SR (Iraqi Arab Christian: relocation to KRG)

JurisdictionEngland & Wales
JudgeAllen,Mather,Mr P Bompas
Judgment Date29 July 2009
Neutral Citation[2009] UKAIT 38
CourtAsylum and Immigration Tribunal
Date29 July 2009

[2009] UKAIT 38

Asylum and Immigration Tribunal

THE IMMIGRATION ACTS

Before

SENIOR IMMIGRATION JUDGE Allen

SENIOR IMMIGRATION JUDGE Mather

Mr P Bompas

Between
SR
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Ms G Brown, Counsel instructed by Kingston & Richmond Law Centre

For the Respondent: Mr K Kyriacou, Home Office Presenting Officer

SR (Iraqi Arab Christian: relocation to KRG) Iraq CG

An Iraqi Arab Christian at risk in his home area and throughout central and southern Iraq is likely to be able to obtain the documentation needed by a person wishing to relocate within Iraq, and is likely to be able to relocate to the KRG with the assistance of a sponsor, in particular, on the basis of the latest statistics available, in Erbil or Dohuk.

DETERMINATION AND REASONS
1

The appellant is a national of Iraq. He appealed to an Immigration Judge against the Secretary of State's decision of 18 September 2006 to remove an illegal entrant from the United Kingdom.

2

The Immigration Judge found the appellant to be credible and made the following findings. He found that the appellant and his family are practising Christians and had suffered from discriminatory remarks relating to their religion, although no direct threats of violence relating to his religion had been made. With the exception of a letter that was left in the appellant's shop, there was no evidence of any other written threats for either religious or political reasons. The appellant had travelled legally to the United Kingdom in March 2006 and had returned in accordance with the terms of his visa on July 5 2006. Following his return to Iraq from the United Kingdom the appellant did not receive any face-to-face threats of violence. He specifically told the Immigration Judge at the hearing that there had been no threats made to him directly. The letter referred to above was received at his shop on 27 July 2006 and he was warned to leave Iraq or be killed. He made arrangements to leave Iraq immediately. Since his return to the United Kingdom there has been no evidence that any of his family has been approached by the military group or any other group. One of his brothers had been shot at in the street but there was no evidence that that shooting was by the militia group in question nor was there any evidence as to why he was shot at. No one had visited the appellant's house or shop looking for him, despite him being told he must leave the country by 1 August 2006.

3

The Immigration Judge went on to consider relevant country guidance decisions and background evidence including a report by Dr Alan George. He concluded that the appellant did not face a real risk of persecution or ill-treatment giving rise to a breach of his human rights on return to Iraq.

4

The appellant sought reconsideration of this decision, arguing that in fact the evidence showed that conditions for Christians in Iraq were such as to engage the appellant's rights under the Refugee Convention. Reconsideration was ordered by a Senior Immigration Judge.

5

At a hearing on 6 November 2007 a Senior Immigration Judge identified an error of law in the Immigration Judge's determination as follows:

“While the Immigration Judge has not said so in terms, it may be inferred from the determination as a whole that he believes the appellant to have a well-founded fear in his home area of Mosul. He deals with internal flight at paragraphs 78 to 81 of the determination, but only gives reasons why relocation to another part of Iraq would be safe for the appellant. He gives no reasons why it would be reasonable to expect him to relocate. The reasons why the judge thinks that the appellant would be safe elsewhere revolve around the finding that the militia are not looking for him in Mosul, which appears to contradict the (implicit) finding that the appellant has a well-founded fear in Mosul.

Credibility as such has not been challenged in the ‘reasons for refusal’ letter, which takes the view that the appellant's account of what happened to him in Mosul amounts to discrimination, rather than persecution. A clear finding needs to be made at the ‘second stage’ of the reconsideration on whether the appellant has a well-founded fear of persecution in Mosul and, if so, whether relocation to either the Kurdish Regional Government or central and southern Iraq is feasible, safe and reasonable for this appellant, who is a Christian.”

6

At a for mention hearing on 15 August 2008 it was accepted on behalf of the Secretary of State that the appellant had a well-founded fear of persecution in Mosul and perhaps other areas in Iraq as well and the appeal would therefore turn on the question of relocation to the KRG.

7

The hearing before us took place on 6 November 2008. Ms G Brown, instructed by Kingston & Richmond Law Centre, appeared on behalf of the appellant. Mr K Kyriacou appeared on behalf of the Secretary of State.

8

Ms Brown made an application under Rule 50 of the Procedure Rules for the exclusion of any or all members of the public from the hearing. This was on the basis of the appellant's concerns for his family members in Mosul and was essentially precautionary. Mr Kyriacou had no objection.

9

We considered the matter. It is provided in Rule 54(3) of the Procedure Rules that:

“(3) The Tribunal may exclude any or all members of the public from any hearing or any part of a hearing if it is necessary –

  • (a) in the interests of public order or national security; or

  • (b) to protect the private life of a party or the interests of a minor.

(4) The Tribunal may also, in exceptional circumstances, exclude any or all members of the public from any hearing or part of a hearing to ensure that publicity does not prejudice the interests of justice, but only if and to the extent if that it is strictly necessary to do so.”

10

There were no submissions made contrary to Ms Brown's submission. We concluded out of caution that in order to protect the private life of the appellant it was necessary to exclude members of the public from the hearing and accordingly we acceded to the request to order exclusion. In fact the matter was academic because there were no members of the public at the time or so far as we understand at any later stage wishing to attend the hearing.

11

Ms Brown said that she was not proposing to call the appellant unless the Tribunal wished him to be called as there was no extra evidence for him to give. She did however propose to call evidence from the appellant's sister, Dr EP. She did not propose to call the solicitor in respect of the evidence in the statement. There would be two expert witnesses.

12

Mr Kyriacou said that he would have no questions for the appellant and he accepted the solicitor's evidence in her statement.

13

We raised with Ms Brown the question of whether there was an issue as to how the appellant would behave on return in light of what had been said in HJ (Homosexuality: reasonably tolerating living discreetly) Iran [2008] UKAIT 00044. It had been held there that it was an objective test as to whether it was reasonable to believe that a person would behave subjectively as they said they would. It was a potential Article 9 flagrant breach point.

14

On considering the matter and taking instructions Ms. Brown stated that in her view the appellant did not need to give evidence.

15

Dr EP gave evidence. She is a British citizen and the sister of the appellant. The contents of her statement dated 22 October 2008 were true and correct and she was content for them to be considered as part of her evidence today. Likewise the contents of her letter of 6 November 2006 were true and correct and she was happy for them to form part of her evidence along with her brief letter at C12. She had formerly been a medical doctor and was now a herbalist.

16

In cross-examination the witness said that she had four brothers including the appellant, and one sister. She was asked where her brother, Mazin, was and she said she could not tell exactly where because he was not at one address. He was in Mosul or around Mosul. She had last had contact with him a few days ago by telephone. This was the only way but that was not easy and it could take a long time. She contacted him via a mobile number which was the number of the telephone belonging to Mazin. Sometimes he would switch if off as a precaution so she would try to contact him via his wife. He was with his wife and three children and also with the witness's and Mazin's mother.

17

Her brother Yunis was in Syria. Her brother Mahur was also in the Mosul area and lived with his wife but not with Mazin. Her sister was married. Her sister's husband had received a threatening letter and they had had to leave and again had no fixed address but again she believed they were in the Mosul area. Her sister's husband was a Christian.

18

She was asked whether they told her of any specific incidents or threats directly. She said that it had lasted a long time, for the last two years, and they had all experienced stress and fear and every day there was a new threat and it was more and more frightening. It was unclear whether a person would get back if they left their home. She was referred to the direct threat made to the appellant and the other e-mail threats and she was asked whether there had been any other direct threats to any other family member. She said that she did not know of anything like that. She was asked what she thought about the suggestion that the appellant could return and go and live in the Kurdish area where he would be safe. She said that that area had its own government and unless you were Kurdish and had ID to prove you were Kurdish you could not move there or live and get a job or buy a house. You might live as a refugee or fugitive but would not be living a proper life.

19

She was...

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5 cases
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