R RH (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lady Justice Arden,Lord Justice Toulson |
| Judgment Date | 16 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1757 |
| Date | 16 November 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/2310 |
[2011] EWCA Civ 1757
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
BIRMINGHAM
(HIS HONOUR JUDGE OWEN QC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lady Justice Arden
and
Lord Justice Toulson
Case No: C4/2010/2310
Mr Ramby de Mello and Ms Nazmun Ismail (instructed by Fountain Solicitors) appeared on behalf of the Applicant.
Ms Susan Chen (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
This is a renewed application to this court for permission to apply for judicial review. An application for permission to apply for judicial review was last refused by HHJ Owen QC, sitting as a judge of the High Court, on 20 September 2010.
The applicant is a citizen of Iraq. He arrived in the United Kingdom clandestinely on 18 September 2001 and sought asylum. He said that he feared persecution in Iraq from the Iraqi authorities based on his race. He also feared persecution because he had criticised the then regime of Saddam Hussein and Saddam Hussein personally.
There was also a fear, he submitted, within the Kurdish community. There had been a blood feud within that community in the course of which his father had been murdered. It is further submitted that, when performing military service in Iraq, he was discriminated against when he criticised Saddam Hussein. He was arrested by military intelligence, detained for two days and beaten and given electric shocks. He was tortured, having been transferred to the security forces in Kirkuk. He claimed to have been tried before a military court in Kirkuk on the grounds that he had insulted Saddam Hussein and worked for an opposition party and that he was racist towards Arabs. He was convicted and sentenced to 15 years in prison. However, his uncle was at the relevant time a high ranking member of the Ba'ath Party. Prison guards were bribed by the uncle to aid his escape. On escaping he fled Iraq and came to the United Kingdom.
On 7 November 2002 the Secretary of State for the Home Department refused the claim for asylum, not accepting the veracity of the applicant's account. In relation to the alleged arrest and beating it was stated at paragraph 13 of the letter:
"The Secretary of State reiterates his belief that you have fabricated this aspect of your account solely to substantiate your reasons for leaving Iraq and he does not therefore believe that you are a genuine refugee."
Referring to the release from prison with the aid of a bribe, it was stated at paragraph 14:
"This discrepancy in the account given leaves the Secretary of State to doubt the veracity of your account."
Paragraph 15:
"In the light of all the evidence available to him and for the reasons given above the Secretary of State is not satisfied that you have a well-founded fear of persecution."
The application for asylum was refused.
The applicant appealed to the tribunal. Following a hearing on 26 August 2003, the Adjudicator, as immigration judges were then described, promulgated a decision on 3 October 2003. The application was dismissed both on asylum and on human rights grounds. The Adjudicator did not accept the credibility of the applicant.
On 9 July 2007 the applicant applied for indefinite leave to remain (ILR), basing his application on the decision of this court in R(Rashid) v SSHD [2005] EWCA Civ 744. That was an Iraqi case in which relief was given to the applicant. Giving the leading judgment, I stated at paragraph 34:
"I accept Mr Tam's submission that this is not the typical case of legitimate expectation which usually arises in the circumstances he has described. It is, as the judge recognised, and Mr Rabinder Singh rightly submits, a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration have resulted in conspicuous unfairness to the claimant."
In a concurring judgment Dyson LJ stated at paragraph 52:
"But as against that, in my judgment it is clear that there has been conspicuous unfairness in this case."
Dyson LJ added at paragraph 53:
"In the absence of any explanation I consider that the court is entitled at the very least to infer that there has been flagrant and prolonged incompetence in this case."
The court was led to that conclusion, for reasons which included delay in considering the application, but there were other aspects to which reference need not be made.
There was a long gap before the Secretary of State responded to the application for ILR. Reminders were sent on the applicant's behalf. His Member of Parliament wrote to the Secretary of State urging a decision. Judicial review proceedings were commenced. These were settled by way of a consent order in December 2009 and a decision was given the following month, on 29 January 2010. The decision was to reject the application for ILR. It was found that the applicant did not meet the criteria set out in Rashidor in the policy guidance issued following Rashid. Rashid, though unreported, has the accolade of giving rise to two Iraqi policy statements, 2/2006 and 1/2009 and that is the relevant one for present purposes.
On 11 February 2010 the applicant's solicitors wrote disputing the decision of January, expressing a difference of opinion as to the effect of Rashid and making a further request for ILR. It is a short letter. Apart from referring to Rashid it does add:
"We also reiterate that the delay caused by you, which amounts to years, and the extensive Article 8 family and private life arguments along with the worsening position in Iraq in respect of Article 3 and humanitarian issues all point to this being a case in which the claimant ought to be granted indefinite leave to remain."
It was stated that:
"In the absence of a response, within 21 days counsel will be instructed."
The relief sought was either ILR or:
"If you are minded to refuse to grant him ILR then will you instead grant him a right of appeal to the Asylum and Immigration Tribunal?"
Ms Chen for the Secretary of State has been asked whether there is any explanation for the two-and-a-half year delay between the application for ILR and the decision letter of January 2010. All she can tell the court is that there was a substantial backlog of work during that period; I daresay particularly in relation to Iraq.
The letter of 11 February attracted a very full response from the Secretary of State dated 9 March 2010. The letter runs to 47 paragraphs and is comprehensive. It may be that the unfortunate delay which had occurred encouraged specific and detailed attention to the claims briefly made in the letter of 11 February. At paragraph 4 the Secretary of State considered the test in paragraph 353 of the Immigration Rules, whether this could amount to a fresh claim, and it was stated that it did not. Reasons were given for that. Paragraph 11 stated that consideration had already been given to the Rashid principle and it was claimed that it had sufficiently been dealt with in the earlier letter.
Paragraph 12 of the letter continued :
"Nevertheless consideration has been given to the claims that your client would have been granted four years ELR in the United Kingdom if his asylum had been considered shortly after he arrived in the United Kingdom."
Thus, having determined that there was no fresh claim, which would of course give rise to a fresh consideration of the evidence, the Secretary of State did consider not only what is stated in paragraph 12, the conditions which had prevailed in Iraq as at the time of the 2001 decision, but also the continuing situation. It was stated:
"23. Within your submissions you claim that with the worsening position in Iraq in respect of Article 3 and humanitarian issues your client ought to be granted indefinite leave to remain.
24. Consideration has been given to your submissions and to the objective guidance that you have provided, however we note the content of the recent operational guidance note for Iraq dated June 2009."
The conclusion then reached was that the applicant did not qualify for humanitarian protection. Reference was made to the claim under Article 8 and it was found that there was no valid claim under that Article of the Convention.
The claim for judicial review was based on an alleged legal error in requiring the need for a fresh claim before fresh in-country relief could be granted by way of an appeal. It was further submitted that the applicant has a compelling case under the Rashid principles to be granted ILR and, further, that he has a strong humanitarian protection Article 3 ECHR claim which ought to succeed. The application was refused on a consideration of the papers by Beatson J and, following an oral hearing, by Owen J. The application to this court has been considered on the papers by Carnwath LJ, who noted that "merits had been exhaustively reviewed at several levels".
The Grounds of Appeal to this court are that the applicant comes within the terms of the Iraq Country Policy Bulletin, particularly paragraph 4.5 of 1/2009. Secondly, the Secretary of State had failed to consider whether the applicant was entitled to humanitarian protection. Thirdly, and in any event, the applicant is entitled to an in-country right of appeal because of his humanitarian protection...
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