Upper Tribunal (Immigration and asylum chamber), 2019-04-09, PA/10173/2017
| Jurisdiction | UK Non-devolved |
| Date | 09 April 2019 |
| Published date | 24 May 2019 |
| Hearing Date | 21 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/10173/2017 |
Appeal Number: PA/10173/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/10173/2017
THE IMMIGRATION ACTS
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Heard at Field House |
Determination & Reasons Promulgated |
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On 21st March 2019 |
On 9th April 2019 |
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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
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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 8th 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
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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.
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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.
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The resumed hearing was listed before me on 7th 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.
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Hence the appeal came before me on 21 March 2019. I had the following relevant documents before me:
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Original Home Office bundle
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Appellant’s bundle before the First-tier Tribunal hearing on 30th of January 2018
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letter from the British Red Cross dated 8th March 2019
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OASys report following a completed assessment on 29th of October 2018
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An undated and unsigned witness statement the appellant sent under cover of a letter dated 5 December 2018 (December witness statement)
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CPIN Iraq: security and humanitarian situation, Version 5.0, November 2018
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Skeleton arguments prepared by Mr Allison dated 3 August 2018, 7 November 2018, 4 February 2019 and 20 March 2019.
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Skeleton argument prepared by Mr Jarvis dated 12 March 2019
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Bundle of authorities to which I added MA(Somalia) [2018] EWCA Civ 994
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I was also referred to the CPIN Iraq: Internal relocation, civil documentation and returns (version 9, February 2019).
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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
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The appellant gave oral evidence in English. He confirmed that his witness statement that had been submitted to the First-tier Tribunal (dated 24th 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.
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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.
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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.
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In the December witness statement (repeating the evidence set out in his witness statement to the First-tier Tribunal dated 24th 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.
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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.
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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
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The issues before me, which overlap, are as follows:
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The section 72 certificate
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Article 3 ECHR/Article 15(b) Qualification Directive (QD)
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Article 15(c) Qualification Directive (QD)1
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Exclusion from protection
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Relocation
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Article 8.
Discussion
Section 72 certificate
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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
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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.
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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.
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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...
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