ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Lane, Upper Tribunal Judge O'Conner,
Upper Tribunal Judge Finch
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE IRWIN
| AA (IRAQ)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Blundell (instructed by The Government Legal Department) for the Respondent
Hearing date: 22 June 2017
Crown Copyright ©
"86. I reject this submission. I do so because I do not accept there is any reliable evidence the Appellant's family have left Iraq for Syria. In any event, even if his mother uncle and sisters have done so, this ignores the existence of his cousin Abdul Sattar who assisted him in leaving Iraq. This gentleman operates a business. I refer in this regard to paragraph 10 of the Appellant's witness statement of 29 October 2010 in which he states amongst other things –
"My cousin, Abdul Sattar was not living with the rest of the family in Syria, as he is a lorry driver and travels to different places but he was visiting the family when I spoke to my mother and him in May 2010."
87. It is thus likely on the Appellant's own account Abdul Sattar remains in Iraq from time to time and whilst to a certain extent itinerant in the course of business is likely to be based in Kirkuk. There is no adequate explanation forthcoming from the Appellant or any other source as to the reason why Abdul Sattar cannot act as the Appellant's sponsor / guarantor."
"The Upper Tribunal erred in concluding, at paragraph 170 of the determination, that the question of whether a CSID card could be obtained by an applicant arose for consideration only where the Secretary of State asserts that his removal to Iraq is feasible. As part of an assessment as to whether an individual requires international protection a decision maker is (a) bound to consider whether the individual concerned has a CSID card or could obtain one either prior to, or shortly after removal to Baghdad, failing which (in the absence of an alternative means of support) his circumstances are likely to amount to a breach of article 3 ECHR and (b) not entitled to postpone any decision on that question if it is not feasible for him to be returned to Iraq."
The Jurisdictional Issue
"The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law insofar as the assessment of exceptional circumstances in paragraph 398 of the Immigration Rules is concerned. I set aside the decision insofar as it relates to that finding. The First-tier Tribunal did not err in law in its findings with regard to Article 3 and I do not set aside that decision".
The UT Judge formulated certain consequential case management directions relating to the provision of evidence and, further, provisionally relisting the appeal for hearing on 15 March 2016 for the purpose of remaking the decision of the FtT."
Proceedings on appeal to Upper Tribunal
(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.
(2) The Upper Tribunal –
(a) may (but need not) set aside the decision of the First-tier Tribunal, and
(b) if it does, must either–
(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or
(ii) re-make the decision.
(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also –
(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;
(b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.
(4) In acting under subsection (2)(b)(ii), the Upper Tribunal–
(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and
(b) may make such findings of fact as it considers appropriate.
Right to appeal to Court of Appeal etc.
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.
(6) The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers–
(a) that the proposed appeal would raise some important point of principle or practice, or
(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.
(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court of Session that falls within subsection (7) unless the court considers –
(a) that the proposed appeal would raise some important point of principle [ or practice] , or
(b) that there is some other compelling reason for the court to hear the appeal.
(7) An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.
(8) For the purposes of subsection (1), an 'excluded decision' is –
(a) any decision of the Upper Tribunal on an appeal under section 28(4) or (6) of the Data Protection Act 1998 (c. 29) (appeals against national security certificate),
(b) any decision of the Upper Tribunal on an appeal under section 60(1) or (4) of the Freedom of Information Act 2000 (c. 36) (appeals against national security certificate),
(c) any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal),
(d) a decision of the Upper Tribunal under section 10–
(i) to review, or not to review, an earlier decision of the tribunal,
(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or
(iii) to set aside an earlier decision of the tribunal,
(e) a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under this section have been begun), or
(f) any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor.
(9) A description may be specified under subsection (8)(f) only if –
(a) in the case of a decision of that description, there is a right to appeal to a court from the decision and that right is, or includes, something other than a right (however expressed) to appeal on any point of law arising from the decision, or
(b) decisions of that description are made in carrying out a function transferred under section 30 and prior to the transfer of the function under section 30(1) there was no right to appeal from decisions of that description.
(10) Where –
(a) an order under subsection (8)(f) specifies a description of decisions, and
(b) decisions of that description are made in carrying out a function transferred under section 30,
the order must be framed so as to come into force no later than the time when the transfer under section 30 of the function takes effect (but power to revoke the order continues to be exercisable after that time, and power to amend the order continues to be exercisable after that time for the purpose of narrowing the description for the time being specified).
(11) Before the Upper Tribunal decides an application made to it under subsection (4), the Upper Tribunal must specify the court that is to be the relevant appellate court as respects the proposed appeal.
(12) The court to be specified under subsection (11) in relation to a proposed appeal is whichever of the following courts appears to the Upper Tribunal to be the most appropriate –
(a) the Court of Appeal in England and Wales.
"any procedural, ancillary or preliminary decision made in relation to an appeal against a decision under section 40A of the British Nationality Act 1981, section 82 of the Nationality, Immigration and Asylum Act 2002, or regulation 26 of the Immigration (European Economic Area) Regulations 2006."
"…contemplates a single, indivisible appeal (our formula) from the UT to the Court of Appeal only at the stage when the UT appeal process is finally completed. This, it was submitted, would give effect to the presumed parliamentary intention of a sensible, coherent and workable appeal model. Ms Anderson's alternative submission was that the appeal which the Appellant purports to pursue is precluded by Article 3(m) of the 2009 Order in any event." (VOM, Paragraph 14)
"…a finding that the decision of the FtT involved the making of an error on a point of law and/or a consequential decision of the UT setting aside the decision of the FtT. Mr Khubber submitted that the statutory language is sufficiently broad and unqualified to warrant this construction. He further submitted that this is supported by the restrictive nature of the second appeal test." (VOM, paragraph 13)
"22. The key to answering the question of whether the Appellant can seek to pursue an appeal to the Court of Appeal at this stage of the proceedings, via an application for permission to appeal, lies, firstly, in the construction of Section 12 of the 2007 Act. Our analysis and dissection of Section 12 are as follows:
(a) The function, and responsibility, of the UT is to determine whether an appealable decision of the FtT is vitiated by error of law: see Section 11.
(b) In performing this function, the first task of the UT is to determine whether the decision of the FtT "involved the making of an error on a point of law": per Section 12(1).
(c) If the UT "finds" (the statutory word) that the decision of the FtT did not involve the making of an error on a point of law, the appeal is dismissed and the decision of the FtT affirmed.
(d) If the UT finds that the decision of the FtT involved the making of an error on a point of law, it must then progress to a second stage which entails deciding whether to set aside the decision of the FtT – see Section 12(2)(a) – an exercise which entails the assessment of whether the error of law diagnosed is material. This is the rationale underpinning the discretionary power conferred on the UT in this respect.
(e) Where the UT, having found that the decision of the FtT involved the making of an error on a point of law, concludes, at the second stage, that the error was not material the appeal is dismissed and the decision of the FtT affirmed.
(f) If, on the other hand, the UT decides that the error of law was material, this completes the second stage and triggers a third stage, at which a further decision must be made, namely whether to remit the case to the FtT with directions for its reconsideration or to remake the decision of the FtT.
(g) The operation of Section 12, therefore, throws up a series of possible steps, stages and outcomes. The chief characteristic of some of these is that they are intermediate in nature. This analysis applies to:
(i) A finding that the decision of the [FtT] was erroneous in law.
(ii) A determination, whether in tandem with or separate from (a), to set aside the decision of the FtT.
(iii) A determination, normally made in tandem with a positive set aside determination, of whether to remit the case to the FtT or retain it in the forum of the UT for the purpose of remaking the decision."
The Substantive Appeal
"170. In the absence of an expired or current Iraqi passport, a person can only be returned to Baghdad using a laissez-passer. According to Dr Fatah, either a CSID or INC or a photocopy of a previous Iraqi passport and a police report noting that it had been lost or stolen is required in order to obtain a laissez-passer. If a person does not have one of these documents then they cannot obtain a laissez-passer and therefore cannot be returned. This has a significant bearing on what we have just said. If the position is that the Secretary of State can feasibly remove an Iraqi national, then she will be expected to tell the tribunal whether and if so what documentation has led the Iraqi authorities to issue the national with the passport or laissez-passer (or signal their intention to do so). The Tribunal will need to know, in particular, whether the person concerned has a CSID. It is only where return is feasible but the individual concerned does not have a CSID that the consequences of not having one come into play."
"7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department  EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P's return is not currently feasible, given what is known about the state of P's documentation.
C. Position on Documentation Where Return is Feasible
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible [emphasis added] that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination."
"98. … [Counsel for the Secretary of State, Mr Eadie]'s contention is that, properly analysed, the practice of not returning those without the appropriate documents is not a voluntary policy of the Secretary of State at all. The lack of documentation creates an impediment to return which the Secretary of State cannot circumvent. Iraq will not receive anyone from the UK without the relevant travel document. If an unsuccessful applicant for asylum refuses to co-operate to obtain the laissez passer document, he is in precisely the same situation as any other failed asylum seeker whom the Secretary of State is unable to return for one reason or another. The assurance of the Secretary of State that she would not return someone to Iraq without the relevant documents is of no special significance; it simply reflects realities. …
99. Mr Eadie submits that these appellants are precisely in the situation of any other failed asylum seekers who would not be at risk in their own state but cannot for technical reasons be returned home. The existence of technical obstacles does not entitle them to humanitarian protection. …
100. Mr Eadie says that this is not like the J1 case  EWCA Civ 279 or the sur place cases where, if returned, the appellants would potentially face ill-treatment meeting Article 3 standards. They can only be returned with the necessary documentation, and if and when the impediment caused by lack of the relevant documentation is overcome, they will be safe on return.
101. In my judgment, this analysis is correct. I accept, as Mr Fordham submits, that it would be necessary for the court to consider whether the appellants would be at risk on return if their return were feasible, but I do not accept that the Tribunal has to ask itself the hypothetical question of what would happen on return if that is simply not possible for one reason or another. …"
The guidance we give is as follows:
A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE
1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called "contested areas", comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta'min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.
2. The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.
3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).
4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department  EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)
5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department  EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of a current or expired Iraqi passport or a laissez passer, if the Tribunal finds that P's return is not currently feasible on account of a lack of any of those documents.
8. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport.
C. The CSID
9. Regardless of the feasibility of P's return, it will be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID.
10. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
11. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IKR)
14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.
15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.
16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).
E. IRAQI KURDISH REGION
17. The Respondent will only return P to the IKR if P originates from the IKR and P's identity has been 'pre-cleared' with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.
18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.
F. EXISTING COUNTRY GUIDANCE DECISIONS
22. This decision replaces all existing country guidance on Iraq