Upper Tribunal (Immigration and asylum chamber), 2023-09-25, UI-2022-002164
| Appeal Number | UI-2022-002164 |
| Hearing Date | 31 August 2023 |
| Date | 25 September 2023 |
| Published date | 11 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-002164 [PA/01377/2021]
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-002164 |
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First-tier Tribunal No: PA/01377/2021 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 25 September 2023
Before
UPPER TRIBUNAL JUDGE SMITH
Between
A B
(ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Solomon, instructed by UK & EU Immigration Law Services
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer
Heard at Field House on Thursday 31 August 2023
Order Regarding Anonymity
Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.
DECISION AND DIRECTIONS
BACKGROUND
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By a decision issued on 19 April 2023, the Tribunal (myself and Deputy Upper Tribunal Judge Grimes) found an error of law in the decision of First-tier Tribunal Judge F E Robinson dated 31 March 2022 dismissing the Appellant’s appeal against the Respondent’s decision dated 7 July 2021 refusing his protection and human rights claims for a second time. The error of law decision is appended hereto for ease of reference.
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The Appellant had previously unsuccessfully appealed an earlier refusal of his asylum claim. The decision on that occasion (of First-tier Tribunal Judge Bircher promulgated on 24 July 2017) (“the 2017 Appeal Decision”) forms the starting point in this second appeal.
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The Appellant is accepted to be a national of Iran. The Respondent concedes that he cannot be returned to that country as he would be at risk of ill-treatment there. However, the Appellant lived with his family in the Kurdish area of Iraq (“IKR”) since he was seven years old. He came from there to the UK. Although the Appellant says that he has lost contact with his family (mother, father and brother), his family remained in the IKR when he came to the UK. The Respondent intends to remove the Appellant to Iraq/the IKR.
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The Appellant claims to be at risk on return to Iraq because of his sur place activities criticising the Kurdish Regional Government (“KRG”). He also claims that he could not be returned to Iraq due to a lack of documentation. He also says that he is not a national of Iraq and was able to remain there in the past only on a temporary basis.
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In the error of law decision, the Tribunal concluded that the First-tier Tribunal Judge had erred by failing to consider the issue whether the Appellant is also an Iraqi national and, if he is not, the impact of that finding on the Respondent’s ability to remove him to the IKR. We declined the Respondent’s invitation to preserve the findings (which were adverse to the Appellant) in relation to the Appellant’s sur place activities. As we indicated, the Tribunal has to reconsider all issues in the appeal on protection and human rights grounds at date of hearing. We did however preserve the findings that the Appellant’s claim to be at risk because his father is a member of the Peshmerga and/or that he is in fear of the father of a woman with whom he claimed to have a sexual relationship (HS) were not credible. I do not therefore need to deal with those issues.
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On this occasion, I had before me the Respondent’s and Appellant’s bundles as before the First-tier Tribunal ([RB/xx] and [AB/xx]) respectively). I also had a further bundle filed by the Appellant ([ABS/xx]) and an expert report of Dr Kaveh Ghobadi dated 10 June 2023 (“the Expert Report”). Mr Solomon filed an updated skeleton argument for the hearing. Mr Wain apologised that the Respondent had failed to file a skeleton argument in compliance with the earlier directions. He made his submissions orally without objection from Mr Solomon.
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Having heard oral evidence from the Appellant via a Kurdish Sorani interpreter and following submissions from Mr Wain and Mr Solomon, I indicated that I intended to reserve my decision and issue that in writing which I now turn to do.
THE ISSUES AND THE LAW
Nationality
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I begin with the nationality issue. As indicated above, and as set out at [12] of the error of law decision, the Appellant meets the definition of a refugee viz-a-viz Iran as a result of the Respondent’s concession.
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The Appellant’s case is that his appeal therefore succeeds on protection grounds unless I am satisfied that he is also a national of Iraq. It is accepted that if the Appellant is a dual national, he could only meet the definition of a refugee if he is able to show that he is at risk on return to both countries.
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The Respondent’s position is that she can return the Appellant to Iraq whether he is a national of that country or not. She says that she can do so provided there is no risk on return to that country and provided that he could otherwise continue to live in that country. She says that is because the Appellant was habitually resident in Iraq prior to coming to the UK (for many years).
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Mr Solomon relied on the case of Starred VD (Nationality, Country of Habitual Residence, TRNC) Cyprus [2001] UKIAT 00002 (“VD”). I accept that VD is authority for the proposition that, in relation to the definition of a refugee under Article 1A of the Refugee Convention, country of habitual residence is only relevant to that definition if an individual is otherwise stateless. It would not apply in the Appellant’s case.
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Mr Solomon did not take me to VD during his submissions. He perhaps should have done so because otherwise the case is not of assistance to the Appellant’s case in this regard. At [42] to [44] of the decision, the Tribunal said this:
“42. An appeal under section 8 of the 1993 Act (or section 69 of the 1999 Act) is not an appeal against the refusal of asylum. It is an appeal against the immigration decision, the grounds of appeal being that the appellant's removal or expulsion would breach the Convention. If (but only if) the appellant is a refugee, he is protected from removal or expulsion by Articles 32 and 33. Article 32 imposes a general prohibition on the Contracting States' expulsion of a refugee 'lawfully in their territory'. As the prohibition is general, destination is irrelevant under this Article. The restriction of its application to those lawfully in the country of reception, however, means that this article only applies to those appealing under section 8 (2) of the 1993 Act (or section 69 (2) or (3) of the 1999 Act). That is the effect, in this context, of the decision of the House of Lords in In re Musisi [1987] Imm AR 250: see the speech of Lord Bridge at 258.
43. Where the appeal is under any of the other subsections of the relevant Acts, the removal or expulsion even of a refugee is not prohibited by the Convention. In such cases the appellant is protected only by Article 33. As interpreted, broadly speaking, that Article prohibits return to a place where the individual would either be at risk of persecution for a Convention reason or would be at risk of being expelled from there to a place where he would be at such risk.
44. In English law, the possible destinations for a person who is to be removed from the United Kingdom are restricted by the 1971 Act. For those refused leave to enter, or declared to be illegal entrants, the provisions are in paragraph 8(1)(c) of Schedule 2 to the act. For those being deported, the provisions are in paragraph 1 of Schedule 3. In each case removal may be to 'a country or territory to which there is reason to believe that he will be admitted'. Thus, a person being removed from (or being required to leave) the United Kingdom will not necessarily be returned to his country of nationality.”
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I accept of course that rights of appeal have changed several times since VD. However, those changes do not affect what is said at [42] to [44] of VD. Although the decision under appeal is now the refusal of a protection claim rather than an appeal against an immigration decision, the grounds of appeal remain the same. They are that removal would breach the Refugee Convention (section 84, Nationality, Immigration and Asylum Act 2002 – my emphasis). Mr Wain made brief reference to this but did not develop the submission. However, I accept that he was correct in his reference to that section.
Accordingly, the issue is not whether the Appellant falls within the definition of a refugee. He is a refugee viz-a-viz Iran. If he is also a national of Iraq, he may also fall within that definition if he is at risk in Iraq for a Convention reason. However, it is Article 33 of the Refugee Convention which is mainly relevant to my determination. That issue requires me to determine, in broad terms, whether the Appellant can be returned to Iraq, whether he is at risk there and whether he would be able to continue to live there without any...
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