BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> PA118362019 [2022] UKAITUR PA118362019 (15 March 2022)
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/PA118362019.html
Cite as: [2022] UKAITUR PA118362019

[New search] [Printable PDF version] [Help]

Description: Description: Asylum and Immigration tribunal-b&w-tiff

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: PA/11836/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at: Manchester Civil Justice Centre (hybrid)

Decision & Reasons Promulgated

On: 20 th September 2021

On: 15 th March 2022

 

 

 

Before

 

UPPER TRIBUNAL JUDGE BRUCE

 

 

Between

 

NOA

(anonymity direction made)

Appellant

And

 

The Secretary of State for the Home Department

Respondent

 

 

For the Appellant: Mr Schwenk, Broudie Jackson and Canter Solicitors

For the Respondent: Mr Diwnycz, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

 

1.       The Appellant is a national of Iraq born in 1990. He seeks protection in the United Kingdom.

 

 

Anonymity Order

 

2.       This appeal concerns a claim for protection. Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders I therefore consider it appropriate to make an order in the following terms:

 

"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 to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings"

 

 

Background and Decision of the First-tier Tribunal

 

3.       The history of this matter is as follows.

 

4.       The Appellant arrived in the UK on the 8 th May 2018 and claimed asylum on arrival. He advanced a claim of persecution by the 'Islamic' State group which was rejected by the Respondent by her letter dated the 15 th November 2019.

 

5.       The Appellant appealed to the First-tier Tribunal and on the 30 th January 2020 the matter came before First-tier Tribunal Judge Meyler.

 

6.       For reasons not now relevant to this appeal, Judge Meyler rejected the Appellant's account of extortion by ISIL. Having done so, it fell to the Tribunal to nevertheless determine whether, as a Sunni Kurd, the Appellant faced a real risk of harm should he be returned to his home town of Gwer, a small market town just south-east of Mosul in Nineveh governate. The objective information indicates that this was a town which fell briefly to ISIL in 2014 before being retaken by the Peshmerga, but the area remained the scene of sporadic, sometimes intense, fighting for the following three years. Much of the civilian population fled. Conditions have improved somewhat since July 2017 when Mosul was secured by allied government and Kurdish forces, but the infrastructure of the area - including many buildings - has been destroyed; ISIL sleeper cells remain in the area, launching occasional attacks and being particularly active at night; the environment is polluted with a significant quantity of unexploded ordinance. Today Nineveh governate remains formally contested, with a patchwork of control between local Kurdish security forces, the Iraqi Army, and Shi'a militias known as the 'Peoples Mobilisation Units' (PMUs).

 

7.       With this country background information in mind the First-tier Tribunal directed itself to the evidence, and findings, in SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC). The evidence of country expert Dr Rebwar Fatah about Nineveh, and the area surrounding Mosul in particular, is set out in detail. Having had regard to that evidence the First-tier Tribunal concluded, at its §51, that the Appellant "cannot be expected to stay in that part of the country, given the current humanitarian conditions, when measured against the sliding scale of his ethno-religious identity". It found that the Kurdish population is particularly marginalised and deprived of protection in areas outside Kurdish control [at §54]:

 

"... there is a security vacuum for Kurds in Nineveh. Considering the presence of ISIL in the region, who still ' rule the night', particularly in rural areas, its exertion of physical and psychological pressure over minority populations, including the abandonment of populated villages, destruction of agricultural products and infrastructure, repeated raids, and assassinations which target the local security hierarchy, civilians in rural areas around Mosul and much less Sunni Kurds from such areas, cannot rely upon security services for adequate protection (para 69, SMO). I therefore find that it is currently unsafe for the appellant to return to the Mosul area as a result of his ethno-religious identity".

 

8.       These findings are unchallenged by the Secretary of State, who accepts that they were reasonably open to the Tribunal on the evidence before it.

 

9.       Having made this finding that the Appellant continued to face a real risk of harm in his home area the Tribunal went on to consider whether the Appellant could reasonably be expected to go and live elsewhere in Iraq. For reasons that I summarise in greater detail below, the Tribunal made two key findings. First, that the Appellant would be able to acquire new identity documents, and second that this would enable him to relocate to the IKR without facing any undue harshness. The appeal was accordingly dismissed.

 

 

The Appeal to the Upper Tribunal

 

10.   The Appellant sought permission to appeal to the Upper Tribunal, which was granted, upon renewed application, by Upper Tribunal Judge Norton-Taylor on the 7 th May 2000.

 

11.   The matter came before me on the 27 th November 2020. In determining whether Judge Meyler erred in her approach I had regard to the oral submissions made on that date by Mr Schwenk and Senior Presenting Officer Mr Tan, the written submissions of Counsel Ms L. Mensah dated 1 st and 15 th July 2020, and a skeleton argument prepared on behalf of the Secretary of State by Senior Home Office Presenting Officer Ms A. Fijiwala dated the 8 th July 2020.

 

12.   The point upon which Judge Norton-Taylor had granted permission was whether, in its disposal of the appeal, the First-tier Tribunal properly applied the country guidance set out in AAH (Kurds - internal relocation) Iraq CG [2018] UKUT 212 (IAC) and subsequently approved in SMO: was it reasonable to expect the Appellant to relocate from his home in Nineveh to live in the IKR?

 

13.   In AAH Tribunal found that whilst there were no legal impediments to a Kurd from Iraq proper relocating to the IKR, whether such an individual was able to lead a "relatively normal life" once there depended on a number of factors:

8.       If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a 'relatively normal life', which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P's family on a case by case basis.

9.       For those without the assistance of family in the IKR the accommodation options are limited:

(i)                  Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members;

(ii)               If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month;

(iii)             P could resort to a 'critical shelter arrangement', living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;

(iv)              In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.

10.   Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:

(i)                  Gender. Lone women are very unlikely to be able to secure legitimate employment;

(ii)               The unemployment rate for Iraqi IDPs living in the IKR is 70%;

(iii)             P cannot work without a CSID;

(iv)              Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;

(v)                Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;

(vi)              If P is from an area with a marked association with ISIL, that may deter prospective employers.

 

14.   The First-tier Tribunal's reasoning on relocation is set out at its [55]-[62]. The Tribunal begins by recognising that in order to move within Iraq, the Appellant must have a CSID [55]. Since he is from an area which is unsafe he will not be able to return home to get one himself [56]. Applying SMO it was found to be likely that the Appellant will however know the relevant details of his 'family book' to enable him to make the application via proxy: the Tribunal suggests that the Appellant could ask his family or one of his "many Arab friends" who are able to enter and leave Mosul without difficulty [58]. Alternatively he could apply for a new card using his nearest Iraqi Consular facility [59]. Once he has his card he can board a plane from Baghdad to Erbil [59]. He won't have a problem getting into Kurdish territory [60]. The Tribunal then says this:

 

"I have found that the appellant has failed to show that he has no family members. According to SMO cultural norms require his family to accommodate him. I find that he will have sufficient assistance from his family so as to lead a 'relatively normal life' which would not be unduly harsh. I also find, in the alternative or in addition to the foregoing, that the appellant is an industrious businessman, who would be able to find work as a labourer, taxi driver run a grocery stall in order to support himself and/or contribute to his family's household running costs".

 

Having had regard to its own findings on the matter, the Tribunal concluded that internal flight would be reasonable.

 

15.   For the purpose of this part of the decision I start from the premise that the Tribunal was entitled to find as it did that the Appellant would be arriving in Erbil by plane, having managed to secure a new identity document within a reasonable time after arriving in Baghdad. I must proceed on this basis because in granting permission Judge Norton-Taylor expressly refused permission on the 'identity card' point. As I shall explain, the passage of time has meant that this limitation on the grant of permission has presented this Tribunal with some difficulty.

 

16.   The first criticism that is made of the Tribunal's reasoning is in its assumption that the Appellant would have family members living in the IKR who could offer him assistance. The Appellant is of course not from the IKR, and there was no evidence to show that any of his family members were living there. Indeed in its reasoning on his redocumentation process the Tribunal appeared to conclude that his family remained in Nineveh. Secondly, the Appellant challenges the reasoning that as an "industrious businessman" the Appellant would be able to find work as a labourer or taxi driver: there appeared to be no connection between these various skillsets and no consideration at all of the findings in AAH that unemployment amongst IDPs in the IKR runs at 70% and that there has been a marked decrease in the construction sector. Nor was there any recognition that as a man from Nineveh - an area that continues to be associated with ISIL - prospective employers may regard him with suspicion. I find these criticisms to be made out.

 

17.   For the Respondent Mr Tan was prepared to accept that the Tribunal does not appear to have considered the applicable country guidance in AAH, and the multiple difficulties faced by IDPs that the decision sets out. He was not however prepared to concede that the ground was made out so that the decision should be set aside. That is because there was, in Mr Tan's submission, a very good alternative reason why this particular IDP would have no problem in the IKR. That is that on his own evidence the Appellant has already established connections in the region, in that he previously ran his own business there: in 2009 [Q46 asylum interview] he established a business buying vegetables and fruits on the borders of Turkey and Iran, and selling them in the market in Erbil [Q45, Q61]. He has been to that city "many times" [Q105]. This evidence tended to mitigate the concerns expressed in AAH that nepotism remains a significant problem in the IKR and that those without connections were likely to struggle: Mr Tan submitted that it was this evidence that underpinned the Tribunal's alternative finding that the Appellant would be able to find work running a grocery stall.

 

18.   I have not found it easy to unpick these various submissions, nor indeed the decision of the First-tier Tribunal. There is no doubt that the Tribunal built its conclusions squarely on the assumption that the Appellant would be supported and housed by family members in the IKR when there was no evidential foundation for that finding. It was entirely speculative to conclude that if the Appellant's family had left the Mosul area they had headed for the IKR, and more speculative still to imagine that as IDPs they would have been able to establish themselves to the extent that they were now in a position to support him. Furthermore the findings on this matter do appear to be at odds with those expressed elsewhere in the decision that his family would be in Nineveh and therefore in a position to get the Appellant a new identity card. I set those findings aside, the error being a failure to apply the relevant country guidance.

 

19.   That was not however the sum total of the reasoning. The Tribunal found internal flight to be a reasonable option for the alternative reason that the Appellant would be able to support himself. I accept that here too the First-tier Tribunal does not appear to have factored in the objective background evidence on the IKR set out in the country guidance. In brief summary that evidence indicates that IDPs find it extremely difficult to find regular employment and that the once booming economy in the IKR has taken a massive downturn in the aftermath of the war with ISIS. Can the decision nevertheless be saved by the Tribunal's final 'in the alternative' conclusion that the Appellant could "run a grocery stall": he has done so before, why can't he do so again?

 

20.   Mr Tan's submission on this point had considerable merit, and I gave it careful consideration at, and following, that first hearing. I nevertheless concluded, in my written decision of the 16 th December 2020, that in the end there are two reasons why the grounds were made out. The first is that I cannot be satisfied that Mr Tan's reasoning was the reasoning employed by the Tribunal. The second is that the First-tier Tribunal goes to some lengths to analyse and reject the Appellant's evidence about his claimed business operation at its §25 to §27. Crucially, it draws adverse inference from his inability to name the fruit and vegetable market in Erbil. The clear import of those passages is that the Appellant's claim to have run this business was rejected by the First-tier Tribunal. That being the case, it would then be perverse to dismiss the appeal on the basis that it was true.

 

21.   For those reasons, in my initial decision I set the reasoning on internal flight aside to be remade. As I went on to explain however, the extent of that remaking did present me with some difficulties.

 

22.   In granting permission Judge Norton-Taylor said this:

 

"Turning to the application of the country guidance in SMO, the judge found at [30] and [33] that the appellant could not "reasonably be expected" to return to live in his home area and that it would be "unsafe" to do so by virtue of the security situation on the ground. The judge went on to conclude that the appellant would be able to obtain a replacement CSID (or a new-style INID) or indeed his passport. This would, the judge concluded, permit the appellant to relocate to the IKR and reside there without unduly harsh consequences (see [34-[40].

 

The judge's findings on the ability of the appellant to obtain the necessary documentation are unarguably sustainable when viewed in the context of his rejection of the appellant's core claim"

 

23.   Permission to appeal on the issue of documentation was therefore refused. That has resulted in something of a practical challenge upon remaking, since the findings on documentation are, in the First-tier Tribunal decision, inextricably linked with the findings on internal flight, paragraphs §55 to §59 of that analysis being concerned with whether he can get the document enabling him to get to the IKR without undue hardship. Furthermore, I must confess that for my own part I find the reasoning of the First-tier Tribunal on issues of documentation to be, in crucial respects, in fact wholly unsustainable.

 

24.   The First-tier Tribunal had directed itself to the conclusions in SMO in respect of documentation. It found that the Appellant does not have a CSID, and that he would not be able to acquire one in Baghdad. Nor, in light of its findings on his home area, would he be able to get to his local CSA office to obtain a replacement [§55-56]. He would, however, likely know the relevant details from his 'family book'; if he did not he could obtain the relevant details from family members; if he could not he could get an Arab friend to return to the family home in Gwer and retrieve his passport which would assist him in the redocumentation process [§57]. I concur with Judge Norton-Taylor that this was all - at least at the date of the grant of permission - sound reasoning.

 

25.   The decision however goes on:

 

"58. I find that once the appellant has provided his passport or the volume and page reference of the entry in the Family Book in Iraq, he will be able to apply for a replacement CSID or INID (Iraqi National ID card, which is currently in the process of phasing out the CSID) through his nearest Iraqi Consular facility. In the alternative, he may also apply for a replacement CSID or INID by the use of proxy (or a power of attorney) who can present the family's volume and page reference in the civil register.

 

I find that once the appellant has obtained a replacement CSID or INID from his consulate or via a proxy, the appellant will be able to make the affordable and practical journey from Baghdad to the IKR by land and without a real risk of suffering persecution, serious harm or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh. He may also board a domestic flight between Baghdad and the IKR with a CSID".

 

26.   If, in finding the First-tier Tribunal conclusions to be "unarguably sustainable", Judge Norton-Taylor intended to include these passages, then it is an assessment with which I must respectfully disagree.

 

27.   The main problem is that the First-tier Tribunal has acknowledged the existence of the new INID scheme whilst apparently misunderstanding the conclusions drawn about it in SMO. The Tribunal erred in fact when it concluded that the Appellant would be able to obtain an INID in his home area by proxy: the whole point is that the individual applicant must be present to provide his biometrics before such a card can be issued. Proxies are in this context of no assistance at all. It was therefore incumbent on the Tribunal to reach a decision on whether a resident of Gwer could still apply for a CSID. That involved answering a number of questions. Where is the civil registry for Gwer (looking at the map I consider it likely that it would be Mosul but it remains possible that it falls under Hamdanya or possibly Makhmour)? Given the heavy fighting in that area since 2014 is that office operational? Importantly have the government of Iraq installed a new INID terminal there?

 

28.   A second problem arises in respect of the alternative conclusion that the Appellant could get an identity document from an Iraqi consulate before he travels, thus enabling him to get to the IKR without difficulty. The Tribunal here gave no consideration to the many obstacles in that process elucidated by Dr Fatah over the years in successive country guidance decisions, which can be fairly summarised as excessive bureaucracy, inefficiency and a manifest lack of willing. I note that Dr Fatah's evidence on this matter has latterly found support from the Respondent in that the latest CPIN now concludes that it is "highly unlikely" that an undocumented Iraqi in this country could obtain a new card from the embassy here: Iraq: Internal relocation, civil documentation and returns at [2.6.16].

 

29.   I am conscious that in summarily dealing with the application for permission to appeal Judge Norton-Taylor was hampered by the fact that the grounds were drafted by the Appellant in person, who was at that stage unrepresented. Nor did Judge Norton-Taylor have the benefit of the latest CPIN , which as I have noted, records an important change in the Respondent's position which could have affected the decision on permission: this policy statement was published in June 2020, whilst Judge Norton-Taylor was considering the grounds on the 7 th May. Had he had the benefit of that document I am in little doubt that his permission decision on this point would have been different. Th e Tribunal's findings on the IKR cannot be extricated from its conclusions on documentation, so to that extent I directed that I would revisit the matter in remaking the decision on internal flight. I would not however, and could not, revisit the documentation findings in the wider context of Article 15(b) of the Qualification Directive.

 

 

The Re-Made Decision

 

30.   As if matters were not already complicated enough, the delay in having this matter relisted has meant that yet another of the findings of the First-tier Tribunal has now fallen by the wayside. In SMO the Tribunal held it to be likely that an Iraqi would remember the details of his 'family book', thus enabling him to obtain new identity documents. As I note at my §16 above, this was a finding adopted by the Tribunal. In February 2021 the parties in SMO settled a consent order before the Court of Appeal agreeing that this finding was perverse and unsupported by evidence. Before me Mr Diwnycz accepted that the finding of the First-tier Tribunal to that effect in this case would therefore also need to be set aside.

 

The Evidence

 

31.   The factual basis upon which I embark on this 're-making' is therefore as follows:

 

•          The Appellant is a Sunni Kurd

•          He was born in 1990 and he lived in Iraq until he was 26

•          He is from Gwer, Nineveh governate

•          Taking into account his personal characteristics, and having regard to the security situation in Gwer, there are substantial grounds for believing that the Appellant would face a real risk of indiscriminate violence if returned there

•          He is currently undocumented

•          The Appellant has no connections of any kind to Baghdad and has never been there

•          He has no known relatives abroad to whom he could turn for financial support in the form of remittances

•          He does however still have family members in Iraq and his evidence to have lost touch with them is rejected

•          The Appellant's evidence that he ran a grocery business in Erbil has been rejected

 

32.   Mr Schwenk called the Appellant to give further evidence in addition to these matters. He said that he was illiterate, but could speak Sorani and some English and Arabic. Mr Diwnycz wondered how the Appellant managed to travel if he could not read at all: he said that it was simple he just asked people where he was instead of reading street signs etc. He was able to read numbers.

 

33.   The Appellant maintained that between 2009 and 2014 he had travelled in and around Erbil for work. Asked if he knew anyone there he named Mahmood, his former business partner. He knew many others from the area who he bought from/sold goods to, but not their names: just to say hello.

 

34.   The Appellant said that he has had no contact with any member of his family since the end of 2014. He had heard of the Red Cross - apparently from a HOPO who was cross examining him on a previous occasion - and had tried to seek their help but had found the place closed when he went. He had been told that an office in Preston would be open on a Thursday but when he got there it was shut.

 

Findings

 

35.   Mr Schwenk began his submissions by pointing to section 4.2.1 of the CPIN to submit that as this would be an involuntary removal it would be to Baghdad. It was reasonably likely that on arrival the Appellant would not have any document in his possession other than a laissez-passer, which would be useless once he had landed: as the Respondent now acknowledges, it is "very unlikely" that he would be able to get any kind of useful document in London. This was a proposition with which Mr Diwnycz agreed.

 

36.   The question then arises: is it reasonably likely that he will be stuck in Baghdad without the means to move, ie a suitable identity document? That question arises because of paragraph 11 of the headnote to SMO:

 

As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel.

 

37.   We know that he will not be able to get such a document in Baghdad, because he is not from there [at paragraph 15 headnote SMO]:

 

An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.

 

38.   Next, the matter of whether there is an INID terminal in Gwer, or in the administrative district that serves it. In adjourning this appeal I gave directions that the Appellant produce evidence on the point, since positive evidence that there was such a terminal would, the parties agreed, be determinative of the appeal. Unfortunately Mr Schwenk was unable to offer any information about whether there was currently an INID terminal operational in Gwer. He simply asked me to find, in light of the following evidence in SMO that the new system was being 'rolled out,' that it was likely now in place in Gwer:

 

In respect of the CSID, the position remains as it was before, subject to the introduction of the INID and the gradual phasing out of the old forms of identification. We are satisfied that the CSID is still being issued in parts of Iraq. That is clear from the section 2.4.4 of the EASO report. We consider it to be clear from that report, and from Dr Fatah's evidence about the practice in the IKR, that an individual who is registered in a city in which the INID process has been rolled out would be unlikely to secure a replacement CSID there. The logic which underpins Dr Fatah's evidence is irrefutable, and was implicitly accepted by the respondent at [151] of her closing submissions, which spoke only of the CSID still being issued 'in rural areas'. The Iraqi government wishes to have a more secure identity system and has spent large sums to implement that new system. The implementation is behind schedule. In the event that CSID documents were issued by the CSA offices in which the INID terminals have already been located, that would further delay the implementation of the new system. In the event that an individual CSA office has no terminal, the position is obviously different and it is individuals who are registered at those offices who might be able to secure a CSID by the use of a proxy. We have no list of the CSA offices which do and do not have an INID terminal, however, and any such list would be quickly outdated as the INID programme continues to expand. It will consequently be for an individual appellant who does not have an CSID or an INID to establish on the lower standard that they cannot obtain a CSID by the use of a proxy, whether from the UK or on arrival in Baghdad.

 

39.   In favour of Mr Schwenk's suggestion are the following factors. First there is the point in SMO that the INID programme "continues to expand". It can be inferred from this that there are today more INID terminals than when the panel in SMO heard the evidence in that case over the summer of 2019. Second, Gwer was, and continues to be, the scene of significant instability and violence. It was at one time under ISIL control. We know that ISIL did in places destroy the civil registries. It can be inferred from this troubled recent history that Gwer was the kind of place where a new terminal might have been installed, if for instance the old ones had been blown up by ISIL. That said, the burden of proof lies on the Appellant. Although all he needs to do is establish that it is reasonably likely that a new terminal has been installed in his home area, I cannot, on the bare speculation of Mr Schwenk, be satisfied that this burden has been discharged. Not only do I have no information about Gwer itself, but I have not been told where the relevant civil registry is that might enable me to draw an inference: we know from SMO that urban areas are ahead of the rural, so had the relevant area been, for instance, Makhmour, I may have been inclined to accept that as a city it was likely that a terminal had been installed. In the absence of any evidence at all, I am unable to do so. Accordingly the Appellant has not discharged the burden of proof and shown that a new INID terminal is operational in his home area.

 

40.   I must therefore go on to consider whether he could obtain an alternative form of identity document: the CSID.

 

41.   Mr Diwnycz pointed out that it was for the Appellant to demonstrate that he would endure conditions in Iraq that were unduly harsh, and that as such it was for him to show that he could not get a CSID brought to him at the airport. Mr Diwnycz pointed to the First-tier's negative conclusions in respect of the Appellant's overall credibility, and in particular to its rejection of his evidence that he had lost touch with his family.

 

42.   That was indeed a finding made by the First-tier Tribunal that was undisturbed on appeal. It is not an area of the evidence that I am going to re-open. Accordingly I am satisfied that the Appellant does have family remaining in Nineveh, and that he remains in touch with them.

 

43.   It is reasonably likely that the family in Gwer would be unwilling or unable to give the assistance to the Appellant that he needs? It was the Appellant's evidence upon arrival that his family in Gwer consisted of his parents, two sisters and two brothers. I have had regard to the evidence of Dr Fatah to the effect that it is far easier for male relatives to approach bureaucracy and find that the presence of two adult brothers will be of significant assistance to the Appellant. Their own details would enable an official to quickly locate the Appellants. In light of Judge Meyler's findings there is no reason to suppose that they would be unwilling to assist him. Mr Schwenk questioned the reasonableness of the Respondent basing her case on the proposition that someone in the Appellant's family could travel into Gwer: on the findings of the First-tier Tribunal it was too dangerous for him, so it was likely to be similarly unsafe for his Kurdish family members. He has a point, but no one is asking the Appellant's family to travel to Nineveh. On the findings of Judge Meyer, they are already there. I was not provided with any evidence indicating that it might be particularly dangerous for them to attend the civil registry. Accordingly I find that the Appellant has failed to demonstrate that there is a real risk that he will be unable to obtain a new CSID.

 

44.   I am therefore satisfied that within a reasonable amount of time the Appellant will be able to travel from Baghdad to a safe area in Iraq, namely the IKR.

 

45.   Here we wade into murky waters. That is because both parties before me sought to rely on matters that have already been rejected by the First-tier Tribunal in findings that were undisturbed. As much as the Appellant would like me to accept that he has an unpaid debt to bad people in the IKR, or the Secretary of State would like me to find that he can resume running a grocery business, both of those submissions are dead ends. Judge Meyler rejected, in clear and reasoned findings, the evidence that the Appellant had to borrow money to pay of ISIL, and that he ever ran a grocery stall in Erbil. I should add that those findings appear to be amply supported by the evidence, which was wildly inconsistent and nonsensical on both fronts. The Appellant's evidence about why he needed to borrow money changed dramatically during the course of his claim, and he was unable to name the central vegetable market in Erbil or give a remotely credible account of his business there.

 

46.   I therefore proceed to assess his potential life in the IKR taking into account the following factors, with reference to the guidance in AAH.

 

47.   The Appellant does not, to my knowledge, have any family in the IKR and I consider it unduly speculative to say that his family from Nineveh may already have fled there.

 

48.   For those without the assistance of family in the IKR the accommodation options are limited. He will not be able to get into a refugee camp. Unless he gets a very good job he will not be able to afford the rent in a modern apartment block. He may need to resort to a 'critical shelter arrangement', living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. Life in a critical housing situation will not necessarily be unduly harsh. Whether or not it falls below the standard that we would regard as a 'relatively normal life' - that is to say life without access to basic necessities such as food, clean water and clothing - will depend on the Appellant's income.

 

49.   The Appellant has no relatives abroad to send him remittances (as far as this Tribunal is aware). On the findings of Judge Meyler I am driven to conclude that he has no meaningful contacts in the IKR who could help him get work. The unemployment rate for IDPs in the IKR runs at 70%. As far as I am aware he is entirely unskilled. Those factors all weigh against the proposition that the Appellant will benefit from a regular income.

 

50.   That said the Appellant will be entitled to apply for a grant under the Voluntary Returns Scheme, which could give him access to as much as £1500. That is a significant cushion which could be of great assistance to the Appellant until he is established. The bald statistics on the job market are daunting. The Appellant does however have three important factors in his favour in looking for employment. He is a man. The evidence is that women find it far more difficult to secure employment. He is documented. Without a CSID one cannot take lawful employment, and this no doubt plays a part in the high unemployment figures for IDPs generally. That is therefore a significant advantage that the Appellant has over his peers. He is able and healthy. Taking all of these factors into account, and giving particular weight to the fact that he will be documented, I am unable to find that there is a real risk that the Appellant will find himself living a life in the IKR that is 'unduly harsh'. It is not reasonably likely that a fit and healthy documented Kurdish man would find himself without any work at all for any length of time. I further note that if he needed to he could turn to his family in Nineveh for support, and that with a CSID he would be able to access both NGO and state support.

 

 

Decisions

 

51.   The determination of the First-tier Tribunal contains material error of law and it is set aside to the extent identified above.

 

52.   The decision in the appeal is remade as follows: the appeal is dismissed.

 

53.   There is an order for anonymity.

 

 

Upper Tribunal Judge Bruce

16 th October 2021

 

 

 

 

 

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/PA118362019.html