R Rasoul v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE IRWIN |
| Judgment Date | 20 October 2011 |
| Neutral Citation | [2011] EWHC 3818 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9412/11 |
| Date | 20 October 2011 |
[2011] EWHC 3818 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Irwin
CO/9412/11
Ms S Naik (instructed by Lawrence Lupin) appeared on behalf of the Claimant
Mr D Blundell (instructed by Treasury Solicitor) appeared on behalf of the Defendant
This case is a renewed application for permission for judicial review and for interim relief. The claimant, who is an Iraqi Kurd, is someone it is proposed to remove to Iraq which, for present purposes, means to Iraq via Baghdad. The principal issue, and the only issue which has as yet been argued, is the question of removal.
The facts can be summarised reasonably swiftly. He is said to have been born on 1 July 1985. So far as has been established, he arrived in the United Kingdom by clandestine means in July 2002 and claimed asylum on arrival. That claim was refused but he was granted exceptional leave to remain until August of 2006. In August 2005, he was convicted of two counts of false imprisonment of a child and sentenced to two years and four months' imprisonment. Subsequently, in the spring of 2006, he was served with a notice of decision to make a deportation order on the basis that that would be conducive to the public good. He appealed the decision to deport. That appeal was dismissed and his appeal rights were exhausted late in 2006. The deportation order was signed in March 2007. He applied in June 2008 for the facilitated removal scheme. By that stage he had been detained for quite a period. He was accepted on the facilitated removal scheme in July 2008 but later that month indicated that he was considering withdrawing from that scheme. He then refused to sign the necessary disclaimer for return to Baghdad in July 2008, and indicated he would only willingly return to Kirkuk. The process of negotiations, if I can use that term, about voluntary return, continued for some time during 2008. A fresh decision to deport was made in September 2008, the previous deportation order being revoked.
Once again the claimant appealed against the fresh decision to deport; that appeal was dismissed in November 2008 with his appeal rights being exhausted that month, and a fresh deportation order was signed on 20 October 2009. He was detained in May 2010, a deportation order having been served on him in November 2009. During June 2010, the claimant was included in the usual pre-clearance exercise, but he refused to be interviewed by the Iraqi delegation, and was not compliant. He was in fact due to be removed on a scheduled charter flight on 6 September 2010 but he was prevented from being removed because of an ex-parte injunction and he issued judicial review on 3 September.
As is well known, there have historically been some difficulties with returning Iraqis of Kurdish ethnicity to Iraq via Baghdad. An example of the courts considering those difficulties can be found in Ahmed (R on the application of) v Secretary of State for the Home Department [2010] EWHC 625 Admin. The nub of this case on this point is that there is said to be a risk of inhuman and degrading treatment on his return. That really turns on the degree to which this court should follow the country guidance case dealing with those issues: HM and Others [2010] UK UT 331 (IAC). The country guidance case has been appealed. In granting permission for that appeal, Lord Justice Pill on 15 April 2011 gave the following reasons:
"The AIT was put in a difficult position by developments shortly before the hearing, particularly having resolved that the case should be a country guidance case. Careful consideration was plainly given at each stage to the procedure to be followed. The merits were also carefully considered. I have also considered the helpful written submissions on behalf of the Secretary of State. I am sufficiently concerned about the procedural issues raised, especially in a case which was to become a country guidance case, to grant permission to appeal. They merit consideration by this court. Rulings may have an impact of the merits and Article 15(c) may be argued."
Different approaches have been taken by different judges to Iraqi Kurds pending this appeal, as we shall see. I begin by considering what is the essence or nature and impact of a country guidance case. The Senior Tribunal President's Direction has been helpfully provided. The Practice Directions issued by the Senior President of the Immigration and Asylum Chamber's First Tier and Upper Tribunal was issued on 10 February 2010. Section 12 of the guidance deals with starred and country guidance determination. He begins by setting out in 12.1 the impact and nature of a starred determination, which is to be treated by a tribunal as authoritative in respect of the matter to which the starring relates unless inconsistent with other authority binding on the tribunal. Any reading of paragraph 12.2 describing country guidance cases has to bear in mind the contrast with the authoritative nature of a starred case. The guidance as to country guidance determinations reads as follows:
"A reported determination of the Tribunal, the AIT or the IAT bearing the letters 'CG' shall be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal, the AIT or the IAT that determine the appeal. As a result, unless it has been expressly superseded or replaced by any later 'CG' determination, or is inconsistent with other authority that is binding on the Tribunal, such a country guidance case is authoritative in any subsequent appeal, so far as that appeal:
(a) relates to the country guidance issue in question; and
(b) depends upon the same or similar evidence."
The impact of a "country guidance" denomination was considered by the Court of Appeal in S and Others v Secretary of State for the Home Department [2002] EWCA CIV 539. Beginning at paragraph 23, the court reviewed previous authority as to the meaning and impact of a country guidance denomination. It is not necessary for me to quote the contents of paragraphs 23 to 26 in their entirety. Perhaps the most important passages are contained in the quotation in S and Others, of a passage from the judgment of Lord Justice Brooke in R and Others v Secretary of State for the Home Department [2005] EWCA CIV 982.
The quotation from S and Others, in paragraph 141, reads as follows:
"Unlike starred decisions, it is always possible for further evidence to show that the original decision was wrong or to expose other issues which require examination. They [that is to say country guidance cases] are not accurately understood or described as 'factual precedents'."
At paragraph 142:
"The system enables the parties and the judiciary to know where to look for what the Tribunal sees as the relevant guidance, the parties to know what they have to deal with, and, if they wish to take issue with it, what it is that has to be the target of their evidence or argument. It enables parties to rely on the material which others have had accepted without reproducing or repeating it every time, or if it has been rejected, to know that there is no point in repeating it. Consistency and the justice which that brings can be provided for, even though differing and perhaps reasonable views can be taken of a wide variety of material. It also has the advantage of enabling the understanding of country conditions to be refined as successive decisions may lead to the identification of consequential issues to be grappled with which had hitherto been unrecognised…"
The approach to country guidance cases can be summarised as follows. They are to be distinguished from starred cases which provide authoritative precedent; they are not a legal precedent and it is not helpful to describe them as factual precedent. They are a starting point where they are relevant. In the circumstances adumbrated in the guidance, they are usually an authoritative or good guidance. A principal purpose of the country guidance system is to avoid duplication of evidence, unnecessary repetition of evidence, elongation of hearings, and where possible to avoid inconsistency. They represent an important discipline for the trial of cases before the Tribunals. Those remarks, it seems to me, are consistent with the wording of paragraph 12.2 in the guidance.
As I have indicated differing views have been taken by different judges in relation to Iraqi Kurds who it is proposed to return to Iraqi via Baghdad. Bean J has adjourned a number of these cases; it may be on less full evidence than was deployed in some of the cases which followed. On 12 October 2010, Silber J, in this case and in relation to this claimant, refused permission, removed the injunction which had been granted by Collins J on 6 September to prevent removal, and indicated that renewal of the application for permission in this case should not be a bar to removal from the United Kingdom. In the course of that decision he made reference to the country guidance case of HM and took the view that that was a sufficiently strong steer for the decision in this instant case and that the guidance given had addressed the concerns sufficiently and fully.
In the case of Osman Garib v Secretary of State for the Home Department, [2011] EWHC 2428, Langstaff J dealt with a very similar application or set of applications to this case. The essence of his approach was that HM bound...
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