Upper Tribunal (Immigration and asylum chamber), 2020-08-27, PA/03850/2017
| Jurisdiction | UK Non-devolved |
| Date | 27 August 2020 |
| Published date | 14 September 2020 |
| Hearing Date | 13 August 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/03850/2017 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03850/2017(V)
THE IMMIGRATION ACTS
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Heard at Cardiff Civil Justice Centre |
Decision & Reasons Promulgated |
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On 13 August 2020 Remotely |
On 27 August 2020 |
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Before
UPPER TRIBUNAL JUDGE GRUBB
Between
S M M
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms L Gardiner instructed by Migrant Legal Project
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer
DECISION AND REASONS
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Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order prohibiting the disclosure or publication of any matter likely to lead to members of the public identifying the appellant. A failure to comply with this direction could lead to Contempt of Court proceedings.
Introduction
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The appellant is a citizen of Iraq who was born on 27 March 1995. He is of Kurdish ethnicity and comes from a village called Albu Najim in the district of Daquq in Kirkuk Governorate.
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The appellant arrived in the United Kingdom on 8 October 2016 and claimed asylum. The basis of his claim was twofold. First, he claimed that he feared ISIS which had attacked his village in August 2014 causing him and his family to flee. He had been separated from his parents and he fled to Daquq where he stayed until October 2014 when he left and went to Kirkuk City where he lived with his aunt until April 2015. He then moved to Shwan. It was the events that he claimed occurred in Shwan that formed the second basis of his claim. Secondly, the appellant claimed that, whilst in Shwan, he had a relationship with a young woman who was the daughter of a tribal leader. He lived with the family and during that time, without the family’s knowledge, he formed a relationship with the tribal leader’s daughter and she became pregnant. When the family discovered their relationship, he fled. The appellant claimed that he feared that he would be subject to a “honour killing” by the family if he returned to Iraq.
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On 7 April 2017, the Secretary of State refused the appellant’s claims for asylum, humanitarian protection and on human rights grounds.
The Appeal
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The appellant appealed to the First-tier Tribunal. In July 2017, the First-tier Tribunal dismissed the appellant’s appeal. The appellant appealed to the Upper Tribunal which, in July 2018, set aside the First-tier Tribunal’s decision and remitted it to the First-tier Tribunal for a de novo rehearing. That appeal was heard by Judge Wilson on 17 October 2018. He dismissed the appellant’s appeal on all grounds.
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The appellant again appealed, with permission, to the Upper Tribunal. That appeal was heard by me on 30 May 2019. In a determination sent on 26 June 2019, I upheld Judge Wilson’s adverse credibility finding and his decision to dismiss the appellant’s appeal on asylum grounds. However, I concluded that the judge had erred in law in dismissing the appellant’s appeal on humanitarian protection grounds and in finding that Art 15(c) of the Qualification Directive (2004/83/EC) did not apply to the appellant in his home area of Kirkuk. I further concluded that the judge had erred in law in finding that the appellant could internally relocate.
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The appeal was adjourned and retained in the Upper Tribunal to remake the decision. The adjournment was in order to await the forthcoming country guidance decision in respect of Art 15(c) and Iraq which was subsequently published in December 2019: SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC) (“SMO and Others”).
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In light of the COVID-19 crisis, the Upper Tribunal invited submissions as to whether or not the appeal could be completed without a hearing. Following submissions from the parties, the Upper Tribunal directed that the appeal be listed for a remote hearing.
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Consequently, on 13 August 2020, the appeal was listed before me. The appeal took place at Cardiff Civil Justice Centre with me based in the court and Ms Gardiner, who represented the appellant, and Mr Jarvis, who represented the respondent, taking part in the hearing remotely via Skype for Business.
The Hearing
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Before me, the appeal proceeded by way of submissions only. Mr Jarvis relied upon the written submissions made prior to the hearing and Ms Gardiner relied upon her detailed skeleton argument which incorporated written submissions made prior to the hearing. Both representatives developed their arguments orally.
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The evidence consisted largely of the evidence before the First-tier Tribunal. However, in addition Ms Gardiner sought to rely upon a supplementary bundle of documents. This consists of a witness statement from the appellant dated 18 March 2020 (E1 – E2); an email from his partner, “BT” (E3); the birth certificate of their child, “A” (E4); various photographs (E5-E16). Finally, there is a psychiatric report prepared by Dr Alison Battersby dated 23 February 2020 (E18 – E47).
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Mr Jarvis did not seek to raise any objection to the admission of these documents under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 as amended). Subject that is to this point, namely his submissions in relation to their relevance under Art 8 and the appellant’s reliance upon the now claimed relationships with BT and A amounting to a “new matter” under s.85(5) and (6) of the Nationality, Immigration and Asylum Act 2002 (as amended) (the “NIA Act 2002”). I will return to this issue below.
The Issues
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The issues in the appeal were common ground between the parties.
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Has the appellant established that in his home area on return he would be exposed to an Art 15(c) risk of indiscriminate violence amounting to serious harm? If yes,
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Can the appellant reasonably and without it being unduly harsh internally relocate to (i) Kirkuk City; (ii) the IKR; or (iii) Baghdad?
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Will the appellant’s return to Iraq breach Art 8 of the ECHR (i) on the basis of his private life and para 276ADE(1)(vi) of the Immigration Rules (HC 395 as amended); or (ii) on the basis of an interference with his family life in the UK with his partner (BT) and his son (A)?
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In relation to issue 3(ii), the respondent contends that these relationships amount to a “new matter” under s.85(5) and (6) of the NIA Act 2002 which the Secretary of State does not consent to the Upper Tribunal considering.
Article 15(c)
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In Elgafaji v Staatssecretaris van Justitie (C-465/07) [2009] 2 CMLR 45, the ECJ set out what must be established for Art 15(c) to be engaged (at [43]):
“…Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.”
(See also, Diakite v Commissaire général aux réfugiés et aux apatrides (C-285/12) [2014] 1 WLR 2477 (CJEU) at [30].)
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At [39] in Elgafaji the ECJ recognised that, in applying Art 15(c), a decision-maker must apply a ‘sliding scale’:
“the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.”
(See also Diakite at [31].)
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In SMO and Others, the UT helpfully summarised the position as follows ([32]):
“The Court thereby recognised that a person may still be accorded protection even when the general level of violence is not very high if they are able to show that there are specific reasons, over and above them being mere civilians, for being affected by the indiscriminate violence. In this way the Article 15(c) inquiry is two-pronged: (a) it asks whether the level of violence is so high that there is a general risk to all civilians; (b) it asks that even if there is not such a general risk, there is a specific risk based on the “sliding-scale” notion.”
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The headnote in SMO and Others summarises the application of Art 15(c) in Iraq as follows:
“1. There continues to be an internal armed conflict in certain parts of Iraq, involving government forces, various militia and the remnants of ISIL. Following the military defeat of ISIL at the end of 2017 and the resulting reduction in levels of direct and indirect violence, however, the intensity of that conflict is not such that, as...
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