Upper Tribunal (Immigration and asylum chamber), 2023-10-01, UI-2022-006292
| Appeal Number | UI-2022-006292 |
| Hearing Date | 17 July 2023 |
| Date | 01 October 2023 |
| Published date | 17 October 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2022-006292
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2022-006292 |
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First-tier Tribunal No: PA/51704/2020 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 1 October 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
Between
Mr Hawkar Muhammed
(ANONYMITY order revoked)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr S. Khan, Counsel instructed by Rashid and Rashid Solicitors
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer
Heard at Field House on 17 July 2023
DECISION AND REASONS
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The appellant is a citizen of Iraq. He was born in 1993 and arrived in the United Kingdom as an unaccompanied asylum-seeking child in 2007 aged 14. The appellant presently faces deportation following his conviction and subsequent sentence of 26 months’ imprisonment for the evasion of duty arising from selling counterfeit cigarettes. By a decision dated 13 June 2020, the Secretary of State refused a human rights and protection claim made by the appellant, against which the appellant now appeals to this tribunal.
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The central issues in these proceedings are:
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Whether appellant will face Article 3 mistreatment upon his return to Iraq on account of not holding the correct civil status identity documentation, namely a Civil Status Identity Card (“CSID”) or an Immigration and Nationality Identity Card (“INID”)?
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Whether the public interest requires the appellant’s deportation, in light of the public interest considerations in section 117C of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”)?
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This appeal was originally heard by First-tier Tribunal Judge Farrelly (“Judge Farrelly”) under section 82(1) of the 2002 Act. Judge Farrelly dismissed the appeal on protection grounds and allowed the appeal on human rights grounds. By a decision promulgated on 22 May 2023, I allowed the Secretary of State’s appeal against Judge Farrelly’s decision to allow the appeal on human rights grounds (“the Error of Law decision”; see the Annex), set the decision aside, and directed that the decision would be remade in the Upper Tribunal, acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The appellant did not cross-appeal against the protection claim findings reached by Judge Farrelly, which I preserved. The sole issues for redetermination are those set out above.
Anonymity
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Judge Farrelly made an order for the appellant’s anonymity. At paragraph 42 of the Error of Law decision, I indicated that I was minded to revoke the order on the basis that it was not necessary to maintain it. The parties were neutral at the resumed hearing in relation to this issue. I see no reason for the appellant to enjoy anonymity. I therefore revoke the order.
The appellant’s case
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The full factual background (including the appellant’s asylum and immigration history) is set out in the Error of Law decision.
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The appellant’s case is that his deportation would be contrary to Articles 3 and 8 of the European Convention on Human Rights. He claims that having arrived in the UK as an unaccompanied child in 2007, he does not have a CSID document, nor any way of obtaining one. Accordingly he will be at risk of Article 3 mistreatment upon his return to Iraq, in particular on the journey from Baghdad, to where he will be returned (see para. 138 of the refusal letter), to the Iraqi Kurdistan Region (“the IKR”). His father is dead, and he is no longer in contact with his mother or uncle, with whom the appellant was found by First-tier Tribunal Judge A. D. Baker (“Judge Baker”) in a decision promulgated on 20 September 2010 to be in contact with. His deportation would be disproportionate.
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The respondent takes the opposite view on both issues, contending that the appellant has not demonstrated that he is at real risk of being unable to secure the appropriate internal documentation in Iraq, and that his deportation would be in the public interest.
Applicable law
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The statutory ground of appeal is that the appellant’s removal to Iraq would be unlawful under section 6 of the Human Rights Act 1998.
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In relation to Article 3 ECHR (cruel, inhuman and degrading treatment), the appellant relies on the guidance contained in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC). Para. 11 of the headnote states it is necessary to possess a CSID or INID in order to live and travel in Iraq without encountering Article 3 mistreatment. The headnote also sets out considerations relevant to whether an undocumented prospective returnee would be able to obtain a replacement CSID from within the UK.
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In relation to Article 8 ECHR (private and family life), section 117C of the 2002 Act contains a number of statutory considerations relevant to the public interest in the deportation of “foreign criminals” (see section 117D(2)). Relevant for present purposes is section 117C(6), which provides that the public interest does not require the deportation of a foreign criminal where there are “very compelling circumstances” over and above two statutory exceptions to deportation, contained in section 117C(4) and (5), concerning an individual’s private and family life respectively. Further details are summarised at paras 30 and 31 of the Error of Law decision.
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It is for the appellant to prove to the lower standard (“real risk”) that he would be at risk of Article 3 mistreatment upon his return to Iraq. In relation to Article 8, it was common ground that the appellant’s deportation to Iraq would engage his rights under Article 8 (1) ECHR, and it was therefore for the respondent to prove that any interference with those rights arising from his removal would be proportionate under Article 8(2). In practice, it is for the appellant to prove that the exceptions to his deportation under section 117 C of the 2002 Act are engaged, or that there are very compelling circumstances over and above the exceptions, to the balance of probabilities standard.
The hearing
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The resumed hearing took place on a face to face basis at Field House. The appellant did not apply to rely on further evidence save for a printout of his GP Records, which I admitted.
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The appellant, who was represented by counsel, did not give evidence. He did not give evidence before Judge Farrelly, primarily in reliance upon a report by Dr Asmathulla Hameed, a consultant psychiatrist, dated 16 August 2021 (“the Hameed report”). The report summarises the mental health conditions experienced by the appellant, including the enduring impact upon him of being attacked in 2009, and what he claimed to be the trauma arising from the events in Iraq from which he had claimed to have fled. The relevant para. states:
“7.28 In my professional opinion, Mr Muhammad is not fit to give oral evidence in court. The court should bear in mind that Mr Muhammad might become distressed by the experience under questioning to the extent that the accuracy of his testimony may be affected by his current psychological state of mind. The cross questioning can make his past experiences fresh and this could be detrimental to his mental health.”
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In the error of law decision, I observed at para. 41 that my preliminary view was that there was no (contemporary) medical evidence suggesting that the appellant lacked the capacity to give evidence before the First-tier Tribunal, and that the Upper Tribunal would be able to make any reasonable adjustments necessary to facilitate him giving evidence as required. As I observed to Mr Khan at the resumed hearing, the Hameed report was almost two years old. There was no contemporary evidence. The concerns of Dr Hameed related primarily to the appellant’s prospective distress arising from the experience of having to give evidence and be cross-examined, rather than his ability to understand and engage with the proceedings. To the extent the appellant would experience some distress from that process, I explained, the Upper Tribunal would be able to make any reasonable adjustments required to facilitate his evidence and ensure that the experience was as harmonious as possible, consistent with the Joint Presidential Guidance Note No. 2 of 2010. Having taken instructions, Mr Khan said that the appellant would continue to decline to give evidence.
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It was against that background that the hearing proceeded on submissions alone.
Findings of fact
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I do not propose to repeat or summarise the entirety of the evidence and submissions I heard and considered but will do so to the extent necessary to reach and give reasons for my findings. I considered the entirety of the evidence, in the round, before reaching my findings.
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By way of a preliminary observation, I assess the appellant’s written evidence in light of the fact he has not been cross-examined in relation to it.
Appellant’s ability to secure Iraqi documentation: family in Iraq
My findings under this heading will be structured as follows: first, I will make findings concerning whether the appellant...
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