SI (expert evidence - Kurd - SM confirmed)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 07 May 2008 |
| Neutral Citation | [2008] UKAIT 94 |
| Court | Asylum and Immigration Tribunal |
| Date | 07 May 2008 |
[2008] UKAIT 94
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
Immigration Judge Corke
For the Appellant: Mr J Mitchell QC instructed by Livingstone Brown Solicitors
For the Respondent: Mr Laverty, Home Office Presenting Officer
SI (expert evidence — Kurd — SM confirmed) Iraq CG
1. Failure by the respondent to adduce her own expert evidence cannot imbue expert evidence submitted by an appellant with any greater value than it merits when considered alongside the rest of the evidence.
2. The evidence relating to the official justice system in the KRG falls short of demonstrating that all persons who are tried in that part of Iraq will face a process that would amount to a flagrant denial of the notion of a fair trial: SM and Others(Kurds-Protection-Relocation) [2005] Iraq CG UKAIT 00111followed.
3. The guidance given inSMregarding relocation of a Kurd from the KRG to central or southern Iraq, which was that it can in general be effected without this being unduly harshand without giving rise to a real risk “in all but the most exceptional high profile cases” of their relocation being brought to the attention of [any of the KRG authorities], also remains valid.
4. “ Honour killings” and “blood feuds” are distinct phenomena, albeit they may sometimes overlap in practice.
The appellant is a national of Iraq. He arrived in the UK on 14 July 2000 and claimed asylum. On 5 November 2001 the respondent made a decision to issue removal directions, having refused to grant asylum. On 19 November 2003 an Adjudicator, Mr J G Macdonald, dismissed his appeal. On 23 August 2005 a panel of the Asylum and Immigration Tribunal chaired by Senior Immigration Judge Allen upheld that dismissal. Its decision was reported as SM and Others (Kurds-Protection-Relocation) [2005] Iraq CG UKAIT 00111. Subsequently on April 2007 the Inner House of the Court of Session decided that the Tribunal had erred in law and ordered that the appeal be reheard by a different constitution of the Tribunal: we shall have cause to consider the precise terms of that order later on.
The principal facts relating to the appellant's case are not in dispute. As stated by the Tribunal in SM at paragraphs 14–16 they are as follows:
“14. Mr () had been a member of the PUK until 1995. In 1983 a PUK organiser, Omer Hamakaki had murdered the appellant's uncle, Mulla Omer. When the appellant stopped working for the PUK in 1995 he opened his own business as a hairdresser. His cousin Aso, the son of Mulla Omer, came to visit him on 3 June 2000 and on 10 June he was in his hairdressing salon and Aso was with him. Aso saw Omer Hamakaki pass by the shop and shot him, and fled to the appellant's sister's house. The appellant felt that he also had to run as he feared that Hamakaki's family would take immediate revenge upon him.
15. Both Aso and the appellant's brother were arrested in connection with the murder. The appellant's brother was released. Aso was killed by the family of Omer Hamakaki and his relations and the PUK, according to the appellant's answer to question 24 at interview. The Hamakaki family belong to the Jaff tribe which the appellant said was present throughout the whole of Iraq. He also claimed that although Aso had been killed by Hamakaki's family, the tradition of revenge killing had not been satisfied, and he was perceived as being involved in the murder.
16. He produced various documents including a letter issued by a PUK commander indicating that he was involved with Aso Omer in the killing of Mr Hamakaki, and also describing the appellant and containing instructions that he be arrested.”
There were, to be precise, two documents evidencing an arrest warrant from a PUK Commander of Dukan Sector (5) dated 14 June 2000. One was addressed to “the respective General Commander Force of H.P.K.” and referred to Aso as Hamakaki's assassin and to his having stayed beforehand for 3 days at the appellant's house. It added:
“The assassination took place in front of his shop. This indicated that he was involved with Mr Aso Omar for the assassination of our comrade Mr Omer Hamakaki. Therefore, we request his arrest by your force, police and Asayeh forces in order to bring him for investigation”.
The second document, stamped by the same commander and bearing the same date, was addressed to “all respective commanders” and instructed the arrest of the appellant “…because of his involvement with the accused person Aso Omar for the assassination of comrade Omar Hamamaki on 10 June 2000.”
At the hearing Mr Mitchell QC on behalf of the appellant sought to adduce more recent evidence in the form of a statement from the appellant dated 3 October 2007 relating to his past experiences in Iraq. In the course of giving further details about the nature of the blood feud in which he had become involved, the appellant refers to Aso having killed Omer Hamakaki with a Kalashnikov. The appellant says he kept a gun in his house, but did not take it out with him. Aso, however, “used to carry a weapon with him all the time, first of all to protect himself and secondly to try and eventually take revenge for his father”. Mr Laverty for the respondent opposed admission of this further statement on the grounds that it had not been served in accordance with Tribunal directions and the respondent was not prepared to deal with it at this late stage. Having considered the matter, we decided not to admit this evidence. This appeal has a long history and it has been known to the appellant and his representatives for some considerable time that there was to be a further hearing on the date fixed. There was nothing said in the application to the Inner House of the Court of Session to indicate that the appellant wished to adduce further evidence about his past experiences. Nor was anything mentioned after specific directions concerning the nature of this hearing had been given by Senior Immigration Judge Mather on 21 August 2007. None of the matters outlined in the appellant's statement falls into the category of fresh evidence which he could not have been reasonably expected to adduce earlier. It has been the clear position for some time that the historical basis of the appellant's appeal was not in dispute and in our view it would subvert the purpose of the Inner House of the Court of Session's order if we were to admit further evidence that could have the effect of causing us to revisit the basics facts relating to the appellant's personal history. We would add that, even had we taken this recent statement into account, we would not have considered that it markedly added anything to the appellant's previous account. In particular we do not think that the extra detail, that the appellant knew that Aso carried a gun all the time (one purpose being in case he had a chance to revenge his father's death), would play any significant part in what happened to the appellant on return.
We did, however consider it appropriate to admit further background evidence from both parties relating to the situation in Iraq. It was necessary for us to do so because our task is to assess whether the appellant faces a real risk of serious harm or ill-treatment as at the date of hearing before us. Recent background evidence, along with the evidence of the country experts, is highly relevant to that assessment.
So far as the law is concerned, we confirmed at the outset with the parties that there was no issue of exclusion and that the appellant did not seek to argue that he faced a real risk of persecution for a Convention reason: his case stood to be considered solely in terms of whether he was eligible for humanitarian protection and whether he faced a real risk of ill-treatment contrary to Article 3 of the ECHR. We must decide whether there are substantial grounds for believing that if returned the appellant would be exposed to a real risk of serious harm or ill treatment. Subject to what we have said above we must consider the appellant's circumstances in the light of the evidence as a whole, including that we had from several experts. One other matter we discussed with the parties concerned whether, given that the respondent had not raised the issue of internal relocation before the Tribunal in SM it was open to her to do so now: we shall come to that after we have dealt with the issue of risk to the appellant in his home area.
The materials before us included the reports that were before the Tribunal in SM (from Dr Rebwah Fatah, Ms Sheri Laizer and Mr Joffe), the Tribunal's summary of the oral evidence of Dr Fatah and Ms Laizer as given in SM, together with reports from Dr George and Dr Fatah written post- SM. In this determination we propose to elaborate only on the further expert evidence which has been produced post- SM.
Dr George's report of 14 November 2007 describes the population breakdown of Iraq as being 60% Shia, 20% Sunni Arabs and 20% Kurd. Family, extended family and tribe were the fundamental units of Iraqi society. The Jaff, whose numerical strength is estimated as up to three million, is the largest Kurdish tribe. He describes tensions between these three main communities as having heightened, plunging Iraq into the early stages of a civil war. On the strength of UNAMI figures for January-March 2007, he states that an estimated 54% of the Iraqi population is living on less than US$1 per day, among whom 15% is living in extreme poverty (less than US$0.5 per day); the unemployment rate had risen to about 60%. He details the figures of those killed in the conflict and describes the various protagonists in the conflict, including the main insurgent groups. He also analyses both the situation in the KRG...
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