IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-
2024-004978
(PA/00447/2024)
THE IMMIGRATION ACTS
Decision & Reasons Issued:
2
nd May 2025
Before
UPPER TRIBUNAL JUDGE BRUCE
Between
SAH (IRAQ)
Appellant
AND
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
: For the Appellant: Mr Eaton, Counsel instructed by Barnes Harrild and Dyer Solicitors For the Respondent: Mr Wain, Senior Home Office Presenting Officer
Heard in Field House on 8 January 2025
DECISION AND REASONS 1.
The Appellant is a national of Iraq born in 1989. He appeals with permission against the decision of the First-tier Tribunal to dismiss his appeal on protection and human rights grounds. 2.
The basis of the Appellant's claim was that whilst living in the Kurdish region of Iraq (IKR) he came to the adverse attention of the authorities when he protested about unfair/corrupt practices in the IKR. The circumstances of this were that the Appellant, a nursing graduate, was unable to find employment because he did not have a letter of recommendation from one of the main political parties in the IKR, in particular the ruling KDP. His criticisms of the KDP led to him being threatened on two occasions by individuals whom he believed to be affiliated with the organisation. 3.
The Respondent accepted that the Appellant is from the IKR, and that he is a nursing graduate. The core of his claim was however rejected for two reasons. The first is that there was no supporting evidence to demonstrate that nurses would have any difficulty in obtaining employment in the IKR; indeed the evidence indicated that there was a critical shortage of nurses in the region. There was certainly no evidence that nurses are required to have political patronage in order to obtain employment. That was the first difficulty. The second difficulty arose from the chronology of claimed events. The Appellant graduated in 2010, and having failed to find employment eventually started working in a supermarket. It was not until 2021 that he attempted again to join the nursing profession. It was on this occasion that he came into conflict with the KDP. The Respondent noted the long period in which the Appellant was engaged in alternative employment, and questioned why he had become determined to join the nursing profession after so long. The claim was therefore rejected. 4.
On appeal to the First-tier Tribunal the Appellant failed to discharge the burden of proof in respect of either of these grounds for refusal. There was no country background evidence indicating that a letter of support from the KDP would be required to work as a nurse, and the Tribunal agreed with the Respondent that the claimed events did not disclose a real risk of persecution should the Appellant return to Iraq. Having had regard to the operative country guidance in
SMO & KSP (civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) the Tribunal then went on to consider whether the Appellant was at risk of falling into destitution upon return, for a lack of identity documentation enabling him to work and obtain basic services. It was the Appellant's evidence that he had been issued with both a CSID and a new biometric INID card, but these were both now in possession of the Polish authorities, who had confiscated them after the Appellant was apprehended there on his way to the United Kingdom. The Tribunal found that it would be reasonable to expect the Appellant to contact the Polish authorities to try and get these documents back. In the alternative it was open to him to obtain a replacement INID, through processes explained in the relevant Country Policy and Information Note
Iraq: Internal relocation civil documentation and returns (version 14) October 2023 ('the CPIN'). The appeal was therefore dismissed. 5.
The Appellant was granted permission to appeal to the Upper Tribunal on 20 October 2024. The grounds upon which permission was granted are solely concerned with whether or not the Tribunal erred in its approach to documentation. The Appellant was, at the date of hearing, undocumented. The correct question for the Tribunal was therefore whether he would be able to be re-documented "within a reasonable time" of returning to Iraq; the grounds assert that the Tribunal failed to ask itself that question, and misinterpreted the information in the CPIN. 6.
The appeal was heard a Field House on 8 January 2025. There has been a delay in this decision being promulgated, for which the parties have my sincere apologies. The delay has arisen because shortly after the hearing I had to take an extended leave of absence for medical reasons. I can confirm that in reaching my decision I have re-read all of the relevant documents, including a full note of hearing taken on the day.
Discussion and Findings 7.
As I set out above, the Tribunal considered that there were two ways in which the Appellant might obtain identity documentation enabling him to live in Iraq without facing a real risk of falling into destitution. 8.
The first was that he could approach the Polish authorities and ask them to give his identity documents back. For the Appellant, Mr Eaton submitted but there was no reason to suppose that the Polish authorities had even retained these documents. It had been some two and half years since the documents came into their possession, and in the absence of evidence about the way that the Polish authorities deal with the cases of transitory migrants, there was no basis upon which the Tribunal could properly find that this was an option open to the Appellant. For all we know, the Polish authorities may have destroyed the documents. Mr Eaton reminded me that the Tribunal had been obliged to consider the notional return of the Appellant to Iraq at the date of the hearing. At the date of the hearing, he was undocumented. There was no evidential basis for the Tribunal to conclude that he would be able to get those cards back from the Polish authorities 'within a reasonable time frame'. 9.
In response Mr Wain pointed out that it is not just the Appellant's CSID and INID that are alleged to be in the possession of the Polish authorities; it was the Appellant's evidence that they in fact have his Iraqi passport. In those circumstances, Mr Wain submits, it is extremely unlikely that the Polish authorities will have destroyed these documents. Furthermore, the burden of proof rests on the Appellant. He has to date made no effort at all to get them. 10.
I am not satisfied that there was any error in approach by the Tribunal here. It was the Appellant's evidence that he had handed over all his key identity documents to the Polish authorities about
two and half years ago. Whilst it seems to me to be inherently unlikely that the Polish authorities would lose or destroy key identity documents including a passport, that is not what matters here. The key point is that the burden of proof rests on the Appellant. He has made no effort to approach the Polish authorities to obtain those documents. Unless and until he demonstrates that he cannot retrieve them, then it is a burden that he cannot discharge. 11.
It follows that I need not consider the alternative findings made by the Tribunal, and challenged by the Appellant: that it would be possible for the Appellant to obtain a replacement INID. I do so here only because this issue may be relevant in the future: should it transpire that the documents cannot be retrieved from Poland this will obviously be relevant to any decision as to whether the Appellant can be forcibly returned to Iraq. 12.
The Tribunal found that the Appellant could obtain new documentation by granting his father in Iraq power of attorney, and making relevant statements to the Iraqi embassy in London. The Tribunal based this conclusion on paragraph 6.7.9 of the CPIN: 6.7.9 On 19 January 2023, the Iraqi Embassy in London confirmed that the process for renewing an INID can be commenced from the UK but would need to be retrieved by a person acting as power of attorney, who would then send the INID to the UK or meet the returnee on arrival with the renewed INID (see Annex D). The correspondence received from the Iraqi Embassy stated: a)
The Iraqi citizen shall report the loss to the local police and an official notification report shall be issued, and submit it to the Iraqi Consulate to be certified by the Consul. b)
The Iraqi Consul organizes an official lost report that includes the citizen's signature and fingerprint. c)
A written undertaking shall be made by the Iraqi citizen that he did not give up the Iraqi nationality. d)
The application has to be sent to MOFA (the Ministry of Foreign Affairs). e)
A power of attorney shall be made for someone to follow up with competent authority to issue a new INID.' 13.
Mr Eaton submits that here the Tribunal erred in failing to have regard to all material evidence. The next paragraph of the CPIN should also have been taken into account. That reads: 6.7.10 CPIT was unable to ascertain if scanned copies of the lost INID are required in order to replace it in the sources consulted (see Bibliography). It should also be noted the process to assign power of attorney from the UK requires the person to attend the Iraqi Embassy and show some other form of ID (see Issuing identity documents by proxy). 14.
The reference here to 'Issuing identity documents by proxy' leads the reader to paragraph 6.17 of the CPIN: 6.17 Issuing identity documents by proxy 6.17.1 The Iraq Ministry of Foreign Affairs website noted the process of issuing documents by power of attorney: 'Iraqi documents required -
Original Iraqi personal ID(Hawyat el Ahwal) and Iraqi citizenship certificate (Shahdit el Jensia) or unified card (Bitaka el mwahada) -
and color copies of them all (for the principal). -
A copy of the Iraqi personal ID (Hawyat el Ahwal) and Iraqi citizenship certificate (Shahdit el Jensia) or unified card(Bitaka el mwahada), nationality certificate or unified card (for the attorney) -
Personal photos of the principal, 4 photos. -
Personal photos of the attorney, 4 photos. -
Fees: - (30) thirty dollars in cash [around £22.92 GBP79]. 6.17.2 Dr Fatah in a review of the previous CPIN on civil documentation and returns stated: 'In order to grant power of attorney from the UK, if the person is from the IKR, they can do so by visiting the KRG office in London. They would need some sort of ID and the details of the person that they want to represent them in the IKR. The representatives ID details are not required. The application will then be approved by the KRG public relations office before being taken to court for another approval. Only then will power of attorney be granted, and it will only be valid inside the IKR. However, if the application takes place in the Iraqi consulate in London, it can be used throughout Iraq. Again, the person would need some form of ID, British or Iraqi, and the details of the person that they wish to represent them. 15.
What we have here, Mr Eaton submits, is a classic Catch-22 situation. In order to assign the power of attorney to his father, the Appellant would need to produce an identity document to the embassy in London. Since he does not have one, he cannot authorise his father to assist in obtaining a new one. This seems to me to be a good point. Paragraph 6.7.10 of the CPIN was certainly relevant to the matter in hand, and it should have been evaluated by the Tribunal in its assessment of the likelihood or otherwise of the Appellant being able to obtain a new INID through the offices of the Iraqi embassy and his father. I therefore set that alternative finding aside. 16.
Although Mr Eaton has succeeded on this ground, the appeal is nevertheless dismissed. The Appellant failed to demonstrate that he would be at a real risk of persecution upon return to Iraq. He further failed to demonstrate that he would be unable to obtain the requisite identity documents within a reasonable time of returning to Iraq.
Decisions
17.
The decision of the First-tier Tribunal is upheld and the appeal is dismissed. 18.
There is an anonymity order in this ongoing protection appeal. Upper Tribunal Judge Bruce Immigration and Asylum Chamber 29
th April 2025