Upper Tribunal (Immigration and asylum chamber), 2024-01-16, UI-2021-000640
| Appeal Number | UI-2021-000640 |
| Hearing Date | 03 January 2024 |
| Date | 16 January 2024 |
| Published date | 31 January 2024 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI-2021-000640
First-tier Tribunal No: PA/005525/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000640
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First-tier Tribunal No: PA/005525/2016 |
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THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3 January 2024 |
On 16th of January 2024 |
Before
UPPER TRIBUNAL JUDGE KEITH
Between
‘RHA’ (Iraq)
(ANONYMITY DIRECTION CONTINUED)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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.
Representation:
For the Appellant: Mr M Mohzam, Solicitor, CB Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer
DECISION AND REASONS
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This is the remaking of the decision in the appellant’s appeal against the respondent’s refusal of his protection and human rights claim. The issues are touched on in the error of law decision annexed to this decision. Briefly, the appellant claims persecution in his country of origin, Iraq, as someone of Kurdish ethnic origin from the Iraqi Kurdish Region (‘IKR’). The appellant had claimed to fear persecution because of his criticism of the Kurdish Democratic Party or ‘KDP’. There had been a previous First-tier Tribunal decision dated 6 January 2017 of Judge Cox, who found the appellant credible as having criticised the IKR government and the KDP, as a result of which he had received threatening phone calls, but not other adverse attention. The Judge rejected his protection claim based on his opposition activities in Iraq and because of his ‘sur place’ activities in the UK, comprising social media posts. In summary, his profile was not high enough to be at risk of more serious adverse treatment.
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I have set aside the later decision of a Judge of the First-tier Tribunal, Judge McKinney, of 4 October 2021, without preserved findings, albeit the necessary findings in this case are narrow. This is because Judge Cox had already accepted the genuineness of the appellant’s opposition to the KDP, but not other partis of his claim. I therefore take Judge Cox’s decision as my starting point.
The issues in this appeal
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Sections 30 to 36 of the National and Borders Act 2022 do not apply, as the appellant’s asylum claim predates those provisions coming into force. I discussed the three issues that I needed to decide with the representatives at the beginning of the hearing. I set these out below. After the appellant gave his evidence, Mr Mohzam confirmed that he would no longer pursue the third ground of appeal (§3(c) below).
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Does the appellant have a well-founded fear of persecution by KDP supporters or IKR government officials, either as a result of pre-flight activities; in combination with sur place activities, and/or because of a continuation of such activities in Iraq?
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Would relocation to another Kurdish city within the IKR, but not governed by the KDP, be unduly harsh? Mr Melvin referred to areas in the IKR such as Erbil and Duhok as being controlled by the KDP, while other governorates were under the control of the Patriotic Union of Kurdistan (‘PUK’) or the Gorran Movement. Has the appellant discharged the burden of showing why relocation outside KDP controlled areas would be unduly harsh? I bear in mind that Sulaymaniyah, the appellant’s home city, is said to be controlled by the PUK.
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Would there be a risk of a breach of the appellant’s rights under Article 3 ECHR either because of a return to an internal destination outside the IKR (e.g. Baghdad, - see: SA (Removal destination; Iraq; undertakings) Iraq [2022] UKUT 37 (IAC)) or because travel to Sulaymaniyah to obtain an INID document would result in such a risk? On this third issue, the appellant had previously accepted that his brother, still living in Iraq, had his CSID document. He confirmed in oral evidence to me that he did not know if his brother no longer had his CSID, as he had not asked him. He accepted that he had no reason for thinking that his brother could not send him his CSID. In any event, the respondent confirmed that the appellant would be returned directly to Sulaymaniyah airport; his family continued to live in that city; and the local register office issuing INIDs was based there. There was no reason that the appellant’s return to Sulaymaniyah would breach his rights under Article 3 ECHR by virtue of needing an INID card and Mr Mohzam indicated that this ground was no longer pursued. He also confirmed that no appeal based on Article 8 ECHR was pursued.
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The Law
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Paragraph 334 of the Immigration Rules states that the appellant will be granted asylum if the provisions of that paragraph apply. The burden of proof rests on the appellant to satisfy me that he falls within the definition of a refugee, as per Article 1(A) of the Refugee Convention. In essence, the appellant has to show that that there are substantial grounds for believing that he is outside Iraq by reason of a well-founded fear of persecution for a Refugee Convention reason and is unable or unwilling, owing to such fear, to avail himself of the protection of that country.
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I have taken Judge Cox’s decision as my starting point, but I am conscious that it is not a ‘straitjacket’. It may be departed from on a properly principled basis and whilst Judge Cox’s decision is an authoritative assessment of the appellant’s status at the time it was made, facts happening since that decision can always be taken into account. I also bear in mind that if there are facts which are not materially different from those put to Judge Cox, I should regard his decision as settling the issue in dispute which is based on those facts.
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In relation to whether internal relocation would be unduly harsh, by exclusion, the respondent has identified areas in the IKR not controlled by the KDP. The burden of proof in that context remains on the appellant to prove why such relocation would be unduly harsh (see MB (Internal relocation – burden of proof) Albania [2019] UKUT 00392 (IAC)).
Findings of fact
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I considered all of the evidence presented to me, whether I refer to it specifically in these findings or not.
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I start by considering Judge Cox’s findings, which, generally speaking, accepted the appellant’s credibility as someone who opposed the KDP government while in Iraq, up to 2015, and since entering the UK, had engaged in some ‘sur place’ activities. I set out the relevant passages of her findings:
“24. The Appellant provided a detailed account of his reasons for opposing the ruling party and highlighted the conditions for public sector workers. For example, he described how prior to leaving Iraq they had not been paid for some time. He told me that this had been one of the factors that they had recently been campaigning against. I note that this is consistent with the background material. Amnesty International (Al) reported that ‘in October, hundreds of public sector employees protested in Sulaymaniyah and other eastern cities to demand payment of overdue salaries’. In addition, Al reported that KDP militia forces fired at protesters in Qaladze and Kalar (page 617 of the Appellant bundle).
25. In support of the appeal, the Appellant provided screenshots from a Facebook page under the name of ‘[name redacted]’. The Appellant stated that this is his Facebook page (Q73 of the AIR). The Presenting Officer noted that the Appellant initially used an account under the name [name redacted] which was also used by some of his friends. However, there was no evidence linking the Appellant to that Facebook page. The Presenting Officer also noted that the Appellant claimed that he started using his own Facebook page in 2014 and frequently lodged posts on criticising the government. However, the Appellant had only provided copies of a few posts for April, May and August 2015, which is inconsistent with his claim that he had frequently criticised the government.
26. In any event, the Presenting Officer submitted that the profile photo is unclear, and I cannot be satisfied that ‘[name redacted]’ is the Appellant’s Facebook page. The Appellant told me that the page is private, and he had used his password to access the pages. It seems to me that if the respondent doubted that this was the Appellant’s Facebook page, then the officer ought to have asked to see him open the page.
27. In any event, the Appellant provided a screenshot from the page, which includes a clear photograph of him (page 21 of bundle C).
28. I appreciate that the Appellant has not provided a certified translation of the posts. However, the pages have been translated and, in my view, the Respondent could easily have used Google translation to determine whether the translations were an accurate reflection of the...
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