Saber v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD BROWN OF EATON-UNDER-HEYWOOD,LORD BINGHAM OF CORNHILL,BARONESS HALE OF RICHMOND,LORD RODGER OF EARSLFERRY,LORD HOPE OF CRAIGHEAD |
| Judgment Date | 12 December 2007 |
| Neutral Citation | [2007] UKHL 57 |
| Docket Number | No 5 |
| Date | 12 December 2007 |
| Court | House of Lords |
[2007] UKHL 57
HOUSE OF LORDS
Appellate Committee
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Appellants:
Mungo Bovey QC
Simon Collins
(Instructed by Drummond Millar LLP)
Respondents:
Ailsa Carmichael
(Instructed by Office of the Solicitor to the Advocate General for Scotland)
My Lords,
For the reasons given by my noble and learned friend Lord Hope of Craighead, with which I agree, I would dismiss this appeal.
My Lords,
A decision as to whether or not an asylum seeker is in need of international protection must depend on the state of the evidence. So it is in this case. The question which lies at the heart of it is whether, following a series of appeals, the need for protection should be determined on the evidence as it stood originally or whether, before the final decision is taken, account should be taken of changed circumstances. The issue of whether a person's removal would be contrary to the United Kingdom's international obligations is always a prospective one, as it must be decided before any steps are taken to effect the removal. Common sense indicates that the final decision, whenever it is made, should be based on the most up to date evidence that is available. Facts which are of historical interest only do not provide a sound basis for a determination that an asylum seeker is entitled to protection now. This principle has been recognised by rule 32 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) which allows the Asylum and Immigration Tribunal, on reconsideration of an appeal, to admit and consider evidence which was not submitted on any previous occasion.
The appellant is a Kurdish citizen of Iraq. He entered the United Kingdom illegally in a lorry in July 2000. At that time the government of Iraq was in the hands of a repressive one-party apparatus dominated by Saddam Hussein and members of his extended family. A Kurdish Autonomous Region ("the KAR") had been formed in 1970. But relations between the two main political factions, the Patriotic Union of Kurdistan ("the PUK") and the opposition Kurdish group ("the PDK"), were extremely volatile and they often descended into armed conflict. Secret agents were also known to be operating in the area on behalf of Saddam Hussein's government. The appellant had joined the PUK. He was involved in promoting and recruiting for it while he was at university. Prior to his escape from Iraq he had been engaged in smuggling machine parts and medicines into the KAR for use by the PUK. On 31 July 2000 he claimed asylum in the United Kingdom. He maintained that he was a refugee within the meaning of article 1A(2) of the Geneva Convention on the Status of Refugees and that his removal would also be in breach of his rights under article 3 and 5 of the European Convention on Human Rights. His application was refused on 13 February 2001.
The appellant appealed against the refusal to an adjudicator under the procedure that was then in force: see sections 65 and 69 of the Immigration and Asylum Act 1999. On 29 July 2001 his appeal was allowed by an adjudicator sitting in Glasgow. If his decision had not been further appealed, it would have been treated by the respondent as final recognition that the appellant was a refugee. At that time it was the policy of the United Kingdom for indefinite leave to remain to be granted under the immigration rules once a person's status as a refugee had been recognised.
The adjudicator based his decision on two different assumptions. The first, and primary, assumption was that the return of the appellant to Iraq would mean his return to Baghdad. There was an obvious risk of imprisonment and torture if that were to happen, as the appellant was known to be someone who was politically opposed to the Iraqi State. The second, and very much secondary, assumption was that it might be possible for him to be returned to the KAR. The adjudicator accepted the appellant's evidence that even then he would be at real risk of capture or death as Iraqi secret agents moved throughout that region with virtual impunity. So he allowed the appeal. But the Secretary of State had already given an undertaking in March 2001 that he would not for the time being enforce the return of any failed Iraqi asylum seeker either to or via territory controlled by the Iraqi government. The adjudicator appears to have overlooked this undertaking. His assumption that the appellant's return to Iraq would mean return to Baghdad was incorrect.
In June 2002 the immigration appeal tribunal allowed the Secretary of State's appeal against the decision of the adjudicator. It did so for two reasons. The first was that the adjudicator ought to have accepted the Secretary of State's undertaking that Kurds from the KAR would not be returned to Baghdad. The second was based on its assessment of whether or not the appellant had a well-founded fear for a Convention reason if he were to be returned to the KAR. The tribunal concluded that there was no adequate evidential basis for a finding that Iraqi secret agents moved with impunity within the KAR. But it went one step further. It said that in its view the evidence was the other way. It showed that...
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