Rizjar Fake Ahmed Saber (ap) V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Johnston,Lord Osborne |
| Date | 13 November 2003 |
| Docket Number | XA129/02 |
| Court | Court of Session |
| Published date | 13 November 2003 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Osborne Lord Johnston
| XA129/02 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL TO THE COURT OF SESSION against A decision of the Immigration Appeal Tribunal dated 14 June 2002 and communicated to the Appellant on 16 June 2002 by RIZJAR FAKE AHMED SABER (A P) Appellant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: _______ |
Act: Bovey QC, Collins; Drummond Miller WS
Alt: Carmichael; Solicitor to the Advocate General
13 November 2003
Introduction
[1]This is an appeal against a decision of the Immigration Appeal Tribunal on a claim by the appellant for asylum. The respondent is the Secretary of State for the Home Department.
[2]The appellant is a Kurdish citizen of Iraq. Until 4 July 2000, when he fled from Iraq, he lived in Koya in the Kurdish Autonomous Region (KAR) in Northern Iraq. He entered the United Kingdom illegally later in July 2000 and claimed asylum. On 13 February 2001 the respondent refused his claim. By notice dated 22 February 2001, the respondent issued directions for the removal of the appellant to Iraq by scheduled airline at a time and date to be notified.
[3]The appellant appealed to an adjudicator. By decision dated 29 July 2001 the adjudicator allowed the appeal. The respondent appealed against that decision. By decision dated 14 June 2002 the Immigration Appeal Tribunal allowed the respondent's appeal. That is the decision now appealed against.
[4]After this appeal was lodged, the respondent amended his case to raise the new argument that, as a result of the military action in Iraq by the US-led coalition forces, the regime from which the appellant claimed to fear persecution was no longer in power, and therefore that the appeal raised issues of academic interest only. At the outset of the hearing counsel for the respondent told us that, on instructions, she would not pursue that point. That lent an air of unreality to the discussion. It required us to decide the case on the basis of the facts as they existed before the invasion of Iraq and in particular to consider the central question of the appellant's fear of persecution in a context that is now historical only.
The claim for asylum
[5]The appellant claims that he is a refugee whose removal from the United Kingdom would constitute a breach by the United Kingdom of its obligations under the Geneva Convention Relating to the Status of Refugees (1951) (the Refugee Convention) and under articles 3 and 5 of the European Convention on Human Rights (1950) (the ECHR).
"Article 1A of the Refugee Convention provides inter alia as follows:
For the purposes of the present Convention, the term 'refugee' shall apply to any person who ...
(2) ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ... "
The ministerial statement and undertaking
[6]On 26 March 2001, the then Home Office Minister, Mrs. Barbara Roche, made the following statement:
"The Government recognises that there may be certain people from northern Iraq who are in need of international protection under the terms of the 1951 United Nations Convention relating to the Status of Refugees. However, there are also some asylum seekers from that region who, after careful consideration of their application, do not appear to meet the criteria set out in the Convention. The office of the United Nations High Commissioner is on record as saying that it would not object to the return to northern Iraq of asylum seekers from that area who have been found through fair and objective procedures not to be in need of international protection. To that end, the government is in the process of exploring the options for returning Iraqi citizens of Kurdish origin to the northern part of Iraq, and these arrangements will be used to return such Iraqi nationals who do not qualify for leave to enter or remain in the United Kingdom."
[7]That statement was followed by a written undertaking given by the respondent in the following terms:
"Consistent with the statement approved by the then Minister of State, the Secretary of State confirms that he will not seek to enforce the removal of any failed Iraqi asylum seeker to the Kurdish Autonomous Zone (KAZ) of northern Iraq unless satisfied that he is able to do so without breaching obligations under the Refugee Convention and the Human Rights Act 1998. The Secretary of State will be mindful of these obligations in considering not only conditions in the KAZ itself but also the route of return to the KAZ. For the avoidance of any doubt the Secretary of State also confirms that he will not for the time being enforce return of any failed Iraqi asylum seeker either to or via territory controlled by the Iraqi government. Subject to the above, it is the Secretary of State's intention to effect removal as soon as it is practicable to do so" (cf. Gardi v Secretary of State for the Home Department, [2002] 1 WLR 2755, at p. 2762).
The proceedings before the adjudicator
The evidence
[8]The adjudicator had before him the appellant's statement of evidence form; his interview record; the respondent's refusal letter; the Iraq Country Assessment prepared by the Home Office Country Information and Policy Unit (the CIPU assessment) (April 2001), and the Immigration and Nationality Department assessment of Iraq (3 July 2001), which was in substance the same. The CIPU assessment was the basic source document. It set out inter alia detailed information about the volatile state of affairs in the KAR, and in particular about the activities of the rival political groups, the PUK and the PDK, and the areas over which they exercised control. The adjudicator did not have the terms of the ministerial statement that we have quoted. The adjudicator also heard the oral evidence of the appellant who, as he records, was thoroughly cross-examined (Decision, para. 9).
The adjudicator's conclusions on the appellant's credibility
[9]The adjudicator found the appellant to be "generally a credible witness" (para. 11). Although there were some discrepancies between the appellant's statement of evidence, his asylum interview and his oral evidence, he held that those "were all of a very minor nature and did not affect the core credibility of the appellant's story" (para. 15). He did not believe the appellant's claim that he had been beaten and tortured by the PDK (para. 12). He regarded the appellant's exaggeration of his suffering at the hands of the PDK as "perhaps an understandable embellishment" in his wish to indicate the risk to him in the KAR (para. 15).
The adjudicator's findings in fact
[10]The adjudicator found that the appellant joined the PUK in 1994. While at University in Arbil in the KAR, he was involved in promoting and recruiting for the PUK and was widely known to be so involved. The PDK gained control of Arbil in August 1996. Shortly after that, the appellant was arrested by the PDK, detained for
25 days and questioned. The appellant was released on the intervention of a lecturer at the University and continued his studies for the next two years. During that time he maintained his links with the PUK.
[11]The appellant left Arbil in December 1998 for Koya, which was in a PUK-controlled area. He began to smuggle machine and car parts, and later medicines, to Sulaymaniya from Kirkuk at the request of PUK members. He was assisted in these activities by a friend called Farhad Aziz. In April 2000, while they were smuggling medicine, Farhad was arrested by the Iraqi authorities. The appellant escaped. Farhad's family blamed the appellant for having involved Farhad in the work. They threatened to take revenge on him if Farhad did not return safely. The appellant fled because he feared both Farhad's family and the Iraqi secret agents who were working with impunity within the KAR. He feared that the Iraqi authorities would have extracted information about the appellant from Farhad.
The adjudicator's decision
The Refugee Convention
[12]The adjudicator considered that the "basic crux" of the appeal was that the appellant was by then almost certainly known to the Iraqi State as a political opponent who had been engaged in smuggling into the KAR for the PUK. He considered that the appellant's return to Iraq would mean his return to Baghdad. It was unnecessary for him to consider the issue of internal flight in the KAR since at that time there was no such option. Even if the appellant somehow returned to the KAR, it followed from the appellant's evidence, which he believed, and which the objective evidence did not contradict, that since Iraqi secret agents were moving with virtual impunity in the KAR, the appellant would be at a real risk of capture or death at their hands (para 17). The adjudicator concluded that return to Baghdad, or even to the KAR, would mean a real risk of imprisonment, torture, inhuman and degrading treatment or punishment, and that treatment could be causally linked to the appellant's PUK political affiliations. He therefore allowed the appeal under the Refugee Convention (para. 18).
The ECHR
[13]In considering the potential for the appellant to be imprisoned on his return and to be subjected to torture, inhuman and degrading treatment or punishment, the adjudicator relied upon the CIPU assessment and on matters within judicial knowledge. He held that it was within his judicial knowledge that the United Kingdom did...
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