Upper Tribunal (Immigration and asylum chamber), 2021-06-08, PA/02081/2020
| Jurisdiction | UK Non-devolved |
| Date | 08 June 2021 |
| Published date | 23 June 2021 |
| Hearing Date | 29 April 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/02081/2020 |
Appeal Number: PA/02081/2020
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/02081/2020
THE IMMIGRATION ACTS
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Heard remotely at Field House |
Decision & Reasons Promulgated |
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On 29 April 2021 via Skype for Business |
On 8 June 2021 |
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Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
MN (Iraq)
(ANONYMITY DIRECTION made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms L. Brakaj, Iris Law Firm (Middlesbrough)
For the Respondent: Ms J. Isherwood, Senior Home Office Presenting Officer
DECISION AND REASONS (V)
This has been a remote hearing which has been consented to / not objected to by the parties. The form of remote hearing was V (video). A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
The documents that I was referred to were primarily the decision of the First-tier Tribunal, the grounds of appeal, and the bundles relied upon by the parties before the First-tier Tribunal, the contents of which I have recorded.
The order made is described at the end of these reasons.
The parties said this about the process: they were content that the proceedings had been conducted fairly in their remote form.
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This is an appeal against a decision of First-tier Tribunal Judge Fisher promulgated on 11 August 2020 dismissing the appeal of the appellant, a Kurdish citizen of Iraq born in 2002, against a decision of the respondent dated 18 February 2020 to refuse his claim for asylum made on 23 September 2019.
Factual background
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The appellant arrived in this country as an unaccompanied minor. He claimed asylum on the basis that he would be the victim of a blood feud in Iraq and that he feared ISIS. He also contended that upon his return he would without the documents that are essential to avoid being subject to treatment that would be contrary to Article 3 of the European Convention on Human Rights (“the ECHR”). The judge rejected the appellant’s claim to be at risk on account of the blood feud and from ISIS, and there has been no challenge to those findings.
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At [23] of his decision, the judge addressed the appellant’s likely circumstances in Iraq upon his return. The judge reached various findings of fact relating to the appellant’s ongoing contact with his family. He rejected the appellant’s claim to have travelled with a mobile phone but without a SIM card, on the basis that it would not be possible to use such a device without one. He found that the appellant held a telephone number for his uncle in Iraq, who had paid $15,000 to an agent to facilitate his journey to the United Kingdom. As to the appellant’s ability to obtain the documentation that is necessary to engage with life in Iraq and make the journey from Baghdad to the Kurdish region following an enforced return, the judge said this, at [23]:
“The [Upper Tribunal in SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC)] found that, notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi consular facilities. It concluded that there would only be a small number of cases in which an individual could plausibly claim to have no means of contacting family members from whom the relevant volume and page number [of the Family Book; an Iraqi register of persons essential for acquiring identity documents] could be obtained and traced back. The appellant was not particularly young when he left the country. Relevant details would have been shown on his birth certificate or the passport which had recently been acquired for him. If he is not already in possession of the documents which would enable him to return to the [Kurdish region], I am satisfied that he could obtain them from his family or they could provide him with the details which would enable him to obtain replacements from the Iraqi consulate in the UK.” (Emphasis added)
An “INID” as referred to by the judge means an “Iraqi National Identity Card” which, as described by this tribunal in SMO, is a document which replaces a CSID. I refer to the judge’s finding that the appellant could obtain a CSID from within the UK as “the impugned CSID findings”.
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The judge dismissed the appeal on asylum, humanitarian protection and human rights grounds.
Permission to appeal
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Permission to appeal was granted by Upper Tribunal Judge McWilliam on the basis it was arguable that the judge erred by not having regard to the respondent’s country policy and information note Iraq: Internal relocation, civil documentation and returns, version 11.0, June 2020 (“the CPIN”), which appears at paragraph 2.6.16 to suggest that, contrary to the judge’s conclusion, the Secretary of State now accepts that it is not possible to obtain CSID documents from within this country.
Submissions
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In her oral submissions and in her undated skeleton argument, Ms Brakaj relies upon SMO (Iraq) to demonstrate that the appellant’s enforced return would be to Baghdad, thereby necessitating a lengthy internal journey by road. It is common ground that under the current country guidance if the journey is made without a CSID or INID, the individual concerned faces a real risk of substantial harm contrary to Article 3 of the ECHR. Thus the judge’s finding that the appellant would be able to obtain a CSID from within this country was pivotal to the appeal being dismissed, submits Ms Brakaj. Against that background, Ms Brakaj submits that it was an error for the judge not to consider the passage of the CPIN set out below, even though it had not been relied upon by her firm, Iris Law Firm, at the hearing before the First-tier Tribunal. The CPIN was before the judge, as part of a bundle of approximately 1,000 pages, but his attention was not drawn to the paragraphs concerning this issue.
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Paragraphs 2.6.15 and 2.6.16 of the CPIN address post-SMO developments of which the Secretary of State is aware concerning the apparent reduced ability to obtain a CSID from within the United Kingdom. Referring to information provided by the ‘Returns Logistics Department’ within the Home Office located at Annex I to the CPIN, those paragraphs read as follows, with emphasis added:
“2.6.15 Since SMO was promulgated in December 2019 further information regarding the issuance of CSIDs in the UK has been obtained by the Home Office in April 2020 [see Annex I]. When asked to describe the process of obtaining a CSID from the Iraqi Embassy in London the Returns Logistics department stated:
‘CSID cards are being phased out and replaced by INID (Iraq National Identification) cards. It is not currently possible to apply for an INID card outside of Iraq. As a result, the Iraqi embassy in London are advising their nationals in the UK to apply instead for a ‘Registration Document (1957) which they can use to apply for other documents such as passports or an INID card once they have returned to Iraq.
‘The registration document (1957) must be applied for on the applicant’s behalf by a nominated representative in Iraq. In order to start the application, the individual requiring documentation would normally provide at least one copy of a national identity document… and complete a power of attorney (to nominate a representative in Iraq) at the Iraqi embassy along with the embassy issued application forms. If they have no copies of identity documents they also would need to complete a British power of attorney validated by the [Foreign and Commonwealth Office] and provide parents names, place and date of birth to their nominated representative in Iraq.
‘Once issued the nominated representative will send the registration document (1957) to the applicant in the UK. The process takes 1-2 months.
‘The [Home Office] cannot apply for documentation other than Laissez Passers on someone’s behalf but the embassy is willing to check to see if the individual already holds documents and provide copies if necessary.’
2.6.16 Based on the above information, it is highly unlikely that an individual would be able to obtain a CSID from the Iraqi Embassy while in the UK. Instead a person would need to apply for a registration document (1957) and would then apply for an INID upon return to their local CSA office in Iraq.”
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The judge’s conclusion that the appellant could obtain a CSID from within the UK is at odds with the respondent’s accepted and public position that obtaining a CSID is not possible from within the UK, submits Ms Brakaj.
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Although not part of the appellant’s grounds of appeal, Ms Brakaj additionally criticises the judge’s findings that the appellant must have had a SIM card in his smartphone, for without one, he would not have been able to access the internet. That finding, submits Ms Brakaj, was instrumental in the judge’s broader reasoning concerning the appellant’s ability to contact his family in Iraq. Ms Brakaj applied under rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to admit evidence demonstrating that smartphones can be used to access the internet through a wifi connection, and do not need a SIM card to do so.
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