Pet
| Jurisdiction | Scotland |
| Judge | Lord Penrose |
| Neutral Citation | [2007] CSOH 34 |
| Date | 16 February 2007 |
| Docket Number | P1860/06 |
| Published date | 16 February 2007 |
| Court | Court of Session |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 34 | |
| P1860/06 | OPINION OF LORD PENROSE in the Petition of HEMAN MOHAMMED ABDULLA (AP) Petitioner; for Judicial Review Against THE SECRETARY OF STATE FOR THE HOME OFFICE Respondent: ________________ |
Petitioner: Bovey, Q.C., Stewart; Wilson Terris & Co
Respondent: Carmichael; H Macdiarmid
16 February 2007
[1] The petitioner is a national of Iraq of Kurdish ethnic origins. He was born on 27 December 1977. He entered the United Kingdom clandestinely on 1 July 2000. He claimed asylum on that date. His claim was refused by the Secretary of State by letter dated 26 June 2002 and served on 2 July 2002. The letter contained directions against the petitioner for his removal to Iraq as an illegal immigrant.
[2] The petitioner appealed to an adjudicator. Following a hearing at which the petitioner gave evidence, the adjudicator refused the appeal by determination promulgated on 6 April 2004. The petitioner applied to the Immigration Appeal Tribunal for permission to appeal against the adjudicator's decision. The Tribunal refused permission to appeal on 11 August 2004. Thereafter the petitioner made an application under section 101(2) of the Nationality Immigration and Asylum Act 2002 and the relative Rules of Court for review of the Tribunal's refusal of leave to appeal. That application was refused by a single judge on 1 October 2004.
[3] Counsel was instructed to prepare the present petition for judicial review on 8 April 2005. It was not available for presentation until about February 2006. It was initially refused as incompetent by administrative decision at the beginning of March and on later occasions during the spring and summer of that year. A first order for intimation and service was pronounced in September 2006 and a first hearing was fixed for 1 October. That diet was discharged of consent on the ground of inadequate time.
[4] The petitioner seeks (a) declarator that in reaching the determination promulgated on 1 April 2004 to dismiss the petitioner's appeal, the adjudicator erred in law et seperatim reached an irrational decision; (b) reduction of the adjudicator's decision to refuse his appeal; (c) declarator that in reaching its decision of 11 August 2004 to refuse permission to appeal against the decision of the adjudicator, the Tribunal erred in law; and (d) reduction of the Tribunal's decision of 11 August 2004.
[5] Although Mr Bovey for the petitioner declined, as he put it, to "legislate" by providing a succinct statement of the general and specific propositions of law on which the present petition depended, preferring to drip feed particular propositions into the discussion as it proceeded, it is necessary to attempt to identify the core features of his approach before narrating the details of his submissions. On his approach the supervisory jurisdiction of the court was, in principle, untrammelled by rule: the objective of the court was to do justice in the circumstances of the instant case. It followed that the objective merits of the case were central to the exercise of the judge's discretion. The stronger the merits of the case, the more likely it was that a remedy would be provided. An application without merit would be dismissed. At the other end of the scale, an application that was objectively meritorious would succeed.
[6] On this approach, the availability and the use of statutory procedures were, essentially, factors of no interest. The procedures were relevant only if they achieved the objective sought by the applicant. Patently, in the petitioner's case, they had not achieved that objective. On Mr Bovey's approach, the merits of the present petition would be seen to be irresistible in substance, and the petition for judicial review would have succeeded but for the objection that the petitioner had used the statutory appeal procedure and failed. It was necessary, in the first place, to set the procedural aspects aside, and to consider the merits of the petitioner's case.
[7] Mr Bovey's critical analysis of the adjudicator's determination focussed initially on paragraphs 29 and 30. The factual background to that paragraph was summarised by the adjudicator in paragraphs 9 to 13 of his determination. Before the adjudicator the petitioner's account of his background and personal history was accepted as credible. He supplemented his written statement in oral testimony in minor respects. So far as these were narrated by Mr Bovey, they are incorporated into the factual narrative that follows.
[8] In 1993 the petitioner was living in his parents' home in Sulemaniah, in the Iraqi Kurdistan region, otherwise referred to as the "Kurdish Autonomous Zone" (the KAZ). By then his father had been a member of the Patriotic Union of Kurdistan (the PUK) for some years. He had been arrested in May 1986 for his activities and detained for two years before being released under amnesty. The petitioner's father was a member of the PUK's militia force and on 10 March 1993 was appointed a deputy commander of the force. The PUK militia and the forces of the Kurdistan Democratic Party (the KDP) were in armed conflict with the government of Iraq, then supported in the KAZ by the Islamic Movement of Kurdistan (the IMIK), from at least 1988. The petitioner's father was wounded in a clash with the IMIK on 12 July 1993.
[9] The petitioner joined the PUK militia in 1992. Paragraph 10 of the determination states:
"On 22 November 1993, a messenger claiming to be from the PUK delivered a package at the family home. He was in fact from IMIK. The message said that it was a book for his father and his father's sons to read. The appellant opened the book and a bomb exploded. The appellant suffered injuries to his face, neck, chest and hands. He lost his hands and suffered permanent scarring. His brother lost an eye."
[10] Other siblings of the petitioner were also members of the militia. On 5 April 1994, the petitioner's father and one of the petitioner's brothers took part in a military action against the IMIK. The petitioner could not take part because of his injuries. There was further conflict in October 1994. The adjudicator found that the conflict subsided in 1995 or 1996. But, on 24 March 1997 the petitioner's father and one of the petitioner's brothers were killed in an ambush on a PUK convoy. Another brother was taken prisoner and held until he was released on 19 June 1997 in a prisoner exchange. On 22 February 1998 the petitioner's mother was killed when a grenade was thrown at the family home. One brother and a sister left Iraq as a result. On 1 October 1999 the petitioner's brother Amer was fired on, but the shot missed him.
[11] The petitioner and his brother Amer left Iraq and went to Iran in fear, presumably of the IMIK. But they were discovered and deported back to Iraq on 10 January 2000. There they remained in hiding until they left and made their way to the United Kingdom.
[12] The adjudicator made findings about the current situation in Iraq. He noted that the American led coalition had brought down the regime led by Saddam Hussein in April 2003, and that coalition troops were still on the ground. There was not a properly functioning civil administration, police or court system outwith the KAZ. Crime rates were high and many civilians were armed. His finding on the evidence before him, however, was that the level of violence was not such as to make it impossible to return persons to Iraq.
[13] In relation to the IMIK, the adjudicator had found in Amer's case, relying on a CIPU assessment of October 2002, that the organisation had split into a "myriad of groups". He noted that there was no dispute in the instant case that IMIK no longer existed as such, and referred to the petitioner's statement that the party had split into different groups such as Ansar al Islam. In relation to that organisation, in the determination in the petitioner's case, he quoted paragraph 3.22 of the CIPU Bulletin 7/2003 which stated that:
"Ansar al Islam was effectively removed as a threat in military actions by Peshmerga and US Special Forces in March 2003. There is a suggestion that some Ansar fighters may have gone underground and will continue terrorist activity but no evidence for this has so far emerged";
and paragraph 3.23 which stated that:
"Even if the remnants of Ansar al Islam were to present a continuing threat, the KDP and PUK are in de facto control of the Kurdish Autonomous Zone. They are capable of offering protection to those who reside within their respective territories and there is a system in place to provide such protection".
[14] Paragraphs 29 and 30 of the adjudicator's determination are in these terms:
"29. The credibility of the appellant was not in issue. He was injured in an IMIK letter bomb intended for his father in November 1993. He suffered grievous injuries, including the loss of both hands and could take no further active part against IMIK. His family continued to suffer, although the death in action of his father and brother were clearly part of the conflict and not a matter of persecution of the family by IMIK. If IMIK had anything particular against the family, it is strange that the brother who was captured in the ambush was released as part of a prisoner exchange. The appellant blames the grenade attack of February 1998 and the shot fired at his brother in October 1999 on IMIK. I accept that for present purposes, even though the attackers are unknown.
30. Things have changed radically in Iraq since the appellant left. IMIK no longer exists. There was no objective information before me that would indicate that the splinter groups to which IMIK gave rise are continuing individual vendettas against those who belonged to PUK, or whose families were PUK members. Realistically, although the Islamists are not a totally spent force, they have their own problems and priorities. There is no credible reason to believe that...
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