SM and Others (Kurds – Protection – Relocation)
| Jurisdiction | England & Wales |
| Judge | VICE PRESIDENT |
| Judgment Date | 29 June 2005 |
| Neutral Citation | [2005] UKIAT 111 |
| Court | Immigration Appeals Tribunal |
| Date | 29 June 2005 |
[2005] UKIAT 111
IMMIGRATION APPEAL TRIBUNAL
Mr D K Allen (Vice President)
Mr L V Waumsley (Vice President)
Mrs E Morton
SM and Others (Kurds — Protection — Relocation) Iraq
These appeals were listed together to enable the Tribunal to provide Country Guidance on a number of issues relating to Iraqi Kurds. Ms N. Braganza for A.S. Law Solicitors appeared on behalf of the first claimant, Mr (). Ms Braganza instructed by Douglas & Partners, also appeared on behalf of Mr (), the second claimant. Ms Y. Adedeji, instructed by Livingstone Brown solicitors appeared on behalf of the third claimant, Mr (). Mr S. Kovats, instructed by the Treasury Solicitor appeared on behalf of the Secretary of State in all three cases.
The following five issues are for consideration by the Tribunal in these appeals.
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(i) the nature of the authorities in the KAZ
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(ii) sufficiency of protection by the Kurdish authorities, the Iraqi authorities and the coalition forces generally
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(iii) the reach of the PUK throughout Iraq by means of the police and judicial systems
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(iv) the availability of internal relocation for a Kurd within the KAA.
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(v) the availability of internal flight for a Kurd in Iraq generally.
We propose as far as possible to deal with each of these issues separately, setting out the relevant evidence with regard to each issue in turn and thereafter setting out our conclusions on that evidence. Our general conclusions are set out at paragraph 279 below. First of all we set out the factual background to each appeal.
In the case of Mr () it is the Secretary of State's appeal. Mr () appealed to the Adjudicator, Mr P.J.G. White, against the Secretary of State's decision of 22 February 2002 to issue directions for his removal from the United Kingdom, asylum having been refused. The essence of his claim is as set out paragraph 15 of Mr White's determination. The appellant (as we shall refer to him) was a member of the KDP who worked in the offices of Golan Newspaper, and in particular in the copy section. This newspaper was owned by the KDP who used the printing facilities of the newspaper not only for producing material intended to be published in the newspaper but also for other printing and copying purposes including documents of a confidential and secret nature. The appellant had particular responsibility for photocopying and worked with two colleagues named Razgar and Bakir.
On 21 September 1999 the three of them were summoned to the supervisor's office and questioned about missing documents and the leaking of confidential information to the PUK. The nature of the information said to have been revealed was not specified. Subsequently Razgar and Bakir attempted to flee to the PUK area but they were both shot and the appellant was subsequently informed that Bakir had died, but before doing so had falsely implicated the appellant in leaking the information. The appellant went into hiding and subsequently fled from Iraq and came to the United Kingdom on 19 December 1999 and claimed asylum on arrival.
The Adjudicator assessed his claim, taking into account also objective evidence from Ms Sheri Laizer and other objective evidence. He found the appellant to be credible. He concluded that if the appellant were to be returned to Iraq he would still be of interest to the KDP authorities. It seems from paragraph 27 of his determination that he considered that there would not be a sufficiency of protection for the appellant upon return to Iraq. He appears to have restricted his consideration to the situation in the KAA.
In his grounds of appeal the Secretary of State contended that the Adjudicator had failed to consider internal relocation and that this would not be unduly harsh. Permission was granted to argue this point.
Mr () appealed to the Adjudicator, Mr R.A. Price, against the decision of the Secretary of State of 28 August 2003 refusing asylum.
Mr () is a member of the Barwary tribe. He said that his family farmed their land outside Zakho but had problems with the powerful Goly tribe who wanted his family land but this was refused. These problems had began mainly from 1995 but manifested themselves particularly in April 2003 when his brother Zerevan was working on the land and the appellant was elsewhere. He found out later that Zerevan had gone to the land to work and there were irrigation problems and he had then gone on the Goly land to ensure the passage of water. Whilst doing this he was insulted by a son of the Goly tribe and shot and injured this man, who later died. They knew that there would be revenge and considered they could not fight the Goly tribe as they were powerful. His father and brother fled and he also did so, leaving Iraq and going to Turkey where he remained until June and came to the United Kingdom on 2 July 2003 and claimed asylum on the 3 July 2003.
The Adjudicator found the appellant to be credible. He concluded that the Goly tribe appeared to be localised and he did not accept the appellant's evidence that that tribe, which he had described as consisting of possibly 2000/3000 members, was all powerful in the KAZ and elsewhere in Iraq. He considered that the appellant could relocate within the Kurdish Autonomous Region and was satisfied that there would be a sufficiency of protection there.
He bore in mind however, the decision of the Court of Appeal in Gardi [2002] EWCA Civ 750 in which it was stated that the Kurdish Autonomous Region would not meet the criterion of being a state or state-like entity capable of providing protection for the purposes of the Refugee Convention. He felt constrained to follow Gardi. He went on however to consider that there was no reason why the appellant should not relocate elsewhere in Iraq and that it was not credible that a relatively small tribe, however powerful, would be able to locate him and enforce the blood feud. Though the security situation in Iraq was unsatisfactory at the time, he considered that there was no reason to find that the Coalition Forces and/or the present temporary government in Iraq would not be in a position to provide a degree of sufficiency of protection.
In the grounds of appeal it is argued firstly, that the Adjudicator had failed to consider whether there was a Refugee Convention reason in this case and erred in failing to address the objective material on the issue of internal relocation. Secondly, it is argued that the Adjudicator should at least have considered adjourning the appeal to allow the appellant who was unrepresented at the hearing to obtain evidence on the question of relocation and also the question of sufficiency of protection. Subsequent to the hearing a report from Mr Joffe had been obtained which it was contended would support the appellant's claim that he could not relocate within Iraq. The other matter raised in the grounds of appeal concerned why the appeal was out of time, and the Vice President who granted permission to appeal saw merit to this and also considered that the Adjudicator might not have given sufficient consideration to the issues of sufficiency of protection and internal relocation.
Mr () appealed to the Adjudicator, Mr J.G. Macdonald, against the decision of the Secretary of State of 5 November 2001 to issue directions for his removal from the United Kingdom, asylum having been refused.
Mr () had been a member of the PUK until 1995. In 1983 a PUK organiser, Omer Hamakaki had murdered the appellant's uncle, Mulla Omer. When the appellant stopped working for the PUK in 1995 he opened his own business as a hairdresser. His cousin, Aso, the son of Mulla Omer, came to visit him on 3 June 2000 and on 10 June he was in his hairdressing salon and Aso was with him. Aso saw Omer Hamakaki pass by the shop and shot him, killing him, and fled to the appellant's sister's house. The appellant felt that he also had to run as he feared that Hamakaki's family would take immediate revenge upon him.
Both Aso and the appellant's brother were arrested in connection with the murder. The appellant's brother was released. Aso was killed by the family of Omer Hamakaki and his relations and the PUK, according to the appellant's answer to question 24 at interview. The Hamamaki family belonged to the Jaff tribe which the appellant said was present throughout the whole of Iraq. He also claimed that although Aso had been killed by Hamakaki's family the tradition of revenge killing had not been satisfied, and he was perceived as being involved in the murder.
He produced various documents including a letter issued by a PUK commander indicating that he was involved with Aso Omer in the killing of Mr Hamakaki, and also describing the appellant and containing instructions that he be arrested.
The Adjudicator accepted the appellant's evidence, including the fact that he was not involved in any way with the murder. He accepted that the documentation was genuine and noted that in essence his claim was that he feared persecution by Hamakaki's family and the Jaff tribe because the PUK would not be able to protect him and that he would not be safe anywhere in Iraq. He was not claiming that he would be persecuted by the PUK and it appeared that if returned to the PUK area he was likely to be questioned, detained and put on trial for his involvement in the murder. His fear was essentially that he could not escape the family of the deceased who would be determined to carry out an honour killing involving him. The Adjudicator proceeded on the basis that notwithstanding the lapse of time and the revenge killing of Aso there remained a risk that Hamakaki's family would continue to be interested in the appellant.
The Adjudicator went on to note the objective...
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