AA (Iraq) v Secretary of State for the Home Department

Hearing date: 22 June 2017

Judgment Approved

This is the judgment of the Court to which we have both contributed. This case presents the unusual situation where both the Appellant and the Respondent Secretary of State agree there is an error in a Country Guidance Case, and agree that the appeal should be allowed albeit on a narrow ground. The point concerns an Iraqi Civil Status Identity Document ("CSID"). There is also a jurisdictional issue between the parties, affecting the appeal itself.

The Facts

For present purposes, the facts are not in contention. This case has a long and complex litigation history. The Appellant is a national of Iraq. He was born on 3 September 1991. He is Kurdish. He claims to come from Dubis, in Kirkuk governorate, where he lived for all but five years of his life before coming to the United Kingdom ("UK").

The Appellant entered the UK unlawfully on 8 January 2009. He claimed asylum the same day. His asylum claim was refused on 18 June 2009. His appeal against that decision was dismissed on 8 September 2009. Reconsideration was refused by Senior Immigration Judge Eshun on 30 September 2009. On 27 January 2010, Burnett J granted an order for reconsideration. His appeal was re-heard by the Upper Tribunal ("UT") on 22 February 2011. In a determination dated 7 April 2011, Designated Immigration Judge Wynne dismissed the appeal.

The basis of his asylum appeal was a claimed fear of ill-treatment on account of his father's alleged status as a former high-ranking member of the Ba'ath Party. He also claimed his uncle was of a lesser rank in the Ba'ath Party. He relied on Article 15(c) of the Qualification Directive.

The Appellant was found not to be credible. At [68], DIJ Wynne held that he had "grave concerns as to his testimony". He held that he was not satisfied that the Appellant had demonstrated that his father was a high-ranking Ba'ath Party official or that his uncle was of a lesser rank: [78]. Even if these allegations were true, there was no evidence that his relatives had faced any form of ill-treatment. His asylum appeal thus failed: [79].

As regards his Article 15(c) claim, he relied on an assertion that his remaining family had left Iraq for Syria and so he could not relocate to the KRG. DIJ Wynne held:

"86. I reject this submission. I do so because I do not accept there is any reliable evidence the Appellant's family have left Iraq for Syria. In any event, even if his mother uncle and sisters have done so, this ignores the existence of his cousin Abdul Sattar who assisted him in leaving Iraq. This gentleman operates a business. I refer in this regard to paragraph 10 of the Appellant's witness statement of 29 October 2010 in which he states amongst other things –

"My cousin, Abdul Sattar was not living with the rest of the family in Syria, as he is a lorry driver and travels to different places but he was visiting the family when I spoke to my mother and him in May 2010."

87. It is thus likely on the Appellant's own account Abdul Sattar remains in Iraq from time to time and whilst to a certain extent itinerant in the course of business is likely to be based in Kirkuk. There is no adequate explanation forthcoming from the Appellant or any other source as to the reason why Abdul Sattar cannot act as the Appellant's sponsor / guarantor."

Accordingly, the Article 15(c) claim also failed.

Permission to appeal to the Court of Appeal was initially refused on the papers on 1 July 2011. A renewed application to the Court of Appeal was refused on the papers by Moses LJ on 5 December 2011. On 13 December 2011, the Court of Appeal handed down judgment in HM (Iraq) v. Secretary of State for the Home Department[2011] EWCA Civ 1536 (" HM1"). The Court remitted that country guidance case for redetermination because of a procedural error at the original hearing.

Following the hand-down of HM1, the Appellant amended his grounds of appeal. Permission was granted on the amended ground by Laws LJ on 8 March 2012. In light of developments in the HM litigation on Article 15(c) in Iraq, the Secretary of State conceded the Appellant's appeal and agreed to its remittal to the UT. The Court of Appeal so ordered on 25 October 2012.

The Tribunal listed the appeal for country guidance on the issue of the application of Article 15(c) of the Qualification Directive to Iraq. It was heard on 18 and 19 May 2015. On 30 October 2015, the Tribunal promulgated its determination. Detailed country guidance is summarised at [204]. The Appellant's individual case is dealt with at [205]–[210]. It was remitted to the First-tier Tribunal ("FtT") for further fact-finding: [210].

Permission to appeal was refused by UTJ O'Connor on 30 November 2015. Permission was granted following an oral hearing by Christopher Clarke and Sharp LJJ on 21 July 2016, on one, reformulated ground, as follows:

"The Upper Tribunal erred in concluding, at paragraph 170 of the determination, that the question of whether a CSID card could be obtained by an applicant arose for consideration only where the Secretary of State asserts that his removal to Iraq is feasible. As part of an assessment as to whether an individual requires international protection a decision maker is (a) bound to consider whether the individual concerned has a CSID card or could obtain one either prior to, or shortly after removal to Baghdad, failing which (in the absence of an alternative means of support) his circumstances are likely to amount to a breach of article 3ECHR and (b) not entitled to postpone any decision on that question if it is not feasible for him to be returned to Iraq."

The Jurisdictional Issue

It will be understood that the UT has allowed the appeal and remitted the case to the FtT for further fact finding, and at the same time permission has been granted to appeal to this Court. The Secretary of State has expressed concern about this, and about whether this Court has jurisdiction to hear an appeal in such circumstances. Indeed, with some diffidence Mr Blundell for the Secretary of State has submitted we do not. The Secretary of State does not seek to prevent the Court dealing with the identified error. Rather the opposite: both parties would wish it to be addressed. However, the concern arises from the decision of the Upper Tribunal (Immigration and Asylum Chamber) in VOM (Error of law when appealable) Nigeria[2016] UKUT 00410 (IAC).

The Upper Tribunal in VOM, in a constitution headed by the President of UTIAC, McCloskey J, had to consider the statutory basis of appeal from the UT to the Court of Appeal. The procedural position in that case was that the UT heard combined appeals from both sides on two critical but discrete issues. The essential ruling and order was recited in [5]:

"….

"The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law insofar as the assessment of exceptional circumstances in paragraph 398 of the Immigration Rules is concerned. I set aside the decision insofar as it relates to that finding. The First-tier Tribunal did not err in law in its findings with regard to Article 3 and I do not set aside that decision".

The UT Judge formulated certain consequential case management directions relating to the provision of evidence and, further, provisionally relisting the appeal for hearing on 15 March 2016 for the purpose of remaking the decision of the FtT."

The Appellant in VOM sought permission from the UT to appeal that conclusion, on the basis that the UT was wrong as to the error of law on the part of the FtT, and wrong to set aside the decision. For present purposes, whether those criticisms were correct or not is immaterial. McCloskey J and his colleagues had to decide whether, in such circumstances, an appeal lies to the Court of Appeal.

The UT in VOM re-emphasised that appellate jurisdictions, including the jurisdiction of this Court, are based on statute. Appeal to this Court from the UT is no exception. The relevant provisions are contained in Sections 82 and 104 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), Sections 11, 12 and 13 of the Tribunals, Courts and Enforcement Act 2007 ("the 2007 Act"), Article 3 of the Appeals (Excluded Decisions) Order 2009, as amended, and Rules 2 and 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The UT in VOM also made reference to Section 13(6) of the 2007 Act, which provides for the "second appeal" test governing appeals from the UT. In the report in VOM, the statutory provisions are set out in full. We do not need to repeat them all here.

The most important provisions for present purposes are Sections 12 and 13 of the 2007 Act, and the critical parts read:

" Section 12

Proceedings on appeal to Upper Tribunal

(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.

(2) The Upper Tribunal –

(a) may (but need not) set aside the decision of the First-tier Tribunal, and

(b) if it does, must either–

(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii) re-make the decision.

(3) In acting under...