(Immigration and Asylum Chamber) Appeal Number : PA/08867/2018
THE IMMIGRATION ACTS
Heard at: Manchester Civil Justice Centre
Decision & Reasons Promulgated
On: 1 st March 2019
On: 4 th March 2019
UPPER TRIBUNAL JUDGE BRUCE
(anonymity direction made)
Secretary of State for the Home Department
For the Appellant: Ms Patel, Counsel instructed by Broudie Jackson and Canter
For the Respondent: Mr McVeety, Senior Home Office Presenting Officer
DECISION and DIRECTIONS
1. The Appellant is a national of Iraq born in 1993. He appeals with permission the decision of the First-tier Tribunal (Judge M. Davies) to dismiss his human rights and protection appeal.
2. The basis of the Appellant's claim for asylum was that he faced a real risk of persecution by the Sh'ia militia Hashd al Shaabi. The Appellant claims that in 2017 his father was kidnapped by ISIS who looted his property and stole his car. The car was subsequently used as a vehicle for a bomb. The Appellant received a telephone call from someone who identified himself as a member of Hashd al-Shaabi who told him that members of the group, and Bayat tribesmen, had been killed in the attack. They swore revenge against the Appellant and his family. The Appellant and his family decided to flee the area. As they crossed the border into Turkey they heard that their family home had been blown up. The Appellant's personal characteristics, insofar as they are relevant for this appeal, is that he is a Kurd from Tuz Khurmatu who is nominally Sunni but is in fact an atheist.
3. The First-tier Tribunal found the Appellant's evidence to be "wholly without credit". The Appellant had suggested that Hashd al-Shaabi might have identified the car's association with his family because it was registered in their name, and because the registration documents were in it when the bomb went off. The Tribunal found that to be "pure speculation". The Tribunal regarded the account of the family shop being looted as "complete fabrication", and the claim that the family decided to flee into Turkey "wholly unbelievable". At paragraph 58 the determination says this:
"The Appellant's credibility is further damaged by the evidence which indicates at the time of the alleged incident which gives rise to the appellant's claimed risk of persecution ISIS were not in control of his home area and there is no evidence to suggest that they now currently have any influence in his home area and that the Appellant for instance would be at risk from them at the present time"
4. The Tribunal further rejected, for want of credibility, the claim that the Appellant's family left Iraq with him and found that they remain in Iraq. He would therefore have a CSID in Iraq and/or family members who could assist him in obtaining another one. On that basis the appeal is dismissed.
5. Permission to appeal was granted by First-tier Tribunal Judge Page in limited terms. Judge Page refused permission to the challenge to the Tribunal's findings on the historical events narrated, but granted the Appellant permission to challenge the First-tier Tribunal decision on the grounds that it had manifestly failed to consider the potential risk to the Appellant as a civilian from a contested area.
6. At the outset of the hearing I took the unusual step of inviting Counsel for the Appellant to renew the application for permission, insofar as it related to the grounds rejected by Judge Page, out of time to the Upper Tribunal. I did so because having read the determination with care I regarded it to be arguably flawed, and because I considered that the limited terms of the grant could impede my ability to fairly dispose of the remaining grounds, i.e. whether the Appellant continued to face a real risk of serious harm in Tuz Khurmatu and whether there was a viable internal flight alternative for him.
7. For the Respondent Mr McVeety accepted that he could have no real objection to this. I extended time and granted permission.
Discussion and Findings
8. The 'findings' in the First-tier Tribunal determination are flawed for three reasons.
9. First, the determination contains no hint of reasoning. The central elements of the Appellant's case - his father being kidnapped, the family property being looted, the car bomb, the threat and the family fleeing - are each in turn rejected because of the Appellant's "lack of credibility". That doesn't amount to reasoning, it amounts to a finding unsupported by reasoning.
10. Appellant's case. As the passage I cite at §3 above illustrates, the Tribunal appeared to believe that he claimed a fear of ISIS, which was rejected on the grounds that this group had not been in control of his area at the given time. The Appellant did not claim a fear of ISIS. He has consistently claimed a fear of Hashd al_Shaabi. See for instance:
"I fear Hasdt al-Shabi ( sic) they are in control of our area. I am Sunni Kurd and am being targeted by them. They are Shia and are targeting us. I fear I could be killed by them"
[answer to the question at 4.1 of the Appellant's screening interview "please explain briefly all of the reasons why you cannot return to your home area"]
11. Third, because the Tribunal failed to have regard to the country background evidence on what was actually happening in Tuz Khurmatu at the time that the Appellant left in the autumn of 2017. That was that the Shi'a militia Hashd al-Shaabi, widely believed to be under the control of the Government of Iraq, was systematically targeting the Sunni Kurdish population and trying to drive them out of their homes:
"In Tuz Khurmatu, a town in Salahadin, tens of thousands of Kurdish civilians were displaced, with their homes and shops being allegedly looted and destroyed by GoI troops; Human Rights Watch report that at least 51 civilians were killed. Dr Fatah has been informed by fieldworkers in Ninewa that Shi'a militias have displaced hundreds of Kurdish families and destroyed homes. These groups, primarily Hashd al-Shaabi, have impeded the work of international humanitarian organisations and targeted minorities such as the Yezidis; the same militia is reported to be occupying Kurdish neighbourhoods in Kirkuk where they patrol the streets in armed vehicles and harass civilians. Military forces on both sides remain mobilised and 'combat ready'".
[paragraph 12 of AAH (Iraqi Kurds - internal relocation) Iraq CG UKUT 212 (IAC)]
12. Had the First-tier Tribunal actually read the Appellant's case, or the country guidance, or the country background material produced in the bundle before it, and considered his evidence in that context, the decision could very well have been different. I therefore set the decision of the First-tier Tribunal aside insofar as it relates to the claim under the Refugee Convention.
13. In respect of the ground approved by Judge Page, the parties before me agreed that the determination contains absolutely no findings on whether the Appellant might be entitled to humanitarian protection. That part of the determination too is set aside.
14. In view of the fact that the First-tier Tribunal decision contains no salvageable findings, the parties agreed that the only fair disposal would be remittal de novo to the First-tier Tribunal by a Judge other than Judge Davies.
15. Having regard to the fact that this is a protection claim I am prepared to make the following direction for anonymity, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders.
"Unless and until a tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings".
16. The decision of the First-tier Tribunal is set aside in its entirety.
17. The decision in the appeal will be remade in the First-tier Tribunal.
Upper Tribunal Judge Bruce Date: 1 st March 2019