Upper Tribunal (Immigration and asylum chamber), 2007-10-23, [2007] UKAIT 87 (HA (WCPI, IMIK, KRG))
| Jurisdiction | UK Non-devolved |
| Judge | Miss K Eshun, Mr C P Mather, Mr J H Eames |
| Status | Reported |
| Date | 23 October 2007 |
| Published date | 24 October 2007 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 31 May 2007 |
| Subject Matter | WCPI, IMIK, KRG |
| Appeal Number | [2007] UKAIT 87 |
Asylum and Immigration Tribunal
HA (WCPI – IMIK – KRG) Iraq CG [2007] UKAIT 00087
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 31 May 2007 |
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Before
Senior Immigration Judge Eshun
Senior Immigration Judge Mather
Mr J H Eames
Between
HA
Appellant
and
Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: Mr A Briddock, counsel, instructed by Alsters Kelley Solicitors
For the Respondent: Mr M Blundell, Home Office Presenting Officer
There is no satisfactory evidence that WCPI members in the Kurdish Regional Governorates are at risk from IMIK or anyone else. There is some evidence that the WCPI has a presence both in the KRG and the rest of Iraq.
There is no satisfactory evidence that IMIK now enforces its views by violent means in the KRG. It has six seats in the KRG parliament.
This determination does not consider issues relating to the WCPI or IMIK in the parts of Iraq that are not in the KRG. This determination supersedes DH (Risk – IMIK – KAA) Iraq CG [2002] UKIAT 05099 but does not consider issues relating to the WCPI or IMIK outside the KRG.
DETERMINATION AND REASONS
1. The appellant is a citizen of Iraq. He was born on 1 July 1976. He is a Kurd and used to live in the area now known as the KRG (the Kurdish Regional Governorates). It was previously known as the KAZ (the Kurdish Autonomous Zone). He is a member of the Workers Communist Party of Iraq (known variously as the WCPI and WCPI) and he expressed fear of both the PUK (Patriotic Union of Kurdistan) and the IMIK (the Islamic Movement of Kurdistan) if he were to be returned to Iraq.
Immigration history
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The appellant claims to have left Iraq by car on 6 November 2001, and to have travelled via Iran to Turkey, arriving in the United Kingdom on 4 December 2001. He says that he claimed asylum the same day. His application was refused on 17 May 2002. An appeal was dismissed on 16 September 2002, apparently without considering the merits. He made a fresh claim for asylum on 15 December 2004 which was refused on 14 April 2005. He again appealed. The appeal was heard by Immigration Judge Kumrai on 20 June 2005. That appeal was dismissed on both
Refugee and Human Rights Convention grounds.
Basis of the Appellant's claim
3. The appellant claimed to be from the Province of Sulaymaniyah and said that he was a journalist for the Kurdistan New newspaper, which was a PUK publication. He claimed that he wrote about daily life in Kurdish society under the control of the PUK and did not criticise the PUK directly. He did however highlight weaknesses in the PUK’s authority. He claimed that one of its leaders (Imat Ahmed) disliked him because he had exposed the inadequacies in its authority, mainly relating to energy and electricity supply. Imat Ahmed was said to be not only a member of the PUK leadership, but also Minister of Industry and Energy for the area.
4. The appellant claimed to have become a member of the WCPI on 12 December 1999 and thereafter began to write articles for the communist newspaper, Bo Peshawe. He continued his employment with the Kurdistan New newspaper. Bo Peshawe was banned on 24 June 2001 and at the same time some members of the Party were attacked and killed. The appellant claimed to have passed information to the communists from PUK newspaper archives.
5. Prior the banning of Bo Peshawe, the appellant claimed to have written articles for it that were critical of both IMIK and the PUK. Although he initially wrote articles using his own name, he later used an alias. He claimed that he was threatened by IMIK members because of critical articles he had written for the Kurdistan New Newspaper. He claimed to have been attacked on 20 July 2001 by people that he believed to be members of the IMIK. He believed that because they had beards and dressed like members of IMIK. We note he said that, notwithstanding that he was taken unconscious to hospital. The police apparently took a statement and carried out some inconclusive investigations. He did not report the attack to any other PUK authority, because he did not know who the people were. The appellant also claims that he received an ‘arrest warrant’ from IMIK on 9 October 2001. This alleged that he was anti-Islamic because of his writings. Finally, he claimed that, on 29 October 2001, his brother was shot dead by members of IMIK as they were walking together. The appellant believes he was the intended target. He believes it was also carried out by IMIK members, because the men who fired the shots had long beards and wore Islamic dress. He reported his brother’s killing to the police but not any other PUK authorities.
6. The appellant claimed that he ceased working for the Kurdistan New newspaper on 3 November 2001. On that day a friend, F, with whom he had worked in secret for the WCPI, was arrested by PUK security and intelligence services. The appellant believes that F confessed to the PUK that they had passed on information to the Communist Party and that consequently, the next day, the PUK security forces visited the appellant's house looking for him. He claimed they also looked for him at the offices of the newspaper. He was told about the visit by his mother. As a result, he immediately went into hiding, prior to leaving Iraq on 6 November. The appellant said he could not then have sought refuge in the KDP (Kurdistan Democratic Party) controlled area because the KDP and PUK were by then cooperating and he would have been handed back to the PUK authorities. He also maintained that if he returned to the KRG, or to any other part of Iraq, he would be identified and killed by IMIK. He said it was because his writings had offended them, that they had issued what he described as the arrest warrant against him, as well as trying to kill him. He also said that he was wanted by the PUK authorities for having passed on confidential information about them to the Communist Party.
The Appeal before the Immigration Judge
7. At the hearing of the appeal the appellant's credibility was not challenged by the respondent. The only issue was the question of risk on return. The Immigration Judge summarised by saying that the appellant's evidence had been consistent in relation to the core of his claim and that he had expressed a current fear of both IMIK and the PUK. The Immigration Judge found that the appellant had established a genuine current fear of return but that, in respect of both IMIK and the PUK, the fears were not well-founded. He dealt with the fear of the two organisations separately, starting with IMIK. He summarised the evidential difficulties by referring to the ‘arrest warrant’ and the death of the appellant's brother. He said that the appellant's evidence in relation to the incidents was ‘speculative’. It was not persuasive because he was not able to identify the men who attacked him on 25 July as members of IMIK, at the time. He said that at the time of the killing of his brother he had not been certain that the perpetrators were members of IMIK despite the long robes and Islamic dress, although he believed them to be so. The Immigration Judge found that it was speculative to say that the IMIK had discovered he was responsible for articles published against their ideology. He found it was highly questionable that the IMIK had any authority or jurisdiction to issue a valid arrest warrant. Mr Briddock before us conceded that the evidence (both then and now) did not establish any power or jurisdiction for IMIK to issue valid and lawful arrest warrants. In considering the ‘warrant’ the Immigration Judge referred to Tanveer Ahmed [2002] UKIAT 00439. He said he had not looked at the document in isolation, but with all the other evidence in the round to see whether he should place any reliance on it. He decided not to place any reliance on it despite finding that the appellant was credible; he said that it could be that IMIK members threw the document into the appellant's house to frighten him, but it was not a valid and lawful arrest warrant.
8. The Immigration Judge went on to consider IMIK. He described it as an Islamic militant group, whose political affiliation and motivation were unclear. He observed that the June 2000 Netherlands General Official Report on Iraq indicated that relations between the PUK and IMIK had normalised since entering into negotiations together. He then addressed what he described as the nexus test, to decide whether any persecution would be on account of the appellant's political opinion. He concluded that the incidents on 25 July (the attack by two men with beards and Islamic dress), 9 October 2001 (the ‘arrest warrant’) and 29 October 2001 (the death of his brother) were not motivated by political opinion held by the appellant, and known to the perpetrators. We note that he did not consider whether a perceived political opinion could have been the reason for the incidents. Strictly, he should have done because that may have been enough to establish a Convention reason. He also said the appellant had failed to establish that there were substantial...
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