties in accessing services and humanitarian conditions which are likely to result in destitution sufficient to amount to a breach of Article 3 of the ECHR / Article 15(b) of the QD. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

2.6.21 In AA, the UT found that the assessment of whether a person would be at risk of destitution because of a lack of a CSID should only be made if return was feasible. However, this position was reversed by the Court of Appeal (CoA) in June 2017 (Annex: C 9). Decision makers must now assess the risk arising from a lack of a CSID regardless of 'feasibility of return' (whether a person can be returned or not).

2.6.22 If a person is

-¢ unable to obtain a passport or a laissez-passer (i.e. their return is not feasible)

-¢            unable to obtain documents, including a CSID, and

-¢            claiming they are at real risk of destitution based on their lack of documents

then a person has not established a need for protection and decision makers should consider the Discretionary Leave (DL) policy and, if appropriate, grant a person leave in accordance with this policy, pending future reviews of their ability to feasibly return to Iraq. These are very specific circumstances. Decision makers must explore whether a person can reasonably obtain a travel document before they find that a person's return is not feasible.

2.6.23 A person in the above circumstances has not established a need for protection because there is a relationship between feasibility of return and risk arising from a lack of documents: once a person obtains a passport then this will have a positive impact on their ability to obtain a CSID.

2.6.24 A person who can be feasibly returned, and is at real risk of destitution because of a lack of documents, should be granted HP. It should be noted that this is the case for whatever reason the person's return becomes feasible. However, it is likely that a person whose return is feasible will be able to obtain a CSID. This is because a passport is a route to an CSID. Alternatively, if a person is returned on a laissez passer (LP) they may already possess a CSID because the CSID is a route to an LP (see paragraph 2.7.11)'

28.       Mr Allison submitted that it does not follow from Said that medical and destitution cases have to reach the same threshold; Said was saying that destitution did not fall within the same paradigm as cases where removal involved the "necessary risk of being subject to an intentional act which constitutes torture or inhuman or degrading treatment". It did not, he submitted, provide an equivalence of test and that the threshold only referred to medical cases.

29.       I do not agree. The Court of Appeal in Said considered this submission and rejected it. [18] of Said makes clear that to avoid removal on Article 3 grounds, the destitution must be in the sense described in Sufi and Elmi; circumstances approaching D and N must be shown.

Are the impoverished conditions/destitution the appellant will find himself in the direct and/or indirect result of violent activities of the parties to the conflict.

30.       This breaks down into a number of issues to be resolved:

(a)        Whether the difficulties in processing IDPs and the issuing of CSIDs reveals a deliberate action on the part of the Iraq State: Mr Allisson submits that the question of 'intentionality" is not settled. Although accepting that in MSS v Belgium and Greece App no 30696/09, 21 January 2011, there was a breach of Article 3 based on the deliberate inaction of the Greek authorities, he submits that in cases involving the risk of suicide no intentional action is required on the part of the receiving State. Mr Jarvis submits that the issue of intentionality does not have to be resolved; it is a matter for determination whether the destitution the appellant will face can be located in the result not the intention behind the result. I agree with Mr Jarvis' formulation.

(b)        To what extent is the conflict the cause of the destitution: Mr Allison submits that it is the conflict itself which has led to the breakdown of the CSID system, which had previously been in operation - see AAH [30]. He submits that it is not long-standing socio-economic adverse conditions but the deliberate destruction of records, and that all parties to the conflict were involved. He submitted that the prioritisation by the Iraqi state of the post-conflict needs of IDPs over returnees without documents and thus the inability of returnees without a CSID to avoid destitution was attributable to the direct actions and inactions of the parties to the former conflict and this continued today. There was inadequate evidence before me to enable a finding that the actions of the current Iraqi authorities were such as to lead directly or indirectly to the current difficulties in the operation of the CSID system. What is apparent from the letters from the Iraqi Ambassador is that the Iraqi State is making attempts to rectify the situation even though at this time those efforts are not, on the evidence before me sufficient to enable a finding that the appellant would be able to obtain a CSID. What is apparent from AA and AAH is that the current government is not complicit in the destitution that the appellant will face; that lies with the conflict over the many decades in the past and not with the current Government. Sufi and Elmi, and MI (Palestine) [2018] EWCA Civ 1782 set out the very specific considerations taken into account in those cases. As in Sufi and Elmi, the Court found that on the evidence before it (my emphasis) the conditions in Gaza "are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of [282] of Sufi and Elmi". The findings were predicated directly upon the action/inaction of the relevant authorities or lack of authorities at that time. It cannot be said that the current Iraqi authorities are responsible for the current situation.

(c)        Whether the Home Office policy on the risk in Iraq acknowledges a connection between Article 3 and destitution: Mr Allison submits the policy requires assessment, case-by-case, whether an individual's circumstances met the Article 3 threshold. Mr Jarvis does not accept that the respondent's policy documents either currently or in the past accept that the conditions for destitute people in Iraq were the result of direct or indirect actions of the Iraq Authorities; he submits that the policy, in effect, enables some individuals to fall within it but that this appellant does not, in his circumstances. The policy, extracts of which are set out above, does on its face appear to accept that in many cases, where an individual will be destitute, they are likely to be granted discretionary leave to remain. The policy does not mandate the grant of leave and cannot be said to unequivocally assert that destitution in Iraq rises to the threshold of Article 3.

31.       It was not submitted that this appellant reached the N threshold.

32.       The conditions in which this appellant will find himself are not due to the direct or indirect actions of the current authorities in Iraq. The current regime is attempting to resolve the socio-economic damage as well as to protect civil and political rights from the damage that has occurred in Iraq over the last 30 or so years at least. That there remain difficulties and problems for individuals and families in some areas of the country, are conditions that are covered by the application of the relevant threshold. As MA stated in [63]

"The analysis in Said, by which this court is bound, is that there is no violation of Article 3 by reason only of a person being returned to a country which for economic reasons cannot provide him with basic living standards..."

33.       The assessment of whether destitution rises to the Article 3 threshold requires consideration of the causes of the destitution, not the level of destitution - as per Said and as confirmed in MA. I am satisfied that the cause of the appellant's destitution will not be because of the Iraqi authorities direct or indirect actions. I am satisfied that the destitution will not reach the N threshold. This is not a case where the appellant qualifies for the grant of leave as a direct result of the application of the respondent's policy. The appellant does not reach the threshold for Article 15(b).

34.       In his main skeleton argument dated 7 ^th November 2018, Mr Allisson's submissions are under a joint heading of Article 3/ Article 15(b) and do not seek to draw a distinction between Article 3 and Article 15(b). Mr Jarvis' skeleton argument refers to Article 3 and does not make separate reference to Article 15(b). In response, Mr Allison in his skeleton argument of 20 ^th March 2019 states that no further issues arise from Mr Jarvis' skeleton with regard to Article 15(b) but he addresses Article 3 in terms of what he states is the concession by the Secretary of State in AAH that

"93. ... returnees who were not in possession of a CSID and who were unable to obtain one, would face a real risk of destitution in all parts of Iraq such that Article 3 ECHR would be engaged.

94. The Tribunal agreed that to be the case [see paragraphs 151-152] save that it considered there may be situations in which such an individual would not face destitution ..."

35.       The concession by the Secretary of State in AAH was specific to that case. There has been no such concession in this case. Mr Allisson in his skeleton refers to the stringent criteria to be met to reach the high threshold of Article 3 (see Bensaid [2001] 33 EHRR, J [2005] EWCA] Civ 629, Y and Z (Sri Lanka) [2009] EWCA Civ 362). Said considered the issue of the threshold in Article 3. Although a concession was made in AAH, it does not appear that Said was brought to their attention. The court in MA in paragraph 63 refers to the Said decision as binding upon it. Said is a Court of Appeal and I am bound by that. In my view, the stringent criteria that are considered in Said are not met. The threshold in Article 3 is not met.

Article 15(c)QD

36.       The respondent relies upon the CPIN to support the contention that there has been sufficient durable change to conclude that conditions in Kirkuk have changed and there is no longer a 15(c) risk.

37.       Headnote A [4] of AA(Article 15(c)) Iraq CG [2015] UKUT 544 (30 ^th October 2018) confirms that there was a state of internal armed conflict in the Kirkuk area such that as a general matter there were substantial grounds for believing that any civilian returning there, solely on account of his or her presence there, faced a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of article 15 (c) of the QD. The degree of armed conflict in Baghdad city is not such as to give rise to indiscriminate violence amounting to such serious harm so as to engage Article 15(c). AAH (Iraqi Kurds - internal relocation) Iraq CG [2018] UKUT 212 (IAC) (26 ^th June 2018) declined to interfere with that conclusion. The tribunal in AAH stated that they were not concerned with whether the guidance given in AA in respect of article 15(c) holds good. The appeal in AAH proceeded on the assumption that it did.

38.       The CPIN is a collection of extracts from reports produced by various bodies including the International Organisation of Migration, the UN High Commissioner for Refugees, the World Bank, Jane's, UN Assistance Mission in Iraq, and UN Office for the Coordination of Humanitarian Affairs. Paragraphs 2.3.20 to 2.3.37 of the CPIN are a summary of the security situation which is described in more detail in section 8 of the CPIN report. As referred to in AA, the non-exhaustive list of factors that are relevant to whether an area engages Article 15(c) includes the conduct and relevant strengths of the parties to the conflict, the number of civilian deaths and injuries, levels of displacement and geographical scope of the conflict. The summary of the security situation set out in the CPIN leads the authors of that report to suggest that the security situation has changed significantly since May 2015 when AA considered the evidence. In particular the CPIN refers to a significant decline in security incidents, fatalities and injuries which are "typically tens of times lower than they were in mid 2014"; that "displacement has significantly declined and there has been a significant increase in people returning to their homes"; that "the threat from Daesh has not disappeared entirely, but the group are confined to small pockets and the conflict has changed in nature from open conflict to periodic asymmetric attacks in ... Kirkuk...". Section 8 of the CPIN sets out in more detail the information upon which the summary is produced.

39.       SG (Iraq) [2012] EWCA Civ 940 makes clear that decision makers and Tribunal judges are required to take Country Guidance determinations into account and to follow them unless there are very strong grounds supported by cogent evidence justifying not doing so.

40.       Section 8 of the CPIN provides considerably more detail than is set out in the summary. Although overall in Iraq there may be a reduction in risk, I am not satisfied that the evidence as set out in Section 8 is such as can justify a finding that there has been significant stable or durable change in the Kirkuk area. Section 8 refers to asymmetric attacks as recently as March 2018, an ongoing need for Iraqi security operations, ISIS related insecurity continuing in Kirkuk in July 2018 and increased targeting of the abduction and killing of soldiers, to name but a few matters referred to in section 8. Section 8 is itself a summary of reports received by CPIN and some of the information is of a generalist nature or not specific to any particular area of Iraq. I was not provided with the complete reports that were referred to; the CPIN reproduces extracts or provides a summary. The graphs in Section 8 of the CPIN do appear to show a reduction in security incidents but I cannot be satisfied on the limited evidence produced and relied upon by the respondent that there has been such change as to justify departing from AA.

41.       I note in passing that the appellant relied upon an unreported decision by a Deputy Upper Tribunal Judge in November 2018. No application to admit that decision had been made and there was no certificate that a search had been undertaken in accordance with the Practice Direction 2010/amended 2014. I indicated at the hearing that I would not be relying upon that decision and I have not read it. It is, nevertheless, not relevant to my decision given the paucity of evidence relied upon by the respondent in this appeal [5].

42.       There was no submission that Article 15(c) extended to Baghdad City, to where all Iraqis are returned.

43.       In conclusion on the basis of the evidence before me I am satisfied that there has not been sufficient durable change to conclude that conditions in Kirkuk have changed; there remains an Article 15(c) risk in Kirkuk;

44.       There remain the issues of exclusion and internal relocation to which I return below.

Exclusion from protection

45.       In October 2016 the appellant was sentenced to 10 months' imprisonment (having been allowed a full 1/3 ^rd discount for a guilty plea) for possession of cannabis with intent to supply, and possession of cocaine (1 month to run concurrent). It seems this activated a previous suspended sentence in July 2016 of 14 months for possession of cannabis with intent to supply. S72 Nationality, Immigration and Asylum Act 2002 does not apply. The respondent, in his policy guidance accepts that length of sentence does not, without more, determine the seriousness of an offence for exclusion purposes.

46.       Mr Allisson's November 2018 skeleton argument reproduced an extract from the Secretary of State's policy guidance on what constitutes a 'serious crime'. Mr Jarvis did not dissent from this and I reproduce that which is relevant in this appeal:

"...In deciding whether a crime is serious enough to justify loss of protection, the tribunal must take all facts and matters into account, with regard to the nature of the crime, the part played by the accused in its commission, any mitigating or aggravating features and the eventual penalty imposed. .... Examples of serious crimes include, but are not limited to, murder, rape, arson and armed robbery. Other offences which might be regarded as serious can include those which are accompanied by the use of deadly weapons, involve serious injury to persons, or if there is evidence of serious habitual criminal conduct. Other crimes, though not accompanied by violence, such as large-scale fraud, may also be regarded as serious for the purposes of exclusion."

47.       Although not subject to s72, Mr Jarvis submitted that in determining the issue of exclusion, the factors relevant to a s72 certificate were still relevant. He stressed the seriousness of drugs offences and the effect on society as a whole of such offences.

48.       I accept that submission and accept also that drugs offences are to be considered as particularly serious in the context with which I am concerned. I particularly take note of the fact that the appellant received a suspended sentence for drugs offences and a very short time thereafter he committed further offences including possession of cocaine. A suspended sentence is a sentence passed on condition that the criminal commits no new offences of any description during the period of suspension, yet this appellant disregarded that and committed a fresh offence of a not dissimilar nature involving controlled drugs.

49.       According to the OASys report, the arrest which led to the conviction had taken place at a property managed by Aspire who house and assist young people in the community. The appellant's motivation, as stated by him and recorded in the OASys report, was that he had an expensive cocaine habit and this was the motivation behind the criminal activity ie the decision to continue to supply controlled drugs of Class B. The report states that the appellant recognises the impact and consequences on the victims of his offending and that he was led by peer group pressure. The most recent offence for which he was convicted indicates an escalation in the seriousness of his offending and, according to the OASys report, indicates that he may be at risk of further offending because the potential for financial gain outweighs the risk of being apprehended. The report states that that the writer does "... not assess that drug misuse is linked to RoSH (risk of serious harm) and re-offending as [AA's] addiction has ceased".

50.       The appellant was at the time of the OASys report (19 ^th October 2018) drug free and remains so. His first offences in the UK were in 2015; he has been lawfully resident in the UK since December 2002 and has had indefinite leave to remain since April 2009. So far as I am aware there have been no other offences for which he has been charged or convicted and no other arrests.

51.       The appellant is recorded in the OASys report as not being the "instigator" of the criminal offences. He was however one of three people dealing drugs in a hostel of young people; he was part of a supply chain providing drugs to vulnerable young people. The supply of Class B drugs carries a maximum sentence of 14 years imprisonment; the sentencing guidelines contemplate sentences of up to 10 years; 'street dealing' of Class B drugs fall into a category with a sentencing range up to 4 years custody. Dealing in drugs is very serious, has grave implications for society and is recognised as such by the sentencing powers available on conviction. Nevertheless I recognise that, in this case, the appellant was not sentenced at the higher end and the examples given of those who are to be excluded from protection includes those convicted of murder, rape, arson and serious fraud.

52.       Taking all of these factors into account I find that the appellant is not excluded from protection under Article 15(c).

Relocation

53.       For the reasons given above I have found that the appellant cannot return to Kirkuk (Article 15(c) QD). The appellant would be removed to Baghdad where there is no Article 15(c) risk. For the reasons given above I have found that , on the evidence before me, the appellant will be unlikely to be able to obtain a CSID. I cannot distinguish AAH on the basis of the evidence before me. Applying AAH, I am satisfied that without a CSID or valid passport, if travelling to the IKR, there is a real risk that the appellant will be detained at a checkpoint until the authorities are able to verify his identity and that it is not reasonable to require him to travel between Baghdad and the IKR (where, on the authority of AAH, it seems he would be admitted) absent an ability to verify his identity. He would not be able to fly to the IKR without a CSID or passport.

54.       Accordingly I find that it would be unduly harsh for the appellant to relocate to the IKR.

55.       There remains however the fact that the appellant is to be removed to Baghdad. In the absence of identity documents, it is accepted that he will be destitute. Nevertheless, applying the approach set out in Said and MA, there would be no breach of Article 15(b)QD or Article 3 ECHR; I am satisfied that in those terms relocation to Baghdad, in as much as that is where he is to be returned, would not be unduly harsh.

S117C Nationality, Immigration and Asylum Act 2002 [6].

56.       The appellant is a foreign criminal as defined by s117D. Exception 1 does not apply: he has not lived in the UK for most of his life. Mr Allisson, quite properly, did not submit that Exception 2 applied.

57.       As the Court of Appeal explained in NA (Pakistan) [2016] EWCA Civ 662, Part 5A of the NIAA does not operate in a way as to cause a violation of Article 8. S117(6) applies to foreign criminals who are sentenced to a period of imprisonment of less than 4 years who do not meet either of the Exceptions. The issue before me is thus whether there are very compelling circumstances over and above those described in Exceptions 1 and/or 2.

58.       Paragraph 398 of the Immigration Rules uses the same language as s117C(6). As made clear in NA (Pakistan), a foreign criminal who does not meet Exceptions 1 or 2, is entitled to rely on factors set out in Exception 1 and/or 2 but must be able to point to features of his case falling outside those circumstances which make his claim based on Article 8 exceptionally strong.

59.       Furthermore the effect of NA (Pakistan) in bringing all foreign criminals within the ambit of s117C(6) is such that in determining whether there are very compelling circumstances, I must take into account the seriousness of the particular crime(s) the appellant was convicted of together with any other relevant public interest considerations. The more serious the crime, the greater the very compelling circumstances are required.

60.       The test in s117C(6) is extremely demanding, and a wide-ranging proportionality assessment is required. Although weight is to be given to factors that fall within s117B, the public interest in the deportation of a foreign criminal is high. As said in Hesham Ali [2016] UKSC 60, "very compelling circumstances" means "a very strong claim indeed".

61.       AA has been lawfully in the UK since December 2002. He was 'crime-free' until 2015 and then committed serious drugs offences in quick succession. He has worked since his arrival in the UK and although he has children here in the UK he either does not have a relationship with them or the relationship he has with them is not such as to engage Article 8.

62.       Mr Jarvis, relying upon Bossade (ss117A-D-interrelationship with the Rules) [2015] UKUT 415, submitted that AA was and is not socially and culturally integrated in the UK. Paragraph 5 of the headnote of Bossade reads as follows:

"5. New paragraph 399A of the Immigration Rules remains similar to the old in considering the foreign criminal deportee's situation both in the UK and in the country of return. However, so far as concerns focus on a person's situation in the UK, time in the UK is no longer relevant as such except in the context of lawful residence (399A(a)) and paragraph 399A(b) introduces new criteria that relate to social and cultural integration in the UK. So far as concerns focus on the situation in the country of return, paragraph 399A no longer looks at 'ties' per se but at the more inclusive notion of integration and obstacles thereto. By requiring focus on integration both in relation to a person's circumstances in the UK as well as in the country of return, the new Rules achieve a much more holistic assessment of an appellant's circumstances. Thereby they bring themselves closer to Strasbourg jurisprudence on Article 8 in expulsion cases which has always seen consideration of both dimensions as requiring a wide-ranging assessment: see e.g. Jeunesse v Netherlands (GC) App.No. 12738/10, 31 October 2014, paragraphs 106-109."

63.       In contrast Mr Allisson relied upon Tirabi (Deportation: lawfully resident": s5(1)) [2018] UKUT 199 (IAC) which although the headnote does not report on the 'social and cultural integration' point, is, he submitted relevant; in particular he relied upon paragraph 15 in which the respondent is recorded as conceding that the finding of the First-tier Tribunal judge that the appellant in that case was not socially and culturally integrated because of the offence and his continuing danger to society demonstrated a lack of integration was incorrect.

64.       Neither Tirabi nor Bossade is authority for the proposition that the commission of an offence reflects directly upon the issue of integration. In all cases it is a question of fact and degree and an holistic assessment of the facts and circumstances overall. In this appellant's case he has been lawfully resident, and gainfully employed for some 13 years before he committed offences. He has children in the UK which although not such as to engage Article 8, are matters that can be taken into account in determining integration. I do however note that I have very little information about the children, or indeed the relationships and/or their duration, and have therefore placed very little weight on them in considering integration other than to take their existence into account. The appellant has committed crimes in quick succession, the last of which was committed while subject to a suspended sentence, something designed to deter him from re-offending which of course it did not; the motivation for those was financial gain. The appellant speaks fluent English and is literate and numerate in English. He is not, and has not, on the evidence before me, been reliant on public funds save whilst in prison. I do not know the ages of the children or when he entered into the relationships with their mothers' but he has been lawfully in the UK throughout his time in the UK and has had indefinite leave to remain since 2009. In the light of all the circumstances, including those I have referred to specifically, I am satisfied that the appellant is socially and culturally integrated in the UK.

65.       The OASys report does not disclose concerns that the appellant would be unable to find adequate employment in the UK. It makes reference to the appellant's awareness that he requires funds to support himself during any periods of unemployment and that he has prepared for this. The OASys report does not express any concerns that periods of unemployment would lead to further criminality, although I note that although the appellant has been crime-free since his release from prison on licence and since the expiry of the licence, the report does suggest an increase in risk of criminality in the second year of release. He is currently well into his second year of release.

66.       It appears, on the face of it, that the appellant is rehabilitated. The fact the appellant has not committed any further crimes since his release does no more than show that the appellant has returned to the place where society expects him to be - a person who does not commit crime. Similarly, the fact that he is now drug-free places him where society expects him to be. I recognise that the appellant is rehabilitated although he is still within two years of his release. I place no material weight on this rehabilitation in the proportionality balance in these circumstances - see SE (Zimbabwe) [2014] EWCA Civ 256.

67.       The appellant will, on return to Iraq, be destitute. He has not lived in Iraq since 2002; he has, so far as he knows, no family there. I do not know how long it took him to travel to Sangatte but he was aged 21 when he arrived in the UK. His first language is Kurdish Sorani; he does not speak Arabic and has a very limited understanding of Arabic. He would not be able to travel out of Baghdad without being at risk of detention because he has no identity documents and cannot, on the evidence before me, be realistically expected to obtain them. Mr Jarvis in his skeleton argument refers to there being no restriction on aid from NGOs or international organisations and that there is an infrastructure in Baghdad. This seems to contradict the acknowledgement by the SSHD that if the appellant is unable to access a CSID or other forms of identity he would be destitute on return to Baghdad ie without the means of subsistence; lacking food, clothing, and shelter. Integration in society facilitates effective participation. Destitute, the appellant would face very significant obstacles to his re-integration in Iraq.

68.       The issue however is not simply whether the appellant would face very significant obstacles to re-integration. He does not meet Exception 1 (or 2); this appellant is required to show very compelling circumstances over and above that which is described in Exception 1.

69.       SL (St Lucia) [2018] EWCA Civ 1894 is relied upon by Mr Jarvis to support his submission that Article 8 is not a 'watered down' version of Article 3. Mr Allisson submits that SL, a health care case, has little relevance. It is correct that SL is a health care case but nevertheless the Court of Appeal makes plain that determining whether there is a breach of Article 8 (if it is engaged):

"25. ... requires a balance to be performed of the interference with family and private life of all individuals involved, against the public interest and the private rights and interests of others. Therefore, the whole focus and structure of article 8 is different from article 3."

70.       In this appeal, there is no significant interference with the appellant's private life in the UK such as would, in the normal course of events, when placed in the balance to be struck where there is criminality, amount to very compelling circumstances. This appellant is a foreign criminal; his earlier sentence was passed in the expectation that, although for an offence where a custodial sentence would be the norm, the court was persuaded to suspend the sentence in the expectation, which proved to be misplaced, that the appellant would commit no further drug offences.

71.       There is a strong public interest in deporting him. Very compelling circumstances requires a very strong case to be made out to displace the public interest, bearing in mind particularly the seriousness of his offences.

72.       The appellant will be destitute but that destitution does not meet the threshold of Article 15(b)QD or Article 3. It is not unduly harsh, given that he does not meet Article 15(b)QD or Article 3 threshold, for him to relocate from Kirkuk, where the Article 15(c)QD threshold is met. Those are factors to be taken into account in determining whether there are very compelling circumstances but very compelling circumstances is not equivalent to reaching the threshold demanded of Article 3 or Article 15(b)QD.

73.       A close analogy is where in a health case an individual could not meet the high threshold to receive protection on Article 3 grounds, but the combination of health and the person's private and/or family life circumstances are such as to meet the Article 8 threshold. A very strong case is required, but that is not the same as concluding that Article 3 must be met.

74.       Destitution is more than a very significant obstacle. It is possibly life threatening.

75.       In examining whether there are very compelling circumstances such as to enable the appellant to avoid deportation, the weight of the public interest in deporting the appellant is to be weighed in the balance. The more serious the crime, the greater the public interest in deporting him.

76.       His sentence of imprisonment is in the middle range for 'street dealing' and I give due weight to that; I also note however that credit was given for a guilty plea. Drug dealing is a serious crime and it is rightly punished with heavy sentences, is publicly abhorrent and deterrence is an important factor in that public interest. Although he has been lawfully in the UK since his arrival, his criminal activity continued despite having received a suspended sentence; that counts heavily against him. There is some support for the proposition, given that he is now into his second year of release without further offences, that he is unlikely to commit further offences. But that is of little material weight in the balancing exercise.

77.       Drawing all of these matters together, I have reached the following conclusions. This decision is very finely balanced with matters that speak cogently both for and against the appellant; a balance has to be struck between those competing interests. I find that what tips the balance in the appellant's favour, although only just, is that he has been lawfully in the UK since 2002 and he would be destitute on his return to Iraq with no or very little hope of being able to rectify that situation and no or little means of surviving. I find that the totality of the factors in his favour are, just, sufficient to reach the threshold of very compelling circumstances when balanced against the high threshold of the public interest in his case in his deportation. If deported to Iraq he would be unable to re-establish anything approaching a private life that was more than meaningless. I am not comparing the right to respect for a private life established in the UK, but the right to respect for private life that could be established in Iraq, in the context of the conditions in Iraq. There is a right to respect for private life and in the context of a deportation to Iraq for this appellant, taking fully into account the balance to be considered and the high public interest in his deportation, I am satisfied that in his case the threshold of very compelling circumstances is met.

78.       If it were not for the totality of this appellant's circumstances I would have no hesitation is concluding that his deportation was proportionate and that he had not, given the nature of his criminality, come anywhere close to reaching the high threshold required to find that he fell within paragraph 117C(6).

 

Summary of conclusions

79.       Returning the appellant to Baghdad would not result in a breach of Article 15(b) Qualification Directive.

80.       Returning the appellant to Baghdad would not result in a breach of Article 3 ECHR.

81.       There has not, on the evidence before me, been sufficient durable change to conclude that conditions in Kirkuk have changed; there remains an Article 15(c) risk in Kirkuk; the appellant is not excluded from protection under Article 15(c); relocation to Baghdad would not be unduly harsh.

82.       There are very compelling circumstances such that the high public interest in this appellant's deportation is displaced.

Conclusions:

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

I set aside the decision

I re-make the decision in the appeal by allowing it on human rights grounds.

Anonymity

The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I continue that order (pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008)

 

 

Date 4 ^th April 2019

 

Upper Tribunal Judge Coker