DA (Iraq) v The Secretary of State for the Home Department

This is a renewed application for permission to appeal against a determination of Judge Dawson sitting in the Upper Tribunal Immigration and Asylum Chamber on 25 April 2014.

The claimant was born on 1 July 1985 and is a national of Iraq. He entered the United Kingdom illegally in July 2007 and was arrested and detained.

On 25 July 2007 the claimant made an application for asylum.

On 3 August 2007 the claimant escaped from Oakington Detention Centre and absconded for five years.

On 15 May 2012 the claimant had his substantive asylum interview, during the course of which he gave conflicting accounts of when he had left Iraq and he admitted having lied to the immigration authorities during an earlier interview.

On 16 May 2012 his asylum claim was refused by the Secretary of State on the ground that he had not established a well-founded fear of persecution and was not a refugee within the terms of Regulation 2 of the Refugees or Person in need of International Protection Qualification Regulations 2006. The Secretary of State came to this conclusion mainly because the claimant was unable to provide any details in support of his account and also provided inconsistent accounts, thereby undermining his credibility.

The claimant appealed against that determination. The appeal came before Judge Pacey in the First Tier Tribunal. Judge Pacey decided that the claimant should be granted discretionary leave to remain so as to ensure compliance with Article 3 of the European Convention on Human Rights as the claimant, as she found, was unable to obtain travel documents to return to Iraq. Judge Pacey also held that there would be a breach of the claimant’s Article 8 rights if leave were not to be granted on the basis that because of the failure of the Secretary of State either to remove him or to grant him leave to remain he would remain in limbo, which of itself would amount to a breach of his protected right to a private life.

The central issue in this case as I see it is whether the claimant’s credibility remained an issue in determining whether he could obtain his own identity documents or replacements in order to enable his return to Iraq. That in turn involved the question whether his father had his identity document in Iraq and the question whether he is in touch with or could trace male members of the family who could provide documents necessary for him to obtain identity documents. (The relevant procedures are set out and referred to by the judge of the First Tier Tribunal at paragraphs 20 and 29 of her determination.)

The Secretary of State appealed against the determination of the First Tier Tribunal and it was that appeal which was heard by Upper Tribunal Judge Dawson. The Upper Tribunal judge found that the claimant’s credibility remained material as the two major points in issue were whether the claimant was in possession of identity documents, either by himself or through his father; and whether or not, as I have indicated, he was still in touch with or could trace male members of his family. Those the judge identified at paragraph 17 of his determination as the “core issues” which the First Tier Tribunal had been required to decide.

Upper Tribunal Judge Dawson was not satisfied that the First Tier Tribunal Judge had given adequate or sufficiently clear reasons for the findings she had reached in that regard and he therefore allowed the appeal, set aside the original decision by the First Tier Tribunal and remitted the case to the First Tier Tribunal for reconsideration.

Now there is an application for permission to appeal to this court. Briggs LJ refused permission to appeal, pointing out that this is an application for permission to bring a second appeal and that the application arises from a highly fact-specific conclusion by the Upper Tribunal that the First Tier Tribunal’s fact-finding was flawed by an absence of sufficient or rational reasons for its conclusion; and that the credibility or otherwise of the appellant’s earlier but abandoned case for asylum did not need to be investigated for the purposes of deciding his alternative human rights based case.

Mr Paul Turner, who appears on behalf of the applicant today as indeed he appeared for him before the Upper Tribunal, submits that Briggs LJ was in error or perhaps, to put it another way, insufficiently generous in treating this as a straightforward application to bring a second appeal bearing in mind that the applicant had succeeded before the First Tier Tribunal and only failed before the Upper Tribunal, Sullivan LJ having recognised in the case of JD (Congo) v Secretary of State for the Home Department [2012] EWCA Civ 327 that whilst the second appeals test is a stringent one, it is sufficiently flexible to take account of the particular circumstances of the case, one of which may be the circumstance that the applicant has succeeded before the First Tier Tribunal and failed before the Upper Tribunal. In my judgment that point is well made by Mr Turner and I am content to proceed upon the basis that what Mr Turner has to demonstrate is a real prospect of success of an appeal.

In my judgment, however, an appeal has no realistic prospect of success and bearing in mind that the disposition of the case made by the Upper Tribunal was to remit the matter to the First Tier Tribunal for reconsideration rather than to have reached a final determination, it does not seem to me that there are other compelling circumstances which would render it appropriate for there to be a second appeal.

In my judgment the Upper Tribunal judge was not arguably wrong in holding that credibility remained a material issue as it was highly material to the two questions: whether the claimant was in possession of identity documents; and whether he was in contact with or could trace male family members. The First Tier Tribunal judge had herself in fact recognised that credibility was relevant to those two aspects at paragraph 20 of her determination. As pointed out by Judge Dawson, without making findings on the pre-flight events, whether or not they were now relied upon as grounding an asylum claim, it was not rationally open to the First Tier Tribunal judge to conclude that the claimant’s father might not have retained his identity documents because his son had fled and would not be expected to return.

Likewise, there is, as it seems to me, great force in the observation of the Upper Tribunal at paragraph 19 of the determination that in her conclusion at paragraph 23 that it was reasonable for the appellant to have left his identity documents in Iraq as he was leaving the country clandestinely under the control of the agent, the judge of the First Tier Tribunal appears implicitly to have accepted the credibility of the account of the pre-flight events upon which the claimant no longer relied in order to seek international protection. Like the Upper Tribunal Judge I can I am afraid trace no logical connection between paragraphs 22 and 23 of the conclusions of the judge of the First Tier Tribunal.

For all these reasons, therefore, and bearing in mind that the disposition ordered by the Upper Tribunal Judge was simply that the matter should be remitted for reconsideration rather than reaching a final determination, I am clearly of the view that permission to appeal should be refused.