SG (Iraq) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 03 August 2011 |
| Neutral Citation | [2011] EWHC 2428 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/9443/2010 |
| Date | 03 August 2011 |
[2011] EWHC 2428 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Langstaff
CO/9443/2010
Mr Declan O'Callaghan (instructed by Messrs Duncan Lewis) appeared on behalf of the Claimant
Mr David Blundell (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
This is a renewed application for permission to apply for judicial review in the case of an Iraqi Kurd who applied to review a decision made on 26th August 2010 to remove him from the jurisdiction on 6th September 2010. Permission was refused on the papers by Lindblom J.
There are three planks in the amended grounds for which permission was granted without resistance from the Secretary of State at the start of these proceedings. They are, first, that there are ongoing proceedings before the Court of Appeal (originally, it had been said, before the Upper-tier Tribunal) in a case which has become known as HM (Iraq) and which represents country guidance; secondly, that there is a possibility of suicide in this claimant's case because of his psychological state, this being based upon a report of a Dr Sarkar; and, thirdly, because of the potential ill treatment on arrival in Baghdad en route to his home in Kurdish territory.
In form, it is an application to review the Secretary of State's decision to refuse to treat fresh representations as a fresh claim under rule 353, to which it is common ground this court should apply a review test.
The chronology is that the claimant came to the United Kingdom on 17th April 2002 and applied for asylum. That was refused in July 2003 and an appeal against that decision dismissed in November 2003. He made a further asylum application on 3rd April 2007, which, again having been refused, was appealed and the appeal against that was dismissed on 23rd September 2007. That gave rise to the setting of removal directions.
The Secretary of State has made no secret of her intention to remove this claimant from the jurisdiction.
He was not regarded as giving a credible account by an immigration judge on each of the two occasions that his asylum appeal was heard and determined. Independently, each reached the same conclusion.
The doctor's report upon which heavy reliance was placed, prepared by Dr Sarkar after the last dismissal of his asylum claim, is plainly a measured and professional report. In answer to question number 7, whether the claimant would be at risk of self harm or suicide whilst in detention or en route to Iraq or after arrival in Iraq, he replied:
"I have answered this in paragraph 3 above. Without proper and aggressive treatment, the risk of suicide will remain high whether he is in prison, en route to Iraq, or after arrival in Iraq. Of course the more accute the stress, such as forcible removal or finding himself in 'enemy territory' so to speak (as he considers Iraq hostile to him, whether or not it is true) will only increase the risk of attempted or completed suicide."
At paragraph 3, he had earlier identified people suffering from schizophrenia as dying at their own hands in ten per cent of cases irrespective of the setting. That gave rise to a high risk in the claimant's case wherever he might be.
The Secretary of State was not in terms asked to relate the circumstances in which the claimant was likely to be on arrival in Iraq to his schizophrenic state when determining whether that might be evidence upon which an immigration judge might conclude that there was an unreasonable risk of treatment contrary to Article 3 so as to justify restraining removal from this jurisdiction, at least for the time being. Rather, the principal thrust of the case centres entirely upon the question of whether the Secretary of State was entitled to rely upon the country guidance decision of HM.
What has given rise to arguability, so submits Mr O'Callaghan, is this. In the case of HM v Secretary of State for the Home Department, with the United Nations High Commission for Refugees intervening, reported at [2010] UKUT 331 (IAC), a decision of Blake J as President with two Senior Immigration Judges, the Upper Tier Tribunal purported to lay down country guidance. It concluded that there was no such risk to returnees to Iraq as to sustain any argument that that would breach Article 3 of the Convention.
Leave to appeal was granted on 15th April this year by Pill LJ. He reasoned as follows:
"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 on the merits and article 15(c) may be argued."
The difficulty is in knowing precisely what was put before Pill LJ which he thought arguable on appeal and what the consequences should be. Mr Blundell, who appears before me, is junior counsel for the Crown in the case of HM. He is able to help to this extent. HM was decided without any of the four appellants being represented before the Tribunal. One appellant, by his representative, went so far as to indicate that was because an expert report did not coincide with that which he had expected and upon which he might have wished to base his appeal. But it meant that there was no effective representation by those parties.
Secondly, the case was heard between 8th and 10th June 2010. On 9th June 2010 there was a charter flight to Baghdad. It was one of three which went last year. There were two in June and one in September. As to that charter flight, the solicitors acting independently for two of the returnees have subsequently filed statements which showed that they were told by their clients that they had suffered significant ill treatment on return.
A Ms Sicher and a Sean McLoughlin gave such evidence and have given such evidence to me. There were other unsubstantiated reports in the press that something of that sort had occurred. This came to the knowledge, it would appear, of Blake J, perhaps through other proceedings, because HM certainly made reference to it, (see paragraphs 166 through to 184). The Upper Tribunal considered that evidence, which may not have been as detailed as the evidence now put before me. It concluded that, having considered it, (see paragraphs 267 to 270) that it had not found the evidence entirely satisfactory, not least because it was incomplete. Investigations were ongoing. But it was able to say, at paragraph 270:
"…we certainly do not consider that these [that is concerns] demonstrate that enforced Iraqi returnees are likely to experience ill treatment in the course of the returns process."
Accordingly, the only conclusion available is that the Upper-tier Tribunal did consider the substance of the complaints and felt able to resolve them to the extent that it did in paragraphs 267 and 270.
If that country guidance is accurate and to be followed, then there is no prospect of success for this claimant in this case. Mr O'Callaghan accepts that. He does submit, however, that this is one of those exceptionally rare cases in which a country guidance case may not be followed. He accepts that the general principle is that (see the practice guidance, see the self denying references there have been by the Court of Appeal itself when dealing with country guidance cases) a country guidance case is treated as binding unless it is so old that it is plainly no longer applicable or unless and until it is successfully appealed. He accepts that a case which is subject to appeal nonetheless represents the law until such time as any appeal court subsequently differs from the decision, to the extent that it does.
It is a trite proposition, for instance, that if a decision of the Court of Appeal is appealed to the Supreme Court, it stands nonetheless as the law for the time being. Such an appeal does not justify a stay. He submits, however, that, if I were not to grant permission in this case, I should grant a stay. There are exceptional features in relation to this country guidance case arising out of those peculiar procedural problems in HM. Secondly, there is no sufficient evidence here that the Secretary of State in her decision letter of 17th January 2011 took account of the combined circumstance of schizophrenia and suicide risk and that which HM recognised as fact, which is that a returnee is always likely to spend some time in detention because it is the invariable practice to bring returnees before a judge in Iraq...
To continue reading
Request your trial
-
SG (Iraq) v Secretary of State for the Home Department
...[2011] EWHC 3818 (Admin) John Bowers QC (sitting as a Deputy Judge of the High Court) [2012] EWHC 828 (Admin) Mr Justice Langstaff [2011] EWHC 2428 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Maurice Kay Lord Justice Stanley Burnton and Lord Justice Gross Case Nos:......
-
Upper Tribunal (Immigration and asylum chamber), 2013-08-27, AA/02964/2011
...merely because a person has told lies.” Mr Jorro relied on what was said in the Court of Appeal by Stanley Burnton LJ in SG (Iraq) [2011] EWHC 2428 (Admin) at paragraph 47 of his judgment (with which the other members of the court “... Decision makers and Tribunal judges are required to tak......