AM (IWCP – Conditions in Mosul)
| Jurisdiction | England & Wales |
| Judge | Vice-President |
| Judgment Date | 22 September 2004 |
| Neutral Citation | [2004] UKIAT 263 |
| Date | 22 September 2004 |
| Court | Immigration Appeals Tribunal |
[2004] UKIAT 263
IMMIGRATION APPEAL TRIBUNAL
Mr J Barnes (Vice-President)
Mr A R Mackey (Vice-President)
Mr S L Batiste (Vice-President)
For the Appellant: Mr T Weisselberg.
For the Respondent: Mr P Jorro, instructed by Messrs Elder Rahimi.
AM (IWCP — Conditions in Mosul) Iraq CG
The Respondent is a citizen of Iraq. The Appellant appeals, with permission, against the determination of an Adjudicator, Mr T O'Flynn, allowing the Respondent's appeal against the decision of the Appellant on 22 August 2003 to refuse leave to enter and refuse asylum.
This appeal was listed before the Tribunal with two other cases in order to provide the opportunity for the Tribunal to assess comprehensive evidence and submissions, and give country guidance on a variety of issues relating to Iraq of general relevance. The three appeals were heard together but separate determinations have been prepared in respect of each. The lead case of the three is GH (Former KAZ – Country Conditions and Effect) Iraq CG [UKIAT] 0000248 in which the Tribunal's general conclusions on many of the issues raised are set out in detail. We adopt GH, with which this determination must be read, and deal here with the specific issues relating to this Respondent and with the matters arising therefrom that have not been addressed in GH.
The Respondent's claim can be summarised as follows. He is a Kurd who was born in Gouwer in Northern Iraq near to Mosul. He left school in 1987. From 1991 he undertook three years of military service. Thereafter he opened his own bakery. His family had a history of political activity against the Iraqi regime. His brother, [], was an activist in the banned Iraqi Workers Communist Party (IWCP). Its aims were to establish a socialist state and it campaigned against Islamic fundamentalists and was in conflict with the main groups in control of the Kurdish held areas.
The Respondent himself became active in IWCP in 1999. He belonged to a three man cell, the other two members being Yousef and Sabah. The Respondent distributed leaflets and put up posters for the organisation. On 17 December 2002 he was at his bakery when he heard that Yousef had been detained. He sent a message to Sabah but received no reply. He went into hiding at his uncle's house in Mosul. On 19 December he heard that his own home had been raided by the authorities. He feared that his membership of the IWCP cell had been identified. His uncle helped him to find an agent to get him out of Iraq. He left the country on a lorry on 22 December 2002 and arrived in the UK on 7 January 2003, making a claim for asylum on the same day.
There has never been any challenge to the credibility of the Respondent's claim. The Adjudicator therefore concluded in paragraph 6.2 of the determination
“I find that [] is an Iraqi Kurd; that he was a member of an IWCP cell; that his home was raided; and that he feared persecution from the former Iraqi regime.”
However by the time the appeal came for hearing before the Adjudicator on 11 November 2003, the Saddam regime in Iraq had fallen. The Adjudicator assessed the objective evidence before him in the following terms.
- In August 2003 the UNHCR noted that the prevailing conditions in Iraq are characterised by an absence of law and order in many parts of the country. UNHCR is not yet promoting voluntary returns. They advise states to be mindful of the possibility of persecution emanating from non-state agents, particularly given the absence of effective national protection in Iraq. Similarly, atrocious forms of past persecution should favourably be taken into account in the determination process. 7.3 Since August 2003, the security situation in Iraq has not improved. Commentators have suggested that, in spite of the appearance of the Interim Advisory Council, in reality there is a political and security vacuum in Iraq. There are daily reports of attacks on coalition forces. ICRC has, very unusually in such situations, closed its Baghdad and Basra offices after a car bomb at their headquarters killed 12 people. In August 2003, 22 people were killed in a car bomb attack on the UN headquarters in Baghdad. As a result, in September 2003, the UN cut the number of its international staff in Iraq, leaving fewer than 50 foreign employees in the country. There is much evidence to show that the coalition forces are not able to secure that they are effectively protected, let alone a position to offer protection to Iraqi civilians. The attacks are not confined to the coalition forces: radical Islamist groups have threatened people whom they perceived as presenting an obstacle to their policies. It is estimated that thousands of Iraqis have been killed since the end of the war. 7.4 The CIPU report (August 2003) suggests that persons within the former Kurdish autonomous zone (KAZ) who have a localised problem can safely and reasonably relocate within the former KAZ to the Kurdish dominated areas outside of the former KAZ or elsewhere. The KDP and the PUK are in de facto control of the KAZ and are considered capable of offering protection to those who reside in their respective territories and there is a system in place to provide such protection. In September 2003 a car bomb exploded in the Iraqi Kurd region, killing 1 and injuring 47 7.5 With regard to the IWCP, its relationship with the official Kurdish parties has been strained over the years. It is not being allowed to operate in the Kurdish controlled area of Iraq. The organisation's activities have been banned by the KDP. It is the only party which had no office, no radio station and was not allowed to publish a newspaper (although the organisation published papers which were distributed in secret). The secret police of the KDP keep the IWCP under constant surveillance and have arrested their activists. In the past, the regional government of Kurdistan (which represented both the KDP and the PUK) have backed the Islamists against the IWCP.
Given this assessment of the objective evidence, the Adjudicator then went on to state his conclusions, which can be summarised as follows.
- The Respondent, when he came to the UK to seek international protection had a well founded fear of persecution from the Saddam regime. The Adjudicator had to consider whether in the light of the current circumstances and the overthrow of the Saddam regime that fear is still well founded 2. IWCP represents a political philosophy that is outside the mainstream policies of the activist groups in Iraq. Historically, it has been disliked by the radical Islamists, who are presently seeking to entrench and spread their support. From the objective material it is clear that anyone who is openly flouting radical Islamic principles (such as the selling alcohol) is being threatened by the Islamists. The IWCP was equally seen by the Baath regime as presenting a real threat to their power base in Iraq and the incidents of persecution under the Saddam regime are well recorded. 3. The Respondent remains an activist within IWCP and cannot be expected to relinquish his ideals. If he were to go to Baghdad and continue his activities, there is a real danger that Islamists and other groups opposed to IWCP would pose a real threat to him. 4. The coalition forces are not in a position to protect themselves or the international organisations, let alone Iraqi individuals who fear persecution. 5. The Respondent could not go to the KAZ because the KDP and the PUK have been traditionally strongly opposed to the IWCP. They would offer some reasonable protection to their own within their region but that would not include members of IWCP.
The Adjudicator then, prior to allowing the appeal both in respect of asylum and Article 3, summed up his conclusions in these terms.
- Taking into account all of the above, I am sure that this [Respondent's] fears of persecution as a member of the IWCP may well be realised if he is returned. He is a member of the IWCP whose home has been raided. He is known therefore as an activist. He remains an activist. As such, he is vulnerable wherever he goes in Iraq. He cannot call upon the coalition forces for protection. He cannot go to the KAZ or any other Kurdish dominated area and seek protection for reasons I have outlined above. For these reasons I do not consider that “internal relocation” is a viable option for [].
The concise grounds of appeal state as follows.
- It is respectfully submitted that the Adjudicator has erred in his determination in failing to cite the source of the objective evidence that a member of the Iraqi Workers Communist Party would be liable to persecution at the present time in Baghdad (paragraph 8.4 of the determination) or in the Kurdish Autonomous Zone (paragraph 8.6). Since we do not have the sources, we cannot consider any such objective evidence 2. It is again submitted (as was stated by the Respondent at the hearing, paragraph 8.3 of the determination refers) that the coalition forces are taking steps to control the actions of activists in the Baghdad area, which, it is submitted, would minimise any possible risk to an IWCP member from Islamic extremists.
Therefore the determination cannot stand.
Permission to appeal was granted so that “the parties can identify the objective material referred to in the grounds of appeal and relied on by the Adjudicator. Thereafter it can be reviewed by the Tribunal together with the determination”.
Mr Weisselberg accepted he had to show there was an error of law in the determination and specifically that the Adjudicator's findings were perverse. He relied upon the written submissions made concerning the...
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