Upper Tribunal (Immigration and asylum chamber), 2024-03-11, UI-2021-001768
| Appeal Number | UI-2021-001768 |
| Hearing Date | 23 October 2023 |
| Date | 11 March 2024 |
| Published date | 26 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2021-001768 (PA/52762/2021)
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2021-001768 |
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First-tier Tribunal No: PA/52762/2021 IA/08283/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 11th March 2024
Before
UPPER TRIBUNAL JUDGE REEDS
Between
MIA
(ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G. Brown, Counsel instructed on behalf of the appellant.
For the Respondent : Ms Z. Young, Senior Presenting Officer
Heard on 23 October 2023
Order Regarding Anonymity
Anonymity is granted because the facts of the appeal involve a protection claim. 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
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Pursuant to section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, this is the remaking of the decision of Judge of the First-tier Tribunal Lodato promulgated on the 17 December 2021 following the decision dated 22 November 2022 (promulgated on 19/12/22) of the Upper Tribunal setting aside the decision of the FtT having found a material error of law in that decision for the reasons set out in that decision. That decision is annexed to this decision marked “Annex A”.
The background:
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The appellant is a citizen of Iraq of Kurdish ethnicity from the IKR. The basis of his claim is set out in the decision letter and summarised in the decision of the FtTJ.
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The basis of his claim is set out in the decision letter and summarised in the decision of the FtTJ from paragraphs 10-21. It is summarised as follows. The appellant based his protection claim on the basis of being a target of honour-based violence. The appellant worked as a shepherd on his family farm. There was a well outside his home, and he would open the cap of the well during the day for people to collect their water.
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In February or March 2019 the appellant met C when she came to the well to take some water. He helped her carry the Jerry can and also began speaking to her. He had thoughts of marrying her. The appellant continued to meet C when she came to take water from the well 2 or 3 times a week. They fell in love with each other.
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The appellant stated that he told C that he would send his family to propose to her, but she told that they could not do that she had been promised to another man, since she was a child. This man (J) lived abroad, and C did not like him.
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The appellant continued his relationship with C discreetly for approximately 3 months as he was in love with her could not live without her. He asked his family to propose to see anyway, and check if the other man had feelings for her. J’s father was unexpectedly at C’s home when the appellant’s father and elders visited to propose. He was very angry and expelled the appellant’s father from the house. The appellant’s father told the appellant never to get close to C’s house again. C was stopped from coming to collect water and after approximately 1 ½ months J returned from abroad and married her. After approximately 2 to 2 ½ months after J married C, the appellant received a phone call from C who was very distressed and said J was mistreating her. He stated that she was very distressed, and she wanted to kill herself. She said it was appalling life for her to live with J and that J was ill treating her. The appellant said that C should mention it her own family. She said that she had mentioned it to her family, but she was advised to wait and be patient because if she got divorced then her brother would need to divorce J’s sister. He said J would go back home late at night drunk and he would beat her (see Q172).
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Approximately 2 or 3 days later, C called the appellant again and asked him to come to her house as nobody was at home. She told him that she needed him for something, and he did not want to let her down . She spotted him from far away and to open the gate and told him to come in quickly. He went in but the door was unlocked, and they went to a rear room. They had another gate at the rear of the house. They both went into the rear room, and both started crying and expressed their feelings . This went on for about 10 to 15 minutes then C sat on his lap. They became intimate and had sexual intercourse (Q172).
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J’s mother suddenly came in and saw the appellant and C and screamed. He said J’s mother lived next door and simply visited unannounced when she saw the couple together (see paragraph 20 of witness statement).
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The appellant managed to run away but C did not. He hid in a mountain and then went to his uncle’s house in Erbil.
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The appellant’s mother phoned his uncle and told him his family home had been raided 2 or 3 times by J, C’s father and her brothers, and told his uncle to take care of him and to get out of the country. When questioned at the hearing, the appellant described how, in the aftermath of his discovery with C the home was raided by 2 to 3 armed men who worked for C’s father. He denied giving the answer recorded a question 186 of the substantive interview where he said that J, C’s father and her brother raided the home (see paragraph 16 of FtTJ’s decision).
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It is asserted that C’s father was a Peshmerga general and was powerful and influential. C’s brothers are their father’s bodyguard.
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The appellant feared that if he were to return to Iraq he would be killed by J and C’s father and brother.
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It is recorded that the appellant was cross-examined about the power and influence of C’s family during the hearing. The appellant said that C’s father was such a powerful figure that he tended to work from home where he was able to deploy agents to work on his behalf. He planned combat operations. While he was well known in their village, he did not court publicity. The appellant denied giving the answer recorded a question 2 to 3 of his substantive interview where it was noted that he said that C’s parents did not have any influence (see paragraph 15 of the FtTJ’s decision).
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In re-examination the appellant was asked to expand upon the suggested inconsistencies recorded questions 186 and 223 of the interview. He said that he was stressed and anxious and could not recall giving the answer to question 186. In relation to his answer to question 223, he said that C’s family were influential as part of a big and powerful tribe. He also referred to the main Democratic party of Kurdistan.
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In relation to documentation, the appellant said that he left his CSID card with his family in Iraq. He was unable to contact them because he no longer had access to the mobile phone he had in Iraq which contained his family’s contact details. On examination GP said that he had not contacted his family since his arrival in the UK because he was embarrassed about all the trouble he had caused. This is also the reason why he had not attempted to find out about C’s welfare since he left because he could not only hope to reach to his family. He was asked if he was not worried about his family’s safety, he reiterated that he was embarrassed to contact them and, in any event, he was at risk of harm as opposed to his family members. He accepted he could use social media to trace his family if he were inclined to do so (paragraph 14 of FtTJ’s decision).
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The appeal came before the FtTJ on 9 December 2021. In a decision promulgated on 17 December 2021 the FtTJ dismissed the appeal on asylum grounds and on human rights grounds.
The FtTJ set out his factual findings and assessment of the evidence at paragraphs [30-40]. The FtTJ set out that the respondent did not dispute that the appellant was in a relationship with C before he left Iraq, and neither was he meaningfully challenged about the circumstances in which he was discovered with C. The judge accepted the appellant’s evidence concerning the relationship, how it developed and that they were discovered in compromising circumstances (see paragraphs 30 – 31). The FtTJ did not accept the appellant’s account that the members of C’s family were powerful or had any influence or profile in the way described (see paragraphs 32 – 33) and rejected the appellant’s evidence as to the interest taken in his family in their home after the discovery of his relationship with C (see paragraph 33). At paragraph 35 the FtTJ rejected the explanation given by the appellant as to the discrepant evidence on those 2 issues. At paragraph 36 the judge referred to the lack of evidence that the tribe to which C belonged to exerted far-reaching influence so that the appellant would not be able to find sanctuary in a “distant part of the IKR”. At paragraph 37, he did not find that the appellant’s failure to claim asylum undermined his credibility. At paragraph 38, the FtTJ set out his reasoning as to why the appellant would be able to obtain...
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