GH v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Keene,The President |
| Judgment Date | 12 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1182 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2005 |
| Docket Number | Case No: C4/2004/2273 |
[2005] EWCA Civ 1182
The President
Lord Justice Keene and
Lord Justice Scott Baker
Case No: C4/2004/2273
Mr Simon Cox (instructed by Messrs Harrison Bundey) for the Appellant
Miss Lisa Giovannetti (instructed by The Treasury Solicitor) for the Respondent
This is an appeal brought with the leave of the Full Court (Buxton and Maurice Kay LJJ) against a decision of the Immigration Appeal Tribunal ("the IAT") notified on 10 September 2004 dismissing the appellant's asylum and human rights appeal from an adjudicator (Mr M Shrimpton) . The appeal raises an important issue of principle as to the ambit of section 82 of the Immigration and Asylum Act 2002 ("the 2002 Act") . Mr Simon Cox, who has appeared for the appellant, defines the issue thus:
"On an appeal under section 82 of the 2002 Act brought on the grounds that removal from the United Kingdom would breach the United Kingdom's obligations under the Geneva and Human Rights Conventions, does the Immigration Appellate Authority have jurisdiction to take into account what may happen in the course of the immigrant being removed from the United Kingdom and travelling to his safe home area in the country concerned?"
At the permission hearing the court raised of its own motion, and gave permission to the parties to raise, two issues: (a) whether the IAT had been entitled to find an error of law in the adjudicator's determination and (b) whether the IAT had been entitled to treat the appellant's appeal as a "Country Guidance" case. For reasons that it is unnecessary to explain, neither of these questions has played any part in the appeal. It is common ground that the IAT was entitled to find an error of law on the part of the adjudicator.
The Facts
The appellant is a single man aged 30. He is a Kurd from Iraq. He lived in Suleymaniya, a city in the Kurdish Autonomous Area ("the KAA") in North Iraq, from which Saddam Hussein's regime forces were expelled in 1991. He entered the United Kingdom clandestinely on 1 March 2000 and claimed asylum the same day. He was an active member of one of the secular Kurdish political parties and claimed asylum on the grounds that:
a) he had been detained and tortured in the KAA by (i) Islamic groups who considered his political activities blasphemous and (ii) a rival secular Kurdish group and that he remained at risk from them in the KAA.
b) he could not go to Government controlled Iraq because he would be detained and tortured by the Saddam regime as a supporter of the Kurdish opposition to him.
In broad outline his history of events was as follows. In March 1990 he joined the student wing of the Patriotic Union of Kurdistan ("the PUK") . Later he joined the PUK itself. In September 1990 he was arrested by the Government's Ba'ath party, detained for twelve days and tortured. In March 1991, as part of the successful Kurdish uprising against the Saddam regime, he joined an attack on the Ba'ath party offices which secured the release of his brother and father who had been detained. In September 1996 the Kurdish Democratic Party ("the KDP") joined forces with the Saddam regime and attacked the PUK. The appellant was arrested and detained for nine days. In November 1997 he was again arrested and detained by the KDP, this time for two months and eleven days. On 1 February 1999 he was arrested by the Islamic Kurdish Party for alleged blasphemy, detained for nine days and tortured. On his release he left Suleymaniya, eventually reaching the United Kingdom in March 2000.
On 16 July 2003 the Secretary of State rejected his claim to asylum and concluded that his removal from the United Kingdom would not breach his human rights, pointing out that Saddam Hussein's regime had been toppled in the Spring of 2003 and that the Coalition Provisional Authority controlled Iraq. Nor was he at risk in the KAA. Relations between the KDP and the PUK had improved and they were working closely with each other. People could safely live in the Kurdish Autonomous Zone and the north without experiencing any problems. The Secretary of State expressed some doubt about the appellant's credibility but that no longer remains an issue. The Secretary of State having concluded (i) that the appellant did not have a well founded fear of persecution and did not qualify for asylum, and (ii) that his removal would not contravene the United Kingdom's obligations under the European Convention on Human Rights (ECHR) , nevertheless did not issue any removal directions. That remains the position at the present time.
A letter from the Home Office dated 19 April 2005 set out the position as it was at the time we heard the appellant's appeal. The relevant paragraph reads:
"We reached agreement on enforced returns with the outgoing Iraqi Interim Government just before the elections in Iraq held on 30 January 2005. However, the new administration has not yet been appointed, although we expect this process to be completed soon. Once ministers are in post we will be confirming our operational plans with them. We cannot at this stage be firm on when enforced returns might start, nor is it possible to disclose the likely mechanics of the returns operation, as no final arrangements have been made pending the operational decision being taken to proceed."
On 6 August 2003 the appellant appealed to an adjudicator. This was under section 82 of the 2002 Act and was the standard 'one stop' appeal covering asylum and human rights grounds. The appeal was heard on 10 October 2003 and the decision promulgated on 29 October 2003. The appeal was dismissed.
The appellant sought and obtained leave to appeal to the IAT. The IAT said the adjudicator had in essence dismissed the appellant's claim for three reasons. First, any threat from Islamic extremists had been eliminated; secondly the Saddam Hussein regime no longer existed and thirdly there was in any event a sufficiency of protection although it was not clear from the determination who the adjudicator thought would offer it. The IAT concluded that the adjudicator's determination was unsafe because it was inadequately reasoned in a number of respects. It therefore proceeded to consider the appellant's claim afresh on the basis of the accepted factual history of the appellant and the latest objective country evidence.
The appellant sought from the IAT an application for a witness summons for the attendance of Miss Hipwell, the head of the country action team of the Home Office, so that she could be cross examined as to the mechanics of the return of each applicant to Iraq. She had filed and served a witness statement setting out the Secretary of State's policy in relation to enforced returns to Iraq which was, in short, that it had been intended to implement a pilot scheme but practical considerations had prevented this. Returns would be on a case by case basis and returnees would be directed to areas where the Home Office was satisfied that the individual concerned was not at risk. The IAT rejected the application saying the witness could speak only to the Secretary of State's policy and it was "not appropriate to allow general cross examination going to the practicability of return which the Tribunal has consistently regarded as outside its remit." The Tribunal said:
"Our function is to consider first whether the appellant would be at real risk of persecution under the Refugee Convention if today returned to his home area in Iraq (Dyli) . If the answer to that question is in the negative, the Convention is not engaged. Such a finding will usually (but not always – see below at paragraph 38) mean that the appellant cannot succeed in showing a real risk of breach of his protected human rights under Article 3 of the European Convention either, since the risk element must reach the same threshold required to amount to persecution under the Refugee Convention …"
The Tribunal went on to say that if there is a real risk of persecution in the home area then the practicability of travel to a safe haven in the appellant's own country may be relevant from the proposed point of access to that safe haven (the internal flight alternative) but unless such a real risk in the home area is established that is not an enquiry on which it was either necessary or appropriate to embark for the purposes of the asylum claim. The position was similar with regard to human rights claims where return to a place of safety was an issue. Accordingly it did not determine that the appellant could travel with sufficient safety from any point of arrival within Iraq to the KAA; it left that for the Secretary of State to decide. There was no reason to think the Secretary of State would not comply with the policy on involuntary returns that had been set out in Miss Hipwell's statement and no issue arose in respect of the method of return.
The tribunal noted the UNHCR's concerns expressed in a document of 4 March 2004 about enforced returns to Iraq but pointed out that broad humanitarian considerations were for the discretion of the Secretary of State. What they had to consider was whether there was a well founded fear of persecution in the appellant's own area for a Convention reason (and/or a breach of Article 3 of the ECHR) . It reiterated that it was not concerned with the practicality or logistics of return. It concluded that the appellant had failed to establish any real risk he had contended for. Neither his...
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