Upper Tribunal (Immigration and asylum chamber), 2020-08-10, PA/01958/2019
| Jurisdiction | UK Non-devolved |
| Date | 10 August 2020 |
| Published date | 25 August 2020 |
| Hearing Date | 31 July 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/01958/2019 |
Appeal Number: PA/01958/2019
Upper Tier Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/01958/2019
THE IMMIGRATION ACTS
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Heard at Bradford |
Decision & Reasons Promulgated |
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On 31 July 2020 |
On 10 August 2020 |
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Before
Upper Tribunal Judge Pickup
Between
ZR
[Anonymity direction made]
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the appellant: In person, not represented
For the respondent: Mr Diwnycz, Senior Home Office Presenting Officer
DECISION AND REASONS
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269), I make an anonymity direction. 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 or any member of his family.
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This is the appellant’s appeal against the decision of First-tier Tribunal Judge Ali promulgated 23.9.19, dismissing his appeal on all grounds against the decision of the Secretary of State, dated 14.2.19 to refuse his claim for international protection.
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First-tier Tribunal Judge Keane granted permission to appeal on 7.11.19.
Error of Law
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In the first instance I have to determine whether or not there was an error of law in the making of the decision of the First-tier Tribunal such that it should be set aside. This is not a remaking of the decision; the Upper Tribunal can only intervene at this stage if it is demonstrated that there is an error of law in the decision which was material to the outcome of the appeal.
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The appellant is an Iraqi Kurd from Sulaymaniyah in the IKR. It was confirmed at the First-tier Tribunal that he has retained his CSID and identity documents necessary to return to Iraq. He entered the UK clandestinely in September 2016, accompanied by his wife and three children, whose ages at the date of the First-tier Tribunal appeal hearing were 5, 11, and 13, and immediately sought international protection.
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The protection claim was based on both alleged Christian conversion of both the appellant and his wife, and on the basis of a threat to his life in Iraq. His factual claim was that he had been threatened by T, a member of ISIS, who kidnapped his nephew in order to extort money from the appellant. T was caught and sentenced to hang, as a result of which it is claimed that the appellant was put under pressure to have T released. It is asserted that his father was threatened, his own life threatened, he was shot at, and there was an attempt to abduct his children from school. In consequence, the appellant and his family fled Iraq in July 2015, making their way though Turkey and spending a considerable period in Germany, where he claims to have been converted to Christianity and baptised. They entered the UK together clandestinely in September 2016, whereupon he claimed international protection. It is claimed that his wife was converted to Christianity and baptised in the UK in December 2016.
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The First-tier Tribunal Judge rejected the appellant’s core factual claim of events in Iraq, finding the account not credible for the reasons set out in the decision. The judge also found the claimed Christian conversions not credible and/or not genuine. At [57] of the decision the judge considered the best interests of the three children, taking into account school reports, but concluded their best interests would be to return to Iraq with their parents. At [58] the judge summarised the findings that the appellant would not be at risk on return to Iraq, that there was a sufficiency of protection, and that he could internally relocate within the IKR. Obviously, the last two findings were in the alternative as the protection grounds were rejected for the reasons set out in the decision between [37] and [44] of the decision, and the claimed conversion rejected for the reasons set out between [45] and [51]. The appeal was, therefore, dismissed on all grounds.
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The grounds of application for permission to appeal submitted that the First-tier Tribunal erred in (i) failing to give any or any adequate consideration to the human rights grounds pleaded in the grounds attached to the Notice of Appeal; and (ii) failed to give any or any due regard to the court’s duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of the children, and in particular to consider the impact of removal on the appellant’s school-aged children.
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In granting permission to appeal to the Upper Tribunal, Judge Keane considered both grounds at least arguable. The judge granting permission may have been under the misapprehension that the appellant would be returning to Iraq without his family.
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It should be noted that the appellant has not appealed the findings of the First-tier Tribunal rejecting his core factual claim, or the dismissal of the appeal on asylum and humanitarian protection grounds. Neither is the decision challenged on articles 2 and 3 ECHR grounds. Whilst humanitarian protection is referred to in the briefest terms in the grounds of application for permission to appeal, that ground is not particularised or developed further. The sole ground relied on is that of human rights.
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The appeal was first listed before Upper Tribunal Judge Hemmingway at Bradford on 10.1.20. However, the judge was surprised to find the appellant unrepresented and in the absence of an interpreter considered that he was unable to represent himself. The matter was adjourned with directions for the Tribunal to provide a Kurdish Sorani interpreter.
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The matter was then listed for hearing on 8.4.20, a date which had to be vacated because of the COVID-19 pandemic. The matter was then considered by an Upper Tribunal Judge, who concluded that the case was not suitable for a remote (video) hearing as the unrepresented appellant would be unlikely to be able to participate effectively in such a hearing. Thus the matter was listed before me for a face-to-face hearing at Bradford.
The Human Rights Grounds of Appeal
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It is not entirely clear to what extent and on what human rights basis the appellant’s appeal was pursued before the First-tier Tribunal, other than the best interests of the children. In regard to human rights generally, the grounds of appeal to the First-tier Tribunal were generic and unparticularised. However, it was asserted that the removal of the appellant to Iraq would be unlawful under Section 55 of the Borders, Citizenship and Immigration Act 2009 “as it would be incompatible with the best interests of his children.” There was a passing reference suggesting that removal of the appellant to Iraq would expose him to treatment that would breach articles 2 and 3 ECHR. However, that last issue was not pursued at the First-tier Tribunal appeal hearing beyond the factual basis of the protection claim, and it has not been pursued in the onward appeal.
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The First-tier Tribunal had the benefit of the 486-page appellant’s bundle, which comprised a few witness statements, a letter relating to the appellant’s wife’s voluntary service, and a large quantity of objective information on Iraq, together with the then-applicable Country Guidance case law. There was also a small supplementary bundle. In addition, it appears from my examination of the case file that the Tribunal was handed copies of letter detailing the school attendance and progress relating to the three children, a 2013 article from ‘The Student Lawyer’ entitled The ‘Best Interests’ of a child in Immigration Decisions’, and a copy of the Upper Tribunal’s decision in MT and ET [2018] which dealt in part with the best interests of children. I have considered all of these documents.
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The appellant was represented before the First-tier Tribunal by counsel, Mr D Hewitt, whose skeleton argument dated 30.7.19 (the day of the hearing) was handed in. The skeleton argument was primarily focused on the protection claim. However, the best interests of the appellant’s children was addressed, but only in limited terms as follows: “Further or alternatively, the Tribunal could be minded to allow the appeal based on Human Rights Grounds/based on what is in the best interests of A’s three children (names and ages given).” Reliance was placed on Section 55 of the Borders, Citizenship and Immigration Act 2009 and the need to safeguard and promote the welfare of children who are in the UK. EV (Philippines) [2014] EWCA Civ 874 was also referred to, including the factors to be considered in deciding what is in the best interests of children.
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The First-tier Tribunal Judge’s typed Record of Proceedings (ROP) reveals that at the outset of the hearing the judge clarified with the two representatives the issues to be resolved in the appeal were: “Credibility, Return to the HO, Sufficiency of Protection and IR,”the last being a reference to Internal Relocation. Mr Hewitt’s closing submissions were also recorded in summary form. In relation to submissions on human rights the judge noted only this of Mr Hewitt’s submissions: “Best interests of 3 children not young...
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