Iraqi-Kurdish journalist wins appeal for reconsideration of asylum application

The appellant argued that both the First-tier Tribunal (FTT) and the Upper Tribunal (Immigration and Asylum Chamber) (UT) “materially erred in law” in their approach to the issue of internal relocation from Iraq to the Iraqi Kurdish Region (IKR), following which the Home Secretary conceded that the appeal should be allowed.

Lord Brodie, Lord Drummond Young and Lord Glennie heard that the appellant “AJR”, a journalist from Kirkuk, arrived in the UK in January 2016 and claimed asylum, but his application was refused by the Home Secretary.

He appealed to the FTT, on the basis that he was a refugee in terms of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 or, alternatively, that he was eligible for a grant of humanitarian protection as that is defined within paragraph 339C of the Immigration Rules, and that his removal to Iraq would be contrary to articles 2 and 3 of the European Convention on Human Rights. 

The FTT accepted that, by reason of his work as a journalist, the appellant would be at risk of harm from certain elements in Kirkuk should he be required to return there, but the tribunal dismissed his appeal after finding that he could be returned to the IKR, where he would not be at risk.

The FTT therefore found that the appellant had failed to satisfy it (a) that he had a well-founded fear of being persecuted if he were returned to Iraq, (b) that he had a well-founded fear of serious harm such as to qualify for humanitarian protection as defined in paragraph 339C of the Immigration Rules, or (c) that there could be a breach of ECHR articles 2 or 3.

The appellant appealed to the UT, arguing that the FTT had “erred in law” in not applying the country guidance set out in AA (Article 15(c)) Iraq CG [2015] UKUT 544. 

In particular, it was argued on his behalf that the judge had failed to enquire about the documentation required to facilitate the return of an individual to the IKR and factors concerning relocation to Baghdad, including the availability of a Civil Status Identity Document (CSID), ability to speak Arabic and family support.

At the hearing before the UT it was acknowledged on behalf of the respondent that the decision of the FTT failed to set out the relevant factors for return to Baghdad, but the refusal of the appellant’s claim was primarily on the basis that return to Baghdad would only be a transitional move for onward travel to the IKR. 

It was submitted on behalf of the appellant that he would be “stranded” in Baghdad as his “laissez passer” - the document issued by the Iraqi authorities allowing a person such as the appellant to return to Iraq - would be taken from him upon arrival, and the country guidance was silent about the documentation required for onward travel. 

But the UT concluded that the FTT made no material error of law and dismissed the appeal, having found that the appellant was an educated young man who could speak Kurdish, Arabic and some English, who would be able to obtain employment, who had family in Iraq, and who would also be able to obtain the necessary travel documentation to relocate from Baghdad to the IKR.

The appellant appealed to the Court of Session on the basis that the UT judge had “misunderstood or misapplied” the revised country guidance issued by the Court of Appeal in AA (Iraq) in relation to internal movement from Baghdad to the IKR, and that there were “insufficient findings of fact” by the UT in relation to that country guidance.

It was submitted that both the UT judge and the FTT judge “materially erred in law” in applying the test of internal relocation from Iraq to the IKR.

In the course of the appeal hearing, having heard the submissions made on behalf of the appellant, counsel for the respondent conceded that the appeal should be allowed and accordingly that the decision of the UT should be set aside with the case remitted to the UT with directions for its reconsideration.

The appeal judges issued guidance for consideration by the UT.

In a written note, Lord Brodie said: “In the present case when it was before the FTT and the UT, consideration of the question as to whether a requirement for relocation to the IKR would be unduly harsh, appears to have focused on the need for documentation for the purpose of travel, the assumption being that if the appellant could make his way to the IKR all would be, if not well, at least tolerable. 

“It appeared to us that that approach is rather to ignore other difficulties (in obtaining assistance from the State and obtaining employment and perhaps accommodation) which the appellant may face consequent on inadequate documentation, coupled with the absence of immediate family support.

“We have in mind the importance of having a CSID and the potential difficulty of obtaining it, particularly where the appellant would be at risk in his home Governorate and may be unable to enlist family assistance.

“The FTT assumed that the appellant would be able to obtain employment in the IKR. Clearly that is of importance if the appellant is to be taken to be likely to be able to support himself in an area where he would appear to have no family, and therefore no help from that quarter.

“Because the ability to secure employment is important the question arises as to what documentation might be required in that connection (a matter addressed in the following paragraph of this Note under reference to the now current country guidance).

“This would seem to point to a need to make enquiry about a number of matters before it could be concluded that requiring the appellant to relocate to the IKR would not be unduly harsh. That enquiry might begin, but not necessarily end, with consideration of how likely it is that the appellant will be able to acquire a CSID.”