AA (Iraq) v Secretary of State for the Home Department

A decision-maker must distinguish between documents needed to make a return possible and documents needed to live safely after return. An Iraqi Civil Status Identity Document (CSID) may be essential to access food and basic services. It is not merely a travel document and may not be obtainable automatically after arrival. Regardless of whether return is currently feasible, the decision-maker must assess whether the person has, or can obtain, a CSID reasonably soon. Without family or other support, a continuing absence may create a real risk of destitution amounting to serious harm under Article 3 ECHR. A material issue cannot be postponed indefinitely. An Upper Tribunal decision finally remitting an appeal to the First-tier Tribunal is appealable under section 13 of the Tribunals, Courts and Enforcement Act 2007 and is not excluded as a procedural, ancillary or preliminary decision.

The appellant, an Iraqi national, had a long history of asylum proceedings. His appeal was ultimately heard by the Upper Tribunal as country guidance on Article 15(c) of the Qualification Directive. In a determination promulgated on 30 October 2015, the Upper Tribunal allowed the appeal and remitted the appellant’s case to the First-tier Tribunal for further fact-finding.

Permission to appeal was granted on a reformulated ground concerning the Upper Tribunal’s conclusion that the consequences of lacking a CSID only required consideration where return to Iraq was feasible. The Secretary of State also questioned whether an appeal lay to the Court of Appeal after remittal. Both parties agreed that the country guidance contained an error and that the appeal should succeed on a limited basis. The central issues were the Court’s jurisdiction and whether the CSID issue had to be assessed independently of the feasibility of return.

1. Jurisdiction. The appeal was within the jurisdiction of the Court of Appeal. Where the Upper Tribunal finds an error of law, sets aside the First-tier Tribunal’s decision and remits the case for reconsideration, it has completed its task under section 12 of the Tribunals, Courts and Enforcement Act 2007 in relation to that appeal. It is then functus officio, and its decision is finally dispositive of the appeal. The decision is not a procedural, ancillary or preliminary decision excluded by article 3(m) of the Appeals (Excluded Decisions) Order 2009.
2. VOM distinguished. The Court agreed with the analysis in VOM (Error of law when appealable) Nigeria [2016] UKUT 00410 (IAC) where the Upper Tribunal retains the appeal for the purpose of remaking the decision. In that situation its task is incomplete. The present case was materially different because the appeal had been remitted to the First-tier Tribunal. If paragraph 22(g) of VOM was read as treating such a remittal as merely intermediate, it was an inaccurate statement of the law which the Court could not endorse.
3. CSID and Article 3. The Upper Tribunal erred by treating a CSID as simply a return document and by applying the reasoning in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276; [2014] 1 WLR 1329. HF concerned the absence of a passport or laissez-passer which made return impossible. A CSID is different. It may be essential for access to financial assistance, employment, education, housing, medical treatment, food and basic services, and it is not automatically acquired after return. A person may possess a passport or laissez-passer without having a CSID.
4. Regardless of return feasibility, the decision-maker must assess whether the person has a CSID or can obtain one reasonably soon after arrival. If the person lacks family or other support and is reasonably likely still to lack a CSID when return funds are exhausted, the absence of the document may create a real risk of destitution amounting to serious harm under Article 3 ECHR. The enquiry must be addressed within a reasonable period and cannot be postponed indefinitely.
5. Disposal. The parties agreed that no remittal to the Upper Tribunal was necessary. The Court corrected the country guidance by appending revised guidance, including the CSID guidance in Part C. The appeal succeeded to that limited extent, by consent. Paragraph 170 of the Upper Tribunal’s determination was to be read consistently with the amended guidance.

• Court of Appeal (Civil Division) — In the present appeal, the Court confirmed jurisdiction, corrected the country guidance and allowed the appeal to the limited extent agreed by the parties: [2017] EWCA Civ 944.
• Upper Tribunal (Immigration and Asylum Chamber) — The Upper Tribunal promulgated country guidance on 30 October 2015, allowed the appeal and remitted the appellant’s individual case to the First-tier Tribunal for further fact-finding. Permission to appeal was subsequently granted on a reformulated legal ground.
• Earlier proceedings — The appellant’s asylum appeal was dismissed in 2009. His case was reheard by the Upper Tribunal in 2011 and dismissed. Following further Court of Appeal proceedings, the appeal was remitted to the Upper Tribunal in 2012.