R (Rashid) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS |
| Judgment Date | 22 October 2004 |
| Neutral Citation | [2004] EWHC 2465 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 22 October 2004 |
| Docket Number | CO/2941/2003 |
[2004] EWHC 2465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Davis
CO/2941/2003
MR R HUSAIN (instructed by Refugee Legal Centre) appeared on behalf of the CLAIMANT
MR S GRODZINSKI (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
Introduction
This is —or at all events one hopes it is —an unusual case.
The claimant, Bakhtear Rashid, an Iraqi Kurd, claimed asylum in the United Kingdom on 4th December 2001. His application for asylum was refused on 11th December 2001 and a decision of an adjudicator on appeal on 7th June 2002 was adverse to the claimant. Permission to appeal was refused by the Immigration Appeal Tribunal on 12th July 2002. Unknown to the claimant and his advisers (and also, so it seems, unknown to those at the Home Office handling his case) there was in existence —it is too much to say that there had been promulgated —a policy of the Secretary of State which, as it is now conceded, should have been applied to the claimant at the time and which, if so applied, as it is also now conceded, would have resulted in his being granted refugee status and entitled to indefinite leave to remain in the United Kingdom. The existence of this policy only became known to the claimant and his advisers when it was revealed in the context of the cases pending in the Court of Appeal of two other applicants in precisely the same position as the claimant early in March 2003. Those two applicants were granted refugee status by the Secretary of State accordingly. The case of this claimant was referred back to a case officer for reconsideration in consequence. However, before his case was actually reconsidered, the war in Iraq with Saddam Hussein intervened. In the aftermath of that, the decision was eventually taken that, in the circumstances as they by then stood, the claimant no longer qualified for refugee status; and his application for refugee status and leave to remain in the United Kingdom was accordingly refused. The question in this case in essence comes to this: is such decision invalid on grounds of unfairness?
Facts
The background facts in rather more detail are as follows. The claimant is a national of Iraq of Kurdish origin. He was born on 1st July 1983 in northern Iraq in Arbil, which subsequently became part of the Kurdish Autonomous Zone (KAZ). In 1987, at the age of four, he moved to Makhmur in southern Iraq, an area which at the material times, and until the war in 2003, was under the control of the Ba'athist regime. He left Iraq in October 2001 and arrived in the United Kingdom via Turkey on 4th December 2001 when he claimed asylum. He was interviewed. Subsequently his application was refused by decision letter dated 11th December 2001. That letter accepted that the claimant "would have protection concerns in the area still controlled by Saddam Hussein's Ba'ath government". But the letter went on to state that there were areas in the KAZ where he would not have a well-founded fear persecution and it would be reasonable to expect him to go there. That letter, however, proceeded on the erroneous basis that the claimant was from the KAZ. This was corrected by a subsequent letter dated 14th May 2002; but the original decision was maintained.
The claimant appealed. The hearing before the adjudicator took place on 15th May 2002. The claimant was represented and gave evidence. The Secretary of State appeared by a presenting officer. The presenting officer's case was put on the basis that there was no well-founded fear of persecution. It was also expressly stated, as the adjudicator noted, that the claimant would not be returned to any area of Iraq under the control of Saddam Hussein's government but to the KAZ, this being in accordance with a general undertaking which had been given at that time by the Secretary of State in the case of failed Kurdish asylum seekers from southern Iraq.
The adjudicator, by determination issued on 7th June 2002, dismissed the appeal. He stated:
"I do not believe that the Appellant has given a credible account of why he left Iraq."
He further noted that, as the claimant would not be removed to Makhmur but to the KAZ, he would not be at risk of adverse treatment there; that if he were returned to Iraq he would not be of any adverse interest to the Iraqi government; and that it would not be unduly harsh to remove him to the KAZ.
The claimant sought to appeal. The Immigration Appeal Tribunal refused permission to appeal. Its decision, dated 1st July 2002 and issued on 12th July 2002, amongst other things said this:
"3. It is true that the Adjudicator did not give reasons for his finding that the Appellant did not give a credible account of why he left his home area Iraq. This is because he found that the Appellant would not be removed other than to the KAA and therefore focused on whether the Applicant could establish a well-founded fear of persecution there, and if internal relocation to the KAA would be unduly harsh."
And at paragraph 5:
"5. Therefore, although the Adjudicator did not give a reasoned explanation for his finding that the Applicant had no fear even in his home area, this could make no difference to the end result, because he reached proper conclusions both on internal relocation and on undue harshness. As the Applicant failed to satisfy the fear test in relation to the KAA, the issues raised about the protection test do not arise."
Thus an essential basis for the Immigration Appeal Tribunal's refusal of permission to appeal was that the claimant would be, and could properly be, relocated to the KAZ.
On 2nd October 2002 the claimant applied for judicial review of this decision of the Immigration Appeal Tribunal. Amongst other issues raised, challenges were made as to the adjudicator's decision on the asylum merits and also as to protection issues within the KAZ. On 4th February 2003, after an oral hearing, Harrison J granted permission. He directed that the substantive hearing was to be listed after the disposal of three other cases pending in the Court of Appeal called Anwar, Simon and Maghdeed.
Those three cases were due to be heard together in the Court of Appeal on 19th and 20th March 2003. The principal issue in the cases of Maghdeed and Anwar was whether those applicants could reasonably be expected to relocate to the KAZ in circumstances where they had a well-founded fear of persecution in their home areas in Ba'athist Iraq. I was shown some of the papers in their cases. It is however sufficient for me to say that it is expressly accepted on behalf of the Secretary of State in the present case that the position of the claimant —that is, Mr Rashid —was precisely on all fours with that of the applicants Maghdeed and Anwar.
Those cases were in the event never heard by the Court of Appeal. The reason for that was apparently as follows. It has since been said that "shortly prior to the Court of Appeal hearing" the existence of a certain policy was "in general terms" brought to the attention of those representing the Home Office on the appeals (which incidentally connotes that those representatives had themselves known nothing of such a policy). What was that policy? It was explained at the time in these terms by a letter from the Home Office to the Immigration Law Practitioners' Association dated 20th February 2003. That letter, amongst other things, said this:
"I am writing to let you know about a couple of changes that are taking effect today in the handling of asylum claims from Iraqi nationals."
The first change was then set out and then this was said:
"At the present time, we will not be applying the option of internal relocation to the KAZ for applicants from Government controlled Iraq."
On 6th March 2003 a letter was sent by the Treasury Solicitor to the legal representatives of Mr Anwar and Mr Maghdeed respectively. Reference having been made to the current appeals, this was said:
"Although the Secretary of State remains of the view that the Tribunal's determination is correct as a matter of law, he was not, as a matter of policy at the time of this case, relying on the availability of relocation from southern Iraq to the KAA.
Accordingly, the Secretary of State will shortly be writing to your client granting him refugee status and would therefore invite you to withdraw your appeal."
The legal advisers to the claimant naturally became aware of these letters. In consequence, they faxed a letter dated 12th March 2003 to the Treasury Solicitor referring to the disposal of Mr Anwar's and Mr Maghdeed's cases and to the comparable facts of Mr Rashid's case. That letter concluded in this way:
"We now know from Ms Townsend's letter that at the time decisions were taken by the Secretary of State in Mr Rashid's case, it was not the Secretary of State's policy to rely on 'the availability of relocation from southern Iraq to the KAA.
The clear rationale underpinning the Secretary of State's recent decisions in Anwar and Maghdeed also applies to Rashid, since it would clearly be unfair, and contrary to a legitimate expectation that has been conferred on Mr Rashid, for refugee status to be withheld from him notwithstanding the grants to Anwar and Maghdeed.
I would be grateful if you could confirm within the next 14 days that refugee status will be granted, failing which we reserve the right to bring an application for judicial review without further reference to you."
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