Upper Tribunal (Immigration and asylum chamber), 2019-05-17, PA/04272/2018
| Jurisdiction | UK Non-devolved |
| Date | 17 May 2019 |
| Published date | 18 July 2019 |
| Hearing Date | 03 May 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | PA/04272/2018 |
Appeal Number: PA/04272/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/04272/2018
THE IMMIGRATION ACTS
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Heard at Manchester Civil Justice Centre |
Decision & Reasons Promulgated |
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On May 3, 2019 |
On May 17, 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE ALIS
Between
K A
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms Patel, Counsel, instructed by Knightbridge Solicitors
For the Respondent: Mr Tan, a Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant entered the United Kingdom on March 14, 2017 and claimed asylum on March 17, 2017. The respondent refused his application under paragraphs 336 and 339M/339F HC 395 on March 12, 2018.
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The appellant appealed this decision on March 28, 2018 under Section 82(1) of the Nationality, Immigration and Asylum Act 2002, arguing he would be persecuted based on his imputed political opinion and ethnicity.
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The appellant’s appeal was heard by Judge of the First-tier Tribunal Devlin on May 10, 2018 and in a decision promulgated on June 19, 2018 the Judge dismissed the appellant’s appeal both on protection and human rights grounds.
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Permission to appeal was granted by Designated Judge of the First-tier Tribunal Shaerf on a limited basis on the ground that the Judge had relied on the Court of Appeal decision in AA (Iraq) v SSHD [2017] EWCA Civ 944, which had been superseded by the Upper Tribunal decision in AAH (Iraqi Kurds - internal relocation) Iraq (CG) [2018] UKUT 212 (IAC).
Direction Regarding Anonymity – Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
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Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.
submissions
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Ms Patel acknowledged that permission to appeal had been on a limited basis and argued that the Judge had erred by failing to consider the more recent country guidance decision despite the fact it had been handed down subsequent to the promulgation of the Judge’s decision. She relied on the Upper Tribunal decision of Adam (Rule 45: authoritative decisions) [2017] UKUT 00370 (IAC) as evidence that the Tribunal should take account of country guidance decisions and she invited the Tribunal to ignore the Court of Appeal decision in NA (Libya) v SSHD [2017] EWCA Civ 143.
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Mr Tan opposed the application and submitted that the Court of Appeal had made clear in NA (Libya) that country guidance decisions were not to be used to set aside previous Tribunal decisions and he referred me to paragraph 27 of that decision. In SA (Sri Lanka) v SSHD [2014] EWCA Civ 683 the Court of Appeal held there was no error of law by the Upper Tribunal in deciding an asylum claim on the basis of a country guidance then in force and that the correct remedy where the country guidance had changed was for an applicant to make further submissions under paragraph 353 HC 395 based on new guidance.
finding on Error in Law
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Permission to appeal had been granted on a very narrow basis and the sole issue to consider was whether this Tribunal had the power to revisit the Judge’s decision in circumstances where a country guidance decision had been issued after the promulgation of the decision.
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Both representatives presented contrary arguments, and both relied on different decisions in support of their arguments.
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Ms Patel referred me to the decision of Adam and in particular paragraph 8, in which the Upper Tribunal stated:
“We emphasise, however, the restrictions which specifically appear within Rule 45. What this decision does is to open the possibility of review to cases where the decision of the Upper Tribunal which is under challenge by an application for permission to appeal to the Court of Appeal is one which might have been affected by an authoritative decision within the terms of paragraph 12 of the Practice Direction. The power to review still only arises where the authority in question could have a material effect on the decision. In terms of Rule 45(1)(a) it may be that a complete failure to notice the existence of a relevant country guidance decision might constitute overlooking it but nevertheless a question on review would have to be whether the country guidance decision in question could have had a material effect on the decision of the Upper Tribunal and similar considerations related to paragraph (b). Therefore this decision opens a door to review: it does not mean that every case where there is a country guidance decision in existence or in issue the power to review would be exercised.”
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It is important to note that this decision is not an authority to review all decisions and, in particular, the decision refers to a review of a decision of the Upper Tribunal rather than a decision of the First-tier Tribunal. Rule 45 of the Tribunal Procedure (Upper Tribunal) Rules 2008 specifically refers to “Upper Tribunal’s consideration of an application for permission to appeal”.
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Mr Tan argued that the Court of Appeal had emphasised, in NA (Libya), that the issuing of a country guidance decision after the promulgation of a decision does not mean the original decision was wrong. Reliance was placed on SA (Libya) and the fact that the appellant would have the option to revisit the issue by way of fresh grounds of appeal.
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Having considered the submissions, I find this case could be covered by Rule 45 of the 2008 Rules because it is an application for permission to appeal. The guidance issued by the Upper Tribunal in Adam makes it clear that not every case is affected by the subsequent issuing of a country guidance decision.
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Iraq is an unusual country in that the situation on the ground is “fluid” but significant factors in this appeal is that AAH was promulgated seven days after the First-tier Judge issued his decision and AAH is therefore based on factors in existence at the time the Judge heard the evidence.
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The Judge decided the case on evidence before him and made clear findings, but he did not have the benefit of hearing from experts who gave evidence to the Upper Tribunal in AAH. The country evidence in AAH must have relevance and I therefore find, through no fault of the Judge, there is an error because the country information in AAH does impact on how the Judge should approach the case.
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Having found an error in law, I invited both Ms Patel and Mr Tan to make oral submissions on the remaking of the decision.
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Mr Tan submitted there was no dispute that the appellant was from the IKR and the First-tier Judge made findings on the appellant’s case which included:-
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the appellant’s passport was with the German authorities;
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the appellant’s documents had not been destroyed as claimed and
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he had contact to his family, who continued to live within the IKR.
He submitted that, given those circumstances, it would be possible for the appellant to obtain the necessary documents he would need (either a passport or a CSID) to enable him to return to Baghdad. The appellant’s mother was a lawyer working within the IKR and his father owned a car dealership and the appellant remained in contact with them. His family would be able to assist him obtain his documentation. There were also direct and viable flights now running between London and the IKR but only if an appellant was willing to fly back voluntarily.
Ultimately, that was a matter for the appellant but that was also an option and it was also possible for him to fly to Baghdad and then obtain a certification letter in line with the Home Office Policy Guidance and Information document dated February, 2019.
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Ms Patel submitted that the key issue in this case was whether he could obtain a CSID or passport...
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