Case No. UKUT-00544-(IAC)

205. The Appellant is Kurdish and comes from Kirkuk, which is one of the contested areas of Iraq. He would face an Article 15(c) risk if he returns there. 206. However, the Respondent has confirmed that the Appellant would be returned to Baghdad city. There is no evidence that the Appellant has access to a current or expired Iraqi passport, or a laissez-passer, and we conclude that he does not. In all the circumstances we find that he will not be returnable until he is able to supply sufficient documentation to the Iraqi Embassy in London to enable it to provide him with a passport or a laissez passer. This will only occur if he can provide a copy of a CSID or Nationality Certificate. His return is, therefore, not currently feasible. 207. Given that the appellant’s return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraphs 169 and 170 above, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation and that an applicant should not be precluded for pursuing a claim to international protection in circumstances where the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person’s actual return unfeasible. 208. The appellant’s legal advisors were not to know our findings on this issue at the time of presenting the appellant’s appeal, and we have heard no submissions on the issue of whether, despite it not being feasible to return the appellant, it is said his circumstances are such that he is entitled to humanitarian protection. It is no answer to this, we think, for us to simply request the parties to make submissions on this issue in writing. This would cause prejudice to the appellant not of his own making. There are matters of factual dispute such as, inter alia , the appellant’s claimed inability to speak Arabic; the whereabouts of certain of his family members; and (possibly) his ability to enter and remain in the IKR as longer-term alternative to Baghdad, which require resolution in these proceedings. Although the appellant’s legal representatives chose not to call him to give oral evidence before the Upper Tribunal, the significance of the matters of fact still in dispute could not have been fully appreciated, and certainly was not by the Tribunal, until the ‘Country Guidance’ had been formulated. Had it been so appreciated we have no doubt that not only would the appellant have been called to give evidence but Dr Fatah could also have been asked to provide evidence on matters relevant to these issues; for example, the likelihood of, and extent to which, the appellant would have been taught Arabic as part of the education process that he accepts he undertook in Iraq. 209. The Tribunal last undertook a fact finding exercise in relation to this appellant as long ago as April 2011 i.e. over 4 years ago. Whilst the findings of fact made by Designated Judge Wynne have been preserved, he did not make findings on all of the matters that have subsequently become relevant to assessment of the appellant’s claim. It is equally clear that as a consequence of the passage of time the situation in Iraq for the appellant’s family may have changed. Findings are required in this regard. 210. In light of all that we have said above, we conclude that the most appropriate course, given the extent of the fact finding necessary in this appeal, is to remit the matter to the First-tier Tribunal for it to make the further necessary findings of fact. The Tribunal is hereby directed to thereafter apply the relevant Country Guidance. Signed: Upper Tribunal Judge O’Connor Paragraph 168, 169 and 203 of this decision have been amended pursuant to Rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008.