Upper Tribunal (Immigration and asylum chamber), 2020-05-14, [2020] UKUT 189 (IAC) (BH (policies/information: SoS's duties))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President, Lord Matthews |
| Status | Reported |
| Date | 14 May 2020 |
| Published date | 11 June 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | policies/information: SoS's duties |
| Hearing Date | 09 March 2020 |
| Appeal Number | [2020] UKUT 189 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
BH (policies/information: SoS’s duties) Iraq [2020] UKUT 00189 (IAC)
THE IMMIGRATION ACTS
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Heard at Parliament House, Edinburgh |
Decision & Reasons Promulgated |
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On 9 March 2020 |
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………………………………… |
Before
MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT
LORD MATTHEWS
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)
Between
BH
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr K. Forrest, Advocate, instructed by Latta & Co Solicitors
For the respondent: Mr G. McIver, instructed by the Government Legal Department
(a) The Secretary of State has a duty to reach decisions that are in accordance with her policies in the immigration field. Where there appears to be a policy that is not otherwise apparent and which may throw doubt on the Secretary of State’s case before the tribunal, she is under a duty to make a relevant policy known to the Tribunal, whether or not the policy is published and so available in the public domain. Despite their expertise, judges in the Immigration and Asylum Chambers cannot reasonably be expected to possess comprehensive knowledge of each and every policy of the Secretary of State in the immigration field.
(b) In protection appeals (and probably in other kinds of immigration appeals), the Secretary of State has a duty not to mislead, which requires her to draw attention to documents etc under her control or in the possession of another government department, which are not in the public domain, and which she knows or ought to know undermine or qualify her case.
(c) There is a clear distinction between information and policy: the fact that country information is contained in a COI (country of origin) document published by the Secretary of State does not, without more, make that information subject to the duty in sub-paragraph (a) above.
DECISION AND REASONS
A. THE APPELLANT AND HIS APPEAL TO THE FIRST-TIER TRIBUNAL
1. The appellant, born in 1977, is a citizen of Iraq. He says he left that country in November 2007, travelling to Turkey, before moving on to the United Kingdom, where he arrived on 26 November 2007 and claimed asylum the same day. The respondent refused that claim and the appellant unsuccessfully appealed to an immigration judge of the Asylum and Immigration Tribunal. Over the intervening years, the appellant made a number of further submissions, with the aim of obtaining a fresh right of appeal, in the event of their rejection by the respondent. Eventually, the submissions made in June 2018 were treated by the respondent as a fresh claim, the refusal of which led to the appellant’s appeal being heard by First-tier Tribunal Judge P A Grant-Hutchison in Glasgow on 12 September 2018.
2. Despite the fact that the Immigration Judge who dismissed the appellant’s original appeal in 2009 had doubts as to whether he originated from Mosul, the present First-tier Tribunal Judge appears, like the respondent, to have accepted that the appellant’s home area was Mosul. Since it was common ground that, at the relevant time, the appellant could not be expected to return to Mosul, the focus of attention was on whether the appellant, as a Kurd, could relocate to the Kurdish Zone in Northern Iraq (IKR); alternatively, whether he could relocate to Baghdad.
3. The First-tier Tribunal Judge had regard (as he was required to do) to the Upper Tribunal’s country guidance in AAH (Iraqi Kurds - internal relocation) Iraq (CG) [2018] UKUT 00212, promulgated on 26 June 2018. At paragraph 13 of his decision, the First-tier Tribunal Judge recorded the respondent’s Presenting Officer as telling him that, contrary to the position in AAH, there were now direct flights to the IKR from the United Kingdom. The judge, nevertheless, concluded that it was “safer to proceed on the undertaking given by the Secretary of State that individuals such as the appellant will be returned to Baghdad”. As a result, at paragraph 14, the First-tier Tribunal Judge identified the question at the heart of the appeal as: “Can the appellant return to Baghdad and thereafter proceed onward to the IKR”?
4. The First-tier Tribunal Judge rejected the appellant’s assertion that he had no male relatives who could assist his mother or sister to obtain a CSID, if such an identity document were needed. The judge also found that the appellant had spent time in the IKR before coming to the United Kingdom. This accorded with the findings of the earlier judge. The First-tier Tribunal Judge found that the appellant’s employment and accommodation prospects were “not as bleak as described in AAH, even allowing for the passage of time. In addition he will have access to the grant under the Voluntary Returns Scheme” (paragraph 15).
5. On the totality of the evidence, the First-tier Tribunal Judge concluded, at paragraph 16, that if the appellant were returned to Iraq, there was “no real risk of serious harm in terms of the humanitarian protection provisions”. At paragraph 19, the judge made the same findings in respect of Articles 2, 3 and 8 of the ECHR. So far as Article 8 was concerned, the judge had regard to paragraph 276ADE(1)(vi) of the Immigration Rules. This provides that, in order to demonstrate an Article 8 right to remain by reference to private life, a person over the age of 18 who has lived continuously in the UK for less than twenty years, needs to show that “there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK”. The First-tier Tribunal Judge held that the appellant could not satisfy this requirement, on the facts the judge had found: “Although it is likely that he will return to the IKR the appellant could also go to an area where he could avail himself of the protection of” certain Sheiks, with whom the appellant had had past interactions. The First-tier Tribunal Judge had also earlier noted the fact that the appellant had spent time in the IKR and that he was “young and healthy”.
6. In the light of these conclusions, the First-tier Tribunal Judge dismissed the appellant’s appeal on all grounds.
B. CHALLENGES TO THE FIRST-TIER TRIBUNAL’S DECISION
7. The appellant appealed to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal Judge. The grounds regrettably misrepresented the judge’s decision. They contended that, at paragraph 13, the judge had found that it would be “too harsh to expect the appellant to relocate to Baghdad on anything other than a transitory basis”. That is not what the First-tier Tribunal Judge said. In paragraph 13, the judge made it plain that he was referring to the appellant’s “home area of Mosul” in finding that “it would be too harsh to expect him to relocate there on anything other than a transitory basis”.
8. The grounds of application also contended that the First-tier Tribunal Judge had failed to find how long the appellant would have to reside in Baghdad; that the appellant would be relocating as an IDP to the IKR; and that there were no reasons given for the finding that the appellant could not satisfy paragraph 276ADE(1)(vi) of the Immigration Rules.
9. None of these grounds found favour with First-tier Tribunal Judge Feeney, who refused permission to appeal on 6 March 2019.
10. The appellant then applied to the Upper Tribunal for permission to appeal. The grounds of application were drafted by Mr Caskie. They took a very different approach to the grounds put to the First-tier Tribunal.
11. Ground 2 of the new grounds reads as follows:-
“2. It was the responsibility of the Home Office Presenting Officer to lodge any relevant policy document with the judge. At the date of the hearing the most up-to-date information in respect of the KRG [ie. The IKR] was contained in the Secretary of State’s Humanitarian Protection Country Report of November 2018. It is within the context of that report that the guidance in AAH requires to be considered. The judge failed to do so and in so failing erred in law”.
12. The document to which the grounds refer is misdescribed. What is meant is the “Country Policy and Information Note Iraq: Security and humanitarian situation Version 5.0 November 2018”. The grounds were also wrong in asserting that this document was the most up-to-date information available at the date of the hearing before the First-tier Tribunal Judge. That hearing took place on 12 September 2018, weeks before Version 5.0 appeared.
13. The new grounds then embarked upon a detailed exegesis of the Country Policy and Information Note. Amongst other things, they observed that in a table at paragraph 3.1.2, the population of the IKR was estimated at around 5,300,000. This was said to compare with an estimate of approximately 4,000,000 in March 2017. From this, it was submitted that there would be “a significant obstacle to the appellant’s integration”.
14. The new grounds did not find favour with Upper Tribunal Judge Kekić who, on 10 April 2019, refused permission to appeal. She said:-
“The grounds are not made out. The judge cannot be criticised for failing to make...
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