Upper Tribunal (Immigration and asylum chamber), 2020-05-22, PA/08004/2019
| Jurisdiction | UK Non-devolved |
| Date | 22 May 2020 |
| Published date | 05 June 2020 |
| Hearing Date | 19 May 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/08004/2019 |
Appeal Number: PA/08004/2019
|
Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: PA/08004/2019 (P) |
THE IMMIGRATION ACTS
|
Decided under Rule 34 On 19 May 2020 |
Decision & Reasons Promulgated On 22 May 2020 |
Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
HOK (IRAQ)
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation (by written submissions only):
For the Appellant: Ms C Soltani, solicitor, of Iris Law Firm
For the Respondent: Mr S Whitwell, Senior Presenting Officer
DECISION AND REASONS
Procedure
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This appeal was due to be heard on 23 April 2020, at Kings Court in North Shields. The parties had been notified of the hearing on 6 March 2020. On 20 March 2020, however, as a result of the Covid-19 pandemic, all hearings in the Upper Tribunal (IAC) were adjourned until further notice. On 20 March 2020, directions were sent to the parties by the Vice President. Those directions indicated his provisional view that the matters which would have been determined at the hearing on 23 April 2020 might properly be determined on the basis of written submissions. In reaching that view, the Vice President indicated that he had had regard to the over-riding objective and to the need to prevent the spread of Covid-19. Both parties were invited to make written submissions on that proposal, and on the merits of the appeal itself.
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Detailed written submissions were made by the appellant’s solicitors on 30 March 2020 and by Mr Whitwell, on behalf of the respondent, on 9 April 2020. Further brief submissions were made (following a query I had raised about service of the first submissions made by the appellant) on 12 May 2020. Neither party objected to the course proposed by the Vice President.
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By rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules, the Upper Tribunal is permitted to make any decision without a hearing. In deciding whether to proceed in that way, the Upper Tribunal is required by rule 34(2) to have regard to any view expressed by a party when deciding whether to hold a hearing and the form of any such hearing.
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The provisional view expressed by the Vice President was just that: a provisional view. The decision whether to proceed without a hearing is my own, and I have considered whether it is fair and appropriate to do so. In considering that question, I have considered what was said by Lord Reed in Osborn v The Parole Board [2013] UKSC 61; [2014] 1 AC 1115, at [80]-[96] in particular.
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The dispute between the parties concerns, at this stage, whether or not the decision reached by the First-tier Tribunal is vitiated by legal error. I am obviously not invited to resolve any disputes of fact, or to consider oral evidence, whether from the appellant or any other witness. There can be no suggestion, to my mind, that either party is prejudiced if no oral hearing takes place. No such submission has been made by either party. The appellant is legally represented and both parties have made full written submissions. I am satisfied, in all the circumstances, that it is fair and appropriate to determine whether or not the First-tier Tribunal erred in law without a hearing.
Background
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The appellant is an Iraqi national of Kurdish ethnicity. He comes from Jalawla in Diyala Governorate, within Iraq’s Disputed Territories and close to the Green Line dividing Iraq and the IKR. His claim for international protection was based, in brief outline, on events which were said to have occurred in late April 2016, when the appellant attended a conference about religious extremism. The conference was at the Garmian University, at which the appellant was studying for a degree. The appellant claimed that he had made remarks at that conference which had attracted the opprobrium of some of those attending. He stated that he had been attacked and that threats had subsequently been made against him. The appellant sought temporary refuge in a nearby village whilst arrangements were made for him to flee from Iraq. He travelled into Iran using his own passport but he continued his journey to the UK clandestinely, arriving here in 2016. He was returned to France, through which he had travelled, but he returned to this country again in January 2017.
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The respondent considered the appellant’s account to be untrue. She considered that he could be returned safely to Iraq without the UK being in breach of its obligations under the Refugee Convention or the ECHR. The appellant appealed.
The Appeal to the First-tier Tribunal
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The appellant’s appeal came before First-tier Tribunal Judge Cope, sitting at North Shields, on 24 September 2019. The appellant was represented by a solicitor (not Ms Soltani), the respondent by a Presenting Officer. The judge heard oral evidence from the appellant and submissions from both representatives before reserving his decision.
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The judge’s reserved decision was issued on 22 November 2019. He did not accept the appellant’s account of events: [61]. He concluded that the appellant’s home area was no longer under control of ISIL and did not accept, in any event, that the appellant would be of any interest to that group: [71]. The appellant had access to his Civil Status Identity Document (“CSID”) because it, and his Iraqi Nationality Certificate, had been left with his parents in Jalawla: [85]. The appellant remained in contact with them and they would be able to provide the document for him: [ibid]. There was no reason to think, in the circumstances, that the appellant would be in danger between Baghdad (to which he would be returned) and his home area: [90]. The judge did not accept that the appellant was entitled to Humanitarian Protection on account of the situation in his home area: [110]. Nor did he consider the appellant’s return would be in breach of the ECHR: [114].
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Permission to appeal was refused by First-tier Tribunal Judge Grant, who considered that the judge’s credibility and other findings had been open to him as a matter of law. The appellant renewed his application to the Upper Tribunal.
The Appeal to the Upper Tribunal
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The grounds of appeal are not properly delineated into separate, particularised complaints of legal error, as required by Nixon [2014] UKUT 368 (IAC) and Harverye [2018] EWCA Civ 2848. There are seven paragraphs. The first six make various criticisms of the judge’s assessment of the appellant’s credibility. The final paragraph is in the following terms:
“The FTJ has also erred in his assessment of AAH (Iraq) [2018] UKUT 212 CG (IAC) by departing from country guidance and failing to properly assess whether the appellant can safely return to his home area or relocate to IKR in light of the facts of his case. Even if considering the most up to date information, this would suggest that the current situation in Diyala is such that it cannot be said that the appellant could not return to this area safely.”
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Permission was granted by Upper Tribunal Judge Pickup, only in relation to the safety of the appellant returning to his home area. Judge Pickup engaged at some length with the grounds which related to the judge’s assessment of the appellant’s credibility. He cited what was said by McCombe LJ at [12] of VW (Sri Lanka) [2013] EWCA Civ 522 and concluded that the judge had been entitled to reach the conclusions he had, having noted various respects in which the appellant’s account was legitimately thought to be inconsistent and implausible. In respect of the final point in the grounds, Judge Pickup said this:
“The judge gave cogent reasoning for finding that the appellant will have access to his CSID. It was also concluded that the situation in Diyala Province had changed so that it was no longer a contested area and the appellant would be able to return to Jalawla. However, given the remaining uncertainty of the security situation, and in the light of more recent case authority it is arguable that the findings on return to the home area are flawed and in addition the decision failed to address the alternative of relocation as a Kurd to the IKR. On this ground alone permission is granted.”
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As I have already noted, detailed written submissions were made by both parties in response to the directions issued by the Vice President at the end of March.
Submissions
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On behalf of the appellant, Ms Soltani submits that the Upper Tribunal should permit argument in relation to the judge’s credibility findings. At [8], she notes that the judge had accepted that the appellant had been consistent in his claims regarding the events at Garmian University but had founded his adverse finding in relation to the appellant’s account on what he perceived to be the implausibility of that account. Ms Soltani submitted that the judge had erred in so concluding, for three reasons. Firstly, she submitted that the judge’s conclusions had been inconsistent. At [36], he had stated that it would be ‘quite wrong to draw any determinative conclusion’ purely from his concern that the reaction to the appellant’s statements was implausible. Subsequently, however, that was precisely what...
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