Upper Tribunal (Immigration and asylum chamber), 2024-03-11, UI-2022-006020
| Appeal Number | UI-2022-006020 |
| Hearing Date | 22 January 2024 |
| Date | 11 March 2024 |
| Published date | 26 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006020
[HU/13318/2019]
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-006020
[HU/13318/2019]
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 11 March 2024
Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
RK
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms K. McCarthy, Counsel instructed by Direct Access
For the Respondent: Ms A. Nolan, Senior Home Office Presenting Officer
Heard at Field House on 22 January 2024
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of her family 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 (and/or other person). Failure to comply with this order could amount to a contempt of court.
DECISION AND REASONS
INTRODUCTION
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This appeal comes back before me following a hearing on 3 April 2023 following which I decided that the First-tier Tribunal (“FtT”) erred in law in its decision dismissing this appellant’s appeal which was based solely on Refugee Convention grounds. I decided that the decision would be re-made before me in the Upper Tribunal (“UT”).
-
In order to put into context my decision on re-making it is useful to reproduce certain paragraphs of my earlier (error of law) decision as follows.
“1. The appellant is a citizen of Iraq, born in 1997, who arrived in the UK on 10 November 2014. He was granted humanitarian protection (“HP”) on 10 November 2016 after a successful appeal to the First-tier Tribunal (“FtT”) and then 12 months’ discretionary leave to remain on 8 June 2020 (“DLR”).
2. On 14 December 2018 he pleaded guilty to unlawful wounding and having a bladed article in a public place. On 31 January 2019 he received a sentence of 15 months’ imprisonment.
3. On 23 July 2019 the respondent made a decision to revoke the appellant’s HP pursuant to paragraph 339GA of the Immigration Rules (change in country circumstances) and 339GB (exclusion from HP on the basis of danger to the community). At the same time a decision was made [to] refuse a human rights claim (in response to the appellant’s representations made in terms of why his HP should not be revoked).
4. On 18 May 2020 the appellant was convicted of a further offence: detaining a child without lawful authority under section 2 of the Child Abduction Act 1984. He received a 12 months’ conditional discharge and made the subject of a restraining order.
5. Although the respondent began deportation action by inviting representations from the appellant as to why he should not be deported, on 8 June 2020 a decision was made not to deport him for the time being because of the issues arising in terms of his ability to obtain official Iraqi documentation for use in internal relocation and reintegration. He was instead granted 12 months DLR.
6. The appellant appealed the decision to revoke his HP. The FtT allowed his appeal but the Upper Tribunal (“UT”) found an error of law in the FtT’s decision and the appeal was then dismissed by the UT on a re-making. That decision of the UT is reported as Kakarash (revocation of HP; respondent’s policy) [2021] UKUT 00236 (IAC).
7. The UT allowed the appellant to revive a ground of appeal based on the Refugee Convention. The appeal was remitted to the FtT for the appeal to be heard on that ground alone.
8. The appeal came before First-tier Tribunal Judge Cartin (“the FtJ”) at a hearing on 22 March 2022. In a decision promulgated on 30 June 2022 the FtJ dismissed the appeal based on the Refugee Convention ground.
9. Permission to appeal the decision of the FtJ was granted on the basis that it was arguable that the FtJ’s conclusions are “inconsistent with the respondent’s concession that the appellant was at risk of serious harm in Iraq”, but the grant of permission was not limited.
…
Assessment and conclusions
40. The appellant is excluded from HP, as is clear from the decision of this Tribunal in Kakarash (revocation of HP; respondent’s policy) [2021] UKUT 00236 (IAC). The only ground of appeal before the FtJ was that in relation to the Refugee Convention.
41. The respondent’s letter to the appellant dated 4 June 2020 said the following at paragraph 8:
“…the Secretary of State will not be taking steps to deport you for the time being. This is because there is currently a legal barrier that prevents you from being deported; the situation regarding access to and acquisition of official Iraqi government documentation, and its use in relocation and re-integration in Iraq, as set out in the case of SMO, KSP & IM (Article 15(c); identity documents) (CG).”
42. Paragraph 11 states as follows:
“While the objective evidence continues to indicate that conditions in the formerly-disputed areas of Iraq are such that there is not a general risk to individuals there which would engage Article 3 or Article 15(c) of the EC Qualification Directive (indeed, SMO confirms there to be no generalised risk, and the disputed area to be limited to a remote region only), other findings in SMO relating to the availability of official documentation, the risk of internal travel in the absence of such documentation, and your known personal circumstances lead the Secretary of State to accept a risk on return as identified in SMO. To that end, arguments under Immigration Rule 339GA are no longer relied upon.”
43. In other words, on the basis of the then country guidance and the appellant’s “known personal circumstances”, the lack of documentation held by him and the risk of internal travel without such documents, it was accepted that the appellant would be at risk on return to Iraq. It can reasonably be assumed, given the reference to the appellant’s “known personal circumstances”, that the Secretary of State also had in mind in that letter the findings made by Judge Jones in his decision that it would be “unduly harsh for the appellant to relocate within the IKR” ([74]-[75]).
44. The FtJ considered Judge Jones’ decision and the basis for the conclusion he reached that the appellant would not be able to relocate internally to the IKR. At [27] he referred to the concession that the appellant would be at risk of serious harm “on account of the risk of internal travel in the absence of the requisite documentation”. He went on to focus on the question that he had to determine, namely whether “the risk is one that engages the Refugee Convention”.
45. It is not apparent from the FtJ’s decision that submissions were made on behalf of the respondent resiling from the position clearly set out in the letter dated 4 June 2020 to which I have referred above. I accept, therefore, that Ms McCarthy is right when she says that nowhere has the respondent suggested that the appellant could voluntarily relocate to Erbil and document himself there. The letter of June 2020 does not say so, albeit that it was written in the light of the situation in Iraq as it was then, and such does not appear to have been the respondent’s case before the FtJ, as far as can be determined.
46. The FtJ was right, in assessing whether the appellant could bring himself within the Refugee Convention, to refer to the guidance given in SA (Iraq), at paragraph (ii) of the headnote, namely that:
“A person (“P”) who would be at risk on an enforced return but who could safely make a voluntary return is not outside P’s country on account of a well-founded fear of persecution. P is consequently not owed the obligation of non-refoulement in Article 33(1) of the Refugee Convention and cannot succeed on the ground of appeal in s84(1)(a).”
47. The FtJ's primary conclusion was that the appellant was not able to bring himself within any Refugee Convention ground with reference to a return to his home area. Mr Clarke was in a sense correct to submit that the FtJ was not concerned with risk but whether the appellant could bring himself within the Refugee Convention. However, the risk on return to his home area is relevant in that context. The guidance given in SA (Iraq), which I have quoted above, is predicated on the basis of a ‘safe’ voluntary return, a matter to which the FtJ adverted more than once. The findings made by Judge Jones, and implicitly taken into account in the respondent’s letter of June 2020, are inconsistent with the proposition that the appellant could make a safe return to his home area, based amongst other things on his particular circumstances.
48. The FtJ concluded that the appellant would not in fact be at risk in his home area, for the several reasons that he gave. I have not been referred to the various authorities on the issue of concessions, but I do not need to refer to them for myself. Mr Clarke did not resile from the suggestion that there was a concession on the part of the respondent in play here in terms of risk on return. Indeed, the submission before me on behalf of the respondent that the concession was a concession “of its time” accepts that there was such a concession. Although it was submitted that the letter of June 2020 does not make any concession with reference to the...
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