DH (Risk-IMIK-KAA)
| Jurisdiction | England & Wales |
| Judge | G Warr,Chairman |
| Judgment Date | 05 November 2002 |
| Neutral Citation | [2002] UKIAT 5099 |
| Date | 05 November 2002 |
| Court | Immigration Appeals Tribunal |
| Docket Number | APPEAL NO HX42030-2001 |
[2002] UKIAT 5099
IMMIGRATION APPEAL TRIBUNAL
Mr G Warr (Chairman)
Mr N Kumar, JP
Mr A Smith
APPEAL NO HX42030-2001
DH (Risk-IMIK-KAA) Iraq CG
The appellant, a citizen of Iraq, appeals the determination of an Adjudicator (Mr N P Dickson) who dismissed his appeal against the decision of the Secretary of State to refuse his application for asylum.
Mr B Caswell, of Counsel, instructed by Parker Bird, Solicitors appeared for the appellant. Mr J McGirr appeared for the Secretary of State.
The papers were in a poor state of preparedness. Mr McGirr had not got a bundle from the appellant apparently but was able to make do with the material that had been placed before the Adjudicator. A skeleton argument was handed in after the commencements of proceedings. Authorities are referred to in that skeleton without any reference being given and without copies being provided in breach of practice direction number 4, paragraph 8, reported at [2001] Imm. A.R. 172. Mr Caswell stated that he did not intend to refer to any authorities. It must be clearly appreciated that the service of skeleton arguments this late in the day is of no assistance to anyone. (In fact copies of authorities reached us after the hearing, they had been faxed late the previous afternoon). An additional feature of the case is that the grounds of appeal are more or less illegible.
The Chairman who granted leave did so on a limited basis. He observed that the Adjudicator had found that the appellant could safely live in an area controlled by the KDP or the PUK but that he did not consider whether internal relocation would be unduly harsh.
The appellant was born in 1966. He had joined the Iraq army as a soldier in 1985 and had received serious injuries during chemical bombings in 1988. He had left the army in 1991. During the Kurdish uprising that year he had been arrested by Iraqi security services and taken to Baghdad and detained for 40 days during which he was seriously ill-treated. The Secretary of State in paragraph 11 of the refusal letter noted that the appellant had stated that the reason for his arrest was because he had left his identification card at home and that he did not consider that this isolated incident had anything to do with his current asylum claim.
He escaped and joined the Islamic Movement of Iraqi Kurdistan (IMIK). In 2001 he decided to leave IMIK. IMIK attempted to persuade him to change his mind and he was put in prison for 10 days. The appellant was of the view that IMIK would not allow him to leave the party as he knew too many secrets. He escaped from prison with the help of a friendly guard. He went to stay with his father. IMIK visited his father while the appellant was in hiding in the house. He then decided to leave Iraq.
The respondent was not represented before the Adjudicator. The appellant gave evidence. The Adjudicator had before him documentary material including a report from a GP, Dr Clowes, and expert reports – the same reports that are relied on before us. The Adjudicator's conclusion is expressed as follows: he refers to IMIK as IMK:
“18. I am prepared to accept that in the main the appellant is a credible witness although I do consider that he has exaggerated the events since he decided to leave the IMK in 2001. There are a number of discrepancies in the various accounts he gives of events in Iraq until that date. I have however taken into account the report of Dr Clowes of 20 February 2002. He suffered severe injuries during the bombing in 1988 and he has many scars from that event although no scars remaining from the injuries whilst in detention in 1991. The appellant suffered from a poor memory since his detention. He has difficulty remembering simple things such as his telephone number and he does not sleep well. Dr Clowes considers that “memory loss is a common manifestation of depression and post-traumatic stress, following any severe life event which would include being involved in an explosion or being tortured whilst in detention”. I accept Dr Clowes' report and have taken this into account in respect of certain discrepancies in the period up to August 2001. The appellant suffered horrifically from the Iraqi government in 1991 and during the chemical bombings in 1988. He received inhuman treatment while he was in detention. However, in order to consider his claim for asylum he must have regard to the present position in the KAA which is set out in the CIPU (paragraphs 3.7 to 3.22 and 4.5 to 4.9 and pages 30 and 41 which deal with the IMK).
19. In 1995 the appellant worked for the IMK military as a commander of a small group of freedom fighters. In August 2001 he decided to leave the party and I can accept that efforts were made by the IMK for him to stay. ON balance I am prepared to accept that the IMK detained the appellant who then managed to escape with the assistance of the guard. However I consider that if the appellant had been an important prisoner whom the IMK intended to transfer to their main prison near the Iranian border, there would have been more security arrangements. After the appellant said he escaped from prison, he went to his house and was speaking to his wife when IMK guards kicked down the door of his house and again he managed escape over a wall. He was staying at his father's house in New Halabjah when the IMK guards came again and did not search the house while he was hiding inside. I consider that if the appellant was an important prisoner who had escaped from detention and had run away from his own house while they kicked down the door, the IMK would have made efforts to search the house of his father.
20. I am not satisfied that the appellant was in possession of such important secrets that the IMK were not prepared for him to leave. The arrest and capture of seven freedom fighters and their subsequent sale to the Iranian secret agents was probably not too surprising bearing in mind that the IMK receive aid from Iran and other Islamic countries (CIPU page 3 or 41). The sale of bullets and ammunition to the KDP happened some three to four years before the appellant left the IMK. The passage of time would not have made this incident significant. Finally, in his evidence the appellant said that the opposition did not know that the IMK were in possession of a valuable rocket and again I do not consider that this is a significant secret.
21. I accept that the appellant has a well founded fear of persecution in the IMK area of influence and there is a risk of ill treatment if he returned. In order to succeed on the asylum claim, the appellant would have to show that there is nowhere in the KAA of northern Iraq where he can safely live. It seems to me quite clear that he could easily move to a different part of the KAA in which to live which is either under the control of the KDP or the PUK if he feared difficulties in ensuing yet again from the IMK. I do not consider that it is likely that the IMK will continue to pursue him through the KAA in view of my findings. I do not consider that he is sufficiently important for them to pursue him into another area. The reports from Amnesty International and the Human Rights Watch confirm that since 1991 some 94,000 Kurds and other non-Arabs have been expelled from Kirkuk and other areas in Iraq to KAA. While the CIPU report does state that the IMK has offices in the DKP and the PUK areas of control, the IMK have splintered in 2001 and dissident factions have emerged (CIPU 3.22). While I have taken into account the objective evidence and in particular Dr O'Shea's report, in my view there is no reason why the appellant could not live safely in areas of the KAA not controlled by the IMK.
22. Insofar as the human rights appeal is concerned, I agree with the respondent's conclusion that none of the articles within the ECHR are applicable in this case. For the reasons that I have already set out, there is certainly no evidence that his life will be at risk if returned to the areas of Northern Iraq controlled by the KDP and the PUK and therefore no potential breach of Article 2. There is again no reliable evidence that he would be subjected to torture or inhuman or degrading treatment if returned to these areas and therefore Article 3 is not applicable.
23. Mr Kooner also relied on Article 5. Article 5 provides for the right to liberty and security of person and that no one shall be deprived of his liberty save as in certain circumstances and in accordance with the procedure prescribed by law. In considering such rights the burden of proof is upon the appellant to show that there is a reasonable likelihood for believing there is a risk of exposure of human rights being violated on his return to northern Iraq. For the reasons I have set out, I do not consider that Article 5 is relevant.
24. Accordingly the asylum appeal is dismissed as is the human rights appeal for the...
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