Gardi v Secretary of State for the Home Department (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Sir Martin Nourse,Lord Justice Ward |
| Judgment Date | 24 May 2002 |
| Neutral Citation | [2002] EWCA Civ 750 |
| Docket Number | Case No: C/2002/0193 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2002 |
[2002] EWCA Civ 750
Lord Justice Ward
Lord Justice Keene and
Sir Martin Nourse
Case No: C/2002/0193
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr N Blake Q.C. and Mr R Husain (instructed by Gill and Company, London WC1X 8PQ) for the appellant
Mr R Tam (instructed by Treasury Solicitor, London SW1H 9JS) for the respondent
Introduction:
This appeal from the Immigration Appeal Tribunal ("IAT") raises a novel point about the meaning of "refugee" in Article 1 of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol. That is not the only issue, for complaint is also made by the appellant about the procedure adopted by the IAT in dealing with this case, but it will be convenient to deal with the main issue about the Convention before turning to the procedural point. Permission to appeal to this court was granted by the IAT itself.
The Facts:
The appellant, Mr Azad Gardi, is a national of Iraq. He is ethnically a Kurd. He claims to have arrived in the United Kingdom on 8 August 2000 hidden in a lorry. He had no valid travel documents and was an illegal entrant. He claimed asylum by post, but his claim was refused by the respondent on 7 January 2001.
By a notice dated 12 January 2001 Mr Gardi was informed that directions had been given for his removal as an illegal entrant. The notice stated:
"Directions have now been given for your removal from the United Kingdom by scheduled airline to Iraq, at a time and date to be notified."
He appealed to a Special Adjudicator under section 69(5) of the Immigration and Asylum Act 1999 ("the 1999 Act") on the basis that his removal in pursuance of the directions would be contrary to the 1951 Convention. His appeal was heard on 12 April 2001 and decided by a determination promulgated on 27 April 2001.
Mr Gardi had lived in the northern part of Iraq within the Kurdish Autonomous Region ("KAR"), also referred to as the Kurdish Autonomous Zone ("KAS") and the Kurdish Autonomous Area ("KAA"), an area which borders upon Iran, Turkey and to a limited extent Syria. That region had been granted considerable devolved powers of internal self-government by a statute of 1975, but violent conflict between the Iraq government and the Kurds continued. Since the 1991 Gulf War, the KAR has benefited from the Western-imposed "no-fly zone". The evidence showed that the KAR was not a single unified area but rather one where different parts were controlled by the Kurdistan Democratic Party ("KDP"), the Patriotic Union of Kurdistan ("PUK") and to a lesser extent the Islamic Movement for Iraq Kurdistan ("IMIK"). The KDP and the PUK had fought one another from 1994 until a cease-fire in 1998, but relations between them remained strained.
Mr Gardi put forward two bases for claiming that he had a well-founded fear of persecution for a Convention reason, so as to bring himself within the scope of that Convention. The first was that he had avoided taking part in military service with the Iraqi government, because he did not want to fight his own people. That meant that he would now be shot by the Iraqi authorities if caught. Secondly, he claimed that he was at risk from the KDP because he was a supporter of the PUK. He had been a telephone operator for the PUK and had been detained for three years by the KDP, during which time he had been tortured.
The Special Adjudicator in her determination did not accept that the appellant's claims were credible. It is unnecessary for present purposes to go into detail about her reasoning. She concluded that he did not have a fear of persecution "in his own home area … no question of internal flight arises". Para. 8.2.
However, she then turned her attention to the removal directions themselves. It had been submitted on behalf of the appellant that those directions would nonetheless put him at risk of persecution because there was no method of direct travel to the KAR, the appellant's home area in Iraq. The only scheduled flights to Iraq were to Baghdad, which was of course controlled by the Iraq authorities. The Special Adjudicator had before her a report approved by the then Home Office Minister, Barbara Roche, on 26 March 2001, which reads as follows:
"ENFORCED RETURNS TO NORTHERN IRAQ
The government recognises that there may be certain people from northern Iraq who are in need of international protection under the terms of the 1951 United Nations Convention relating to the Status of Refugees. However, there are also some asylum seekers from that region who, after careful consideration of their application, do not appear to meet the criteria set out in the Convention. The Office of the United Nations High Commissioner is on record as saying that it would not object to the return to northern Iraq of asylum seekers from that area who have been found through fair and objective procedures not to be in need of international protection.
To that end, the Government is in the process of exploring the options for returning Iraqi citizens of Kurdish origin to the northern part of Iraq, and these arrangements will be used to return such Iraqi nationals who do not qualify for leave to enter or remain in the United Kingdom."
On this basis it was submitted on behalf of the Home Secretary to the Special Adjudicator that an unsuccessful Kurdish asylum-seeker would not be sent back through Baghdad but would be returned under the supervision of British officials to ensure that the asylum-seeker reached northern Iraq safely. The Special Adjudicator, however, was not persuaded by this. She noted that the appellant had been active in the PUK. He was also subject to a new law penalising those who left Iraq illegally. There were frequent police checks in Iraq on major roads. She concluded:
"I find that if the appellant is returned to Iraq by Baghdad there is a real risk that the appellant would be subject to this new law. The appellant's Kurdish background would then make the probable prison term unduly harsh at this time. It is possible that return to Kurdistan may be safe for persons such as the appellant in the future, but at present I find that there is a real risk of significant harm amounting to persecution to this appellant if he is returned to Iraq at present by Baghdad." (para. 8.7).
Consequently she allowed the appeal.
The IAT's Decision:
The Secretary of State for the Home Department appealed from that decision to the IAT, which listed the appeal along with 9 others, all involving asylum claims by ethnic Kurds who had come from the KAR. It treated Mr Gardi's appeal as the test case for determining the effect of the inability to return such an asylum-seeker to the KAR at present, when there was currently no means of getting such a person to the KAR save by scheduled flight to Baghdad. In that context it noted that there was no challenge to the Adjudicator's finding that there was a well-founded fear of persecution in parts of Iraq under Saddam Hussain's control.
Citing the House of Lords' decision in Adan v Secretary of State for the Home Department [1999] AC 293, the IAT, presided over by Collins J., emphasised that a person could only be a refugee if he was outside the country of his nationality owing to a well-founded fear of persecution for a Convention reason. If he was not, it was unnecessary for him to be provided with surrogate protection. Then the IAT dealt with the situation where there was a well-founded fear of persecution in part of a person's country but not in another part. It noted that no question of internal flight arose in this case, since there was no fear of persecution in Mr Gardi's home area. It was critical of the way in which the removal directions had been drafted in the present case, referring only to Iraq rather than to the KAR, but it was prepared to regard the assertion by the Secretary of State's representative that Mr Gardi would not be returned by way of Baghdad as binding on the Secretary of State. In those circumstances, it concluded that Mr Gardi was not a refugee since he had failed to establish any real risk of persecution.
The submissions:
On behalf of the appellant, Mr Blake Q.C., accepts that, to be a refugee under the Convention definition, a person must satisfy both limbs of Article 1A(2). He must show that owing to a well-founded fear of persecution for a Convention reason he is outside the country of his nationality; secondly he must show that he is unable or, owing to such fear, he is unwilling to avail himself of the protection of that country. On the first limb, it is emphasised that one need not show that one left that country because of such fear: it is enough that there is currently a well-founded fear of persecution. It is contended that the appellant has such a current fear. Two arguments are in essence put forward in support of that contention: first, Mr Blake submits that the court must look at the whole of the country in question in order to determine whether there is a well-founded fear of persecution, at least where the state is the persecutor or one of the persecutors. The question is not to be decided by considering whether such a fear exists in relation to the asylum-seeker's home area. It will suffice if there is such a well-founded fear from the state authorities in some parts of the country.
Secondly, the appellant contends that he has a well-founded fear of persecution because he cannot return to the KAR except by way of Baghdad,...
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