Upper Tribunal (Immigration and asylum chamber), 2021-11-15, LP/00028/2020
| Jurisdiction | UK Non-devolved |
| Date | 15 November 2021 |
| Published date | 01 December 2021 |
| Hearing Date | 20 August 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | LP/00028/2020 |
Appeal Numbers: LP/00028/2020
[PA/50128/2019]
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Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: LP/00028/2020 [PA/50128/2019] |
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 2 June and 20 August 2021 |
On 15 November 2021 |
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Before
UPPER TRIBUNAL JUDGE BLUNDELL
Between
SA (Iraq)
(ANONYMITY DIRECTION made)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr D Bazini and Mr C Holmes, both of Counsel, instructed by Parker, Rhodes Hickmott Solicitors
For the Respondent: Mr T Lindsay, Senior Presenting Officer
DECISION AND REASONS
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The appellant is an Iraqi national who was born on 9 January 1982. He appeals, with permission granted by me, against First-tier Tribunal Judge Kelly’s decision to dismiss his appeal against the respondent’s refusal of his application for international protection.
A. BACKGROUND
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The appellant entered the United Kingdom unlawfully in January 2017 and claimed asylum. He stated that he was originally from Kirkuk but that he had subsequently relocated to Ranya, which is within the Independent Kurdish Region (“IKR”). He had transferred his civil registration there when he married his wife. The appellant based his claim for asylum on his actual or imputed political opinion. He stated that he was a Kurd and a supporter of the Gorran Change Movement. He had a factory where he made UPVC and aluminium windows and he had shown his support for the party by hanging banners outside his shop. He had spoken out against the Patriotic Union for Kurdistan and the Kurdish Democratic Party during a television interview in 2015 and he thought that he had been placed under surveillance as a result. In 2016, he objected to a mosque being built next to his premises and the Imam began to speak out against him, stating that he was a non-believer. Matters were said by the appellant to have spiralled out of control at this point. The appellant’s premises caught fire and he went to the police to claim that he had been the victim of arson. The appellant was arrested the next day, however, and held for a week because a complaint had been made against him. The following year, he hear the Imam speaking disparagingly about him, in response to which he stole 150 books (including copies of the Qu’ran) from the mosque and set fire to them. His friend told him that he was wanted by the police and he fled the country.
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The respondent did not believe the appellant’s account and did not accept that he would be at risk on return to Iraq. She did not consider that his return would place her in breach of her international obligations. I will return at a later stage in this decision to the reasons given in support of the latter conclusion.
B. THE PROCEEDINGS BELOW
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The appellant appealed to the First-tier Tribunal (“FtT”). The appeal was heard by Judge Kelly (“the judge”), sitting at Bradford on 19 March 2020. The appellant was represented by Mr Holmes, the respondent by a Presenting Officer.
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The judge accepted that the core events described by the appellant were reasonably likely to be true. He accepted, therefore, that he had broadcast an interview on the GCM’s channel and that there had been a fire at the appellant’s commercial premises. He also accepted that the appellant had been arrested and released on bail and that he had then stolen and destroyed a number of books from the mosque. The judge did not accept the conclusions which the appellant himself had drawn from those facts, however.
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The judge considered there to be no risk to the appellant from his activities on behalf of the GCM. He specifically rejected the appellant’s claim that he would be ‘vanished’ as a result of those activities. The judge also noted that the appellant had not claimed to have been ill-treated by the police when he was arrested, and concluded that there was nothing to show that his punishment for stealing and burning books from the mosque would be disproportionate.
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The judge then turned to the appellant’s claim that he would be in difficulty upon return to Iraq because he did not have a Civil Status Identity Card (“CSID”). He resolved that argument against the appellant in the antepenultimate paragraph of his decision. Given the focus of this appeal to the Upper Tribunal, it is necessary to reproduce that paragraph in full:
[40] The third limb of the appellant’s claim is that he would be at risk of destitution on return due to his lack of a CSID together with the obstacles in the way of him obtaining a replacement. This claim is largely based on what I consider to be the false premise of the appellant being required to return to his place of birth (Kirkuk), which is sill arguably a contested area, in order to obtain a replacement CSID. However, the appellant made it very clear in his Asylum interview that he not only relocated to Ranya upon his return to Iraq in 2005 (…) but that his CSID details are now registered at the relevant office in Ranya rather than Kirkuk (…) Mr Holmes’ submission in this regard were also based upon the appellant being returned to Iraq via Baghdad airport, with what he argued were the resultant insuperable obstacles to him thereafter travelling to and obtaining a replacement CSID from the office in Kirkuk. In this Mr Holmes assumed that the appellant would not voluntarily return to Iraq and would accordingly be forcibly returned via Baghdad airport. However, given that the appellant is by his own admission a registered resident of the IKR and thus able to return voluntarily via Erbil, and difficulties arising from his forcible return via Baghdad airport would be entirely of his own making. I am accordingly unwilling to assess the risk on return by reference to problems that the appellant could so easily avoid. It is moreover his case that the IKR authorities are in possession of his original CSID, and there is no obvious reason why they should not return it to him once he has surrendered to them for prosecution under the due process of law for his admitted crimes.
C. THE APPEAL TO THE UPPER TRIBUNAL
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Permission to appeal was refused by the First-tier Tribunal. The application was renewed to the Upper Tribunal. There were two grounds. The first related to the judge’s findings of fact, the second to the correctness of his approach in [40], as above. I granted permission to appeal on only the second ground, holding that the judge had been entitled to reach his primary findings of fact for the reasons he had given. The second ground raised a point which I summarised in the grant of permission as follows:
Where an individual would be at risk if forcibly returned to a part of his country of nationality, is it a valid answer to a protection claim that he might nevertheless avoid any such risk by returning voluntarily to another part of that country, even where he does not wish to do so?
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I subsequently directed that the parties should file and serve skeleton arguments in advance of the remote hearing. I noted that the point was potentially of wider importance.
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At the first hearing before me, on 2 June 2021, the respondent had not complied with that direction but there was a skeleton argument from Mr Holmes of counsel, who at that stage represented the appellant by himself. Both advocates urged me to hear argument despite the respondent’s failure to comply with directions and I did so. I reserved my decision at the end of that hearing.
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I sought to prepare a decision shortly after the first hearing but I considered, on reflection, that I had not been addressed on a number of matters which were potentially of significance to my decision. On 22 June 2021, therefore, I issued further directions in which I indicated to the parties that I would benefit from additional argument on the following matters:
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The word ‘removal’ in each of the three grounds of appeal available to the appellant in s84(1) of the Nationality, Immigration and Asylum Act 2002;
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The amendments made to the 2002 Act by the Immigration Act 2014 when considering the authorities cited thus far by both parties;
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The intention of the respondent, as expressed in the ‘Next Steps’ section of the letter of refusal;
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MA (Somalia) v SSHD [2009] EWCA Civ 4; [2009] Imm AR 413 and J1 v SSHD [2013] EWCA Civ 279;
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The relevant provisions of the Qualification Directive; and
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The authorities of the CJEU and the ECtHR, including AAM v Sweden (Application no. 68519/10) and DNM v Sweden (Application no. 28379/11).
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The appellant then filed a further skeleton argument. The respondent also filed a skeleton argument addressing these points. Mr Bazini was instructed to lead Mr Holmes and a helpful bundle of authorities was prepared. The hearing reconvened before me on 20 August 2021. It was agreed between the advocates that the fairest course, given the scope of the argument and in light of Mr Bazini’s absence from the first hearing, was to start afresh. I heard submissions from Mr Bazini and Mr Lindsay and I express my gratitude at the outset...
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