HH (Iraq) v Secretary of State for the Home Department

LORD JUSTICE RICHARDS: The appellant is a 30-year-old citizen of Iraq who came to the United Kingdom in February 2005 initially as a visitor. He then applied unsuccessfully for leave to remain under the Highly Skilled Migrant Programme and also as a student. In June 2005, following the refusal of those applications, he claimed asylum. His claim was refused by the Secretary of State and an appeal on asylum and human rights grounds was dismissed by an Immigration Judge. But the AIT ordered a reconsideration by way of a fresh hearing, which took place in February 2006 before a different Immigration Judge, Dr K F Walters. In his decision, promulgated on 24 February 2006, Dr Walters likewise found against the appellant.

An appeal is now brought against his decision with permission granted by a Senior Immigration Judge of the tribunal. The appellant’s case was that he risked treatment in breach of the Refugee Convention and the ECHR if returned to Iraq, essentially on account of his being a Shia Muslim who had worked with, or would be perceived as having worked with, the Americans.

Prior to the invasion of Iraq he had worked as a civil engineer and had obtained a degree. He was married and lived with his wife in the Sunni Muslim area of Yarmouk but, because of growing tensions, they moved to a Shia Muslim area where they lived with his mother and sister. Shortly after the invasion he and his wife returned to their home in Yarmouk. Initially he was unable to work, but after the war he returned to his employment. He said that he used to travel to and from work on a bus provided by his employer. On the bus he got talking to a man called Jassim, who he soon realised was an Islamic fundamentalist, and who declared that the appellant was a traitor because he was a Shia Muslim who supported the Americans.

In his employment the appellant worked with Americans and, when American engineers came to the office, he was allocated to them. He said that he began to receive warnings not to speak to or approach Americans. People in the office began to say he had a suspicious background because he was associating with Americans and had family in the West. In February 2004 he was told by his work supervisor that he had been selected to study in the USA. He was to be part of a group that would study first under the Americans in Iraq and then travel to the USA for further training. In the event, however, the security situation caused all this to be delayed and it seems that nothing came of it.

At about the same time he said that he was told by his personnel manager that he had been selected to work in the west of Iraq, which the appellant considered to be a very dangerous area. He thought he was being asked to make a choice between working there or going to the USA and becoming associated with the American military, which would be seen as a betrayal of the Iraqi people. Since he knew that work in the west of Iraq would place him at risk, he declined it, but he was thereafter very frightened that he would be targeted. He requested a transfer to another office and, in mid-2004, was transferred to work in a district of Baghdad mainly inhabited by Sunni Muslims.

In August 2004 he and his wife separated. She returned to live with her parents. The following month he discovered that his brother’s wife’s cousin had been abducted because, it was said, he worked with the Americans. The appellant became very concerned about people being abducted and killed because of perceived connections with the Americans. He contacted his family in this country, who arranged an appointment for him at the British Embassy in Syria, so that he could apply to travel to this country as a visitor. He went to Syria with his sister and was told to return in November for an interview. He went back to Iraq, then learnt that the borders had been closed and had no choice but to remain. He returned to work.

Subsequently he was informed by his immediate manager that he should be very careful because he was suspected of disloyalty and was being watched. He was among those suspected of writing emails to the effect that advisers to the Ministry of Irrigation had been involved with the Ba’ath party and should be investigated and punished. He said that at his office he also met a man called Gaith with whom he shared many political views. In December 2004, however, he found that Gaith had been abducted and Gaith was subsequently found dead. The appellant said that Gaith had been targeted because he was a devout Shia Muslim who openly gave his views about politics, in particular on the importance of democracy.

Concerned about what had happened to Gaith, the appellant travelled at the beginning of January 2005 to stay with relatives at Najaf, where he remained for over a week. Eventually, he returned to his house in Baghdad, where he found a printed letter addressed to him stating opposition to the elections and that those who supported the elections were pro-American and should be killed. Although very frightened, he still voted. When he arrived to vote he was questioned by an American television crew about his views on the elections. He was told the programme would be shown only in the USA. He explained that he was voting because he wanted a new Iraqi regime that could protect him. Not long afterwards, a friend told him he had seen the appellant being interviewed on Iraqi television about the elections. The appellant also learnt from colleagues at work that the driver of his work bus, who was a Shia Muslim and had voted in the elections, had been abducted.

As a result of all these matters, he said that he was very afraid and decided to go to Najaf to stay with his family. While there he learnt that the borders had reopened, so he travelled to Syria with his sister. He went to the British Embassy where he was issued with a visa for the United Kingdom. He took his sister back to Najaf and then travelled on alone to Jordan and from there to this country.

That was his account. I turn to consider how the judge dealt with it. I will concentrate on the judge’s reasoning in relation to the asylum claim. Insofar as he dealt with additional matters in the context of the human rights claim, nothing material arises on them for the purposes of this appeal.

The judge concluded that being a Shia Muslim simpliciter did not create a risk of persecution on return to Iraq. He then turned to consider the contention that there were key features of the appellant’s own account that were suggestive of risk on return. Among the matters he picked out were these. As to the appellant’s account of his conversation on a bus with a man called Jassim, the judge said that there was no other record of that conversation and he had no means by which to measure the accuracy of what the appellant claimed were the words of Jassim. He stated:

The judge considered the evidence of an American engineer called Matt McPherson, with whom the appellant had been in contact at work. He found nothing in that evidence to persuade him that the appellant might be perceived to be pro-American. He described the appellant’s involvement as attendance at a lecture delivered by Mr McPherson, participating as a civil engineer and perceived to be a junior among his colleagues. The judge was equally unimpressed by the appellant’s broader claim to have had contact with American engineers in the course of his employment. He said that the appellant had been working alongside other Iraqis, both Shia Muslims and Sunni Muslims, merely providing American engineers with information about, presumably, engineering projects. He did not consider that this would have caused the appellant to be considered as pro-American.

As to the appellant’s suggestion that the offer of a job in the west of Iraq was a test of his loyalty, the judge stated :

The judge dealt in a similar way with the claimed abduction of the brother’s wife’s cousin, the abduction and death of a colleague, Gaith, and the abduction of the bus driver. He said:

One sees the same concern in relation to the appellant’s account of being told at work that he was being watched and was suspected of having sent accusatory emails. The judge said:

In relation to the printed letter received by the appellant at the time of the elections, the judge said that he could not find any credible evidence which persuaded him that the appellant was targeted for anything other than anti-election literature, which was quite common at the time. In relation to the alleged broadcast in Iraq of the appellant being questioned by an American television crew, the judge said that the appellant was entirely dependent on the account of another person. The evidence was secondhand and of virtually of no evidential weight and, even if it were accurate, nobody would have any recollection of the appellant’s interview a year or more after the broadcast.

The judge then stated at paragraph 81 :

The judge then examined the reasons put forward for the appellant for not claiming asylum upon arrival in the United Kingdom. He rejected an argument that the appellant had been in fear of the police and, given the appellant’s applications for leave to remain both under the Highly Skilled Migrants Programme and as a student, the judge did not consider it credible that the appellant, as he had said in evidence, did not know how to go about claiming international protection. He also found, in the light of the oral evidence, that when the appellant left Iraq he did not intend to return there.

The judge concluded at paragraph 85:

In the alternative, however, the judge made the following finding on internal relocation at paragraph 86 of his decision:

He went on to refer to ex parte Robinson [1998] QB 929, and other authorities, and to record his conclusion that the appellant would not be at risk outside his home region. Indeed, he pointed out that the appellant had not suffered any harm wherever he had lived. It was for all those reasons that the judge dismissed the asylum appeal.

The grounds of appeal before us have a degree of overlap. But I think it most helpful to take them seriatim .

Under ground 1, Mr Symes, on behalf of the appellant, submits that the judge erred in law in excluding aspects of the appellant’s account from consideration in the round, on account of their being hearsay or uncorroborated. He points out that there is no requirement of corroboration in asylum cases and that it is well recognised that a person claiming asylum cannot necessarily be expected to support all his statements by documentary or other proof.

For my part, I see no error of law by the judge on this point. He did not require corroboration or say that in the absence of corroboration the claim must fail. He simply took into consideration, when deciding on the weight to be placed on the appellant’s account and the credibility of the appellant’s alleged fear of persecution, the vague and speculative nature of aspects of the account given. In that connection, the appellant’s lack of personal knowledge of many of the matters about which he gave evidence was plainly a relevant factor. So, too, was the lack of any supporting evidence or detail. Nor did the points on vagueness and speculation stand alone. I have touched briefly on the various matters that the judge went through before reaching his overall adverse conclusion. In my view, that was a perfectly permissible process of reasoning.

Under ground 2, it is contended that the judge was wrong in law to find that the evidence regarding the threat from Jassim, the man on the bus, was lacking in substance. There was a failure to take into account relevant country evidence which showed that threats of intimidation were common in Iraq, and which was therefore consistent with Jassim’s threats being true and capable of raising a genuine issue as to risk of harm. It is further contended to be self-evident that evidence of threats in the Iraqi environment is likely to be vague and second-hand, and that intimidation that revealed the methodology of its intended execution would render the intimidators vulnerable to detection; so that, again, one would not expect much in the way of detail in support of threats made to the appellant.

I think it is clear, from the judge’s decision, that he had the objective evidence well in mind and was fully aware of the very difficult environment in Iraq. He states in terms, in paragraph 41 of his decision, that he has taken fully into account the general country information and there are references throughout the decision which show that that is no mere empty recitation of a formula but that the judge did indeed have that material in mind. Against that background, the judge focused, as he should, upon the evidence concerning the appellant’s own particular position, including matters such as the threats attributed by the appellant to Jassim. I do not accept that he failed to take relevant matters into account or that the conclusion he reached was an irrational one.

Ground 3 is another way of attacking the judge’s approach to the Jassim incident. It is submitted that since, in his written statement, the appellant gave a detailed account of his exchanges with Jassim, the judge was simply wrong to find what the appellant said about it to be vague. In my view there is nothing in the point. I find it quite impossible to say that the assessment made by the judge, having considered the written evidence and having heard the appellant give oral evidence, was one that was not reasonably open to him.

Ground 4 involves a number of submissions by Mr Symes that the judge erred in various respects in his evaluation of the evidence in the round. It is said that he failed to consider whether the appellant’s family background and own past experiences would raise his profile, as opposed to whether they gave rise to freestanding fears, and that his findings that the appellant would not be considered pro-American failed to take into account country evidence about the increased targeting of Iraqi civilians employed by the UN, by NGOs and by foreign contractors. Reference is made to the Home Office Country Information Report at paragraph 6.325. It is said that the risk category of association with the Americans is more broadly drawn than merely working with the American military, and that the appellant was in an inner circle of delineated risk, in a more dangerous position than those simply working for foreign contractors but tarred by association with the military themselves.

As regards the appellant’s background, as Miss Chan points out in her skeleton argument, it is far from apparent that reliance was being placed by the appellant on his family history on the basis that it generated a fear that he would be recognisable to Sunni insurgents as a result. But, in any event, I see nothing in the decision to suggest that the judge erred in his approach on this matter. He concluded that the removal of the appellant’s father from office as judge in 1968, about which some evidence was before him, had no causal connection with issues relevant to the asylum claim. He also observed that the fact that the appellant had chosen voluntarily to live and to return to live in a Sunni Muslim area suggested that the appellant felt comfortable in so doing. I see no legal error or irrationality in the judge’s approach here.

As to the second point, concerning association with Americans, this is really at the heart of the reasons why the Senior Immigration Judge gave permission to appeal to this court. She raised the question whether the judge dealt adequately with the issue of collaboration or association. Here too, however, I would accept the submission made by Miss Chan in her skeleton argument that the judge examined the question carefully. The appellant was not employed by the coalition forces, by the UN, by foreign contractors or by the new interim Iraqi government. Nor could he be perceived as being so. The judge was entitled to find that merely providing American engineers with information about engineering projects, an activity in relation to which the appellant was associated with other Iraqis, both Shia Muslim and Sunni Muslim, was not an activity which would lead Sunni insurgents to consider him to be pro-American and to target him in consequence. The contact with Mr McPherson had been tenuous. The applicant, in his capacity as a junior engineer, was one of many who attended a lecture by Mr McPherson. The assessment by the judge that neither this nor the appellant’s activities overall would result in his being perceived as pro-American, or would place him at risk, was an assessment reasonably open to him. But the fact that the appellant himself had not claimed asylum earlier than he did was another factor that the judge properly took into consideration. That is something that I will come back to in relation to later grounds of appeal. But, having regard to the judge’s overall careful approach to these matters, it seems to me that the challenge in this respect to his decision is unsustainable.

I should make clear that no one could fail to have concerns about the apparently ever-worsening situation in Iraq, but the issue here is whether the judge reached a lawful decision on the material before him and having regard to the appellant’s particular circumstances.

Under ground 5, Mr Symes contends that the judge erred in law in failing to make clear findings of fact as to the account given by the appellant. Reference is made to what the judge said at the beginning of paragraph 81, which I have quoted, namely that he was minded to some extent to accept the credibility of the appellant’s account; and there is similar language in paragraph 86. It is submitted that it is extremely difficult to know which parts of the appellant’s history were accepted and which were rejected. This is a matter of particular importance in circumstances where the judge does not refer in his reasoning to certain other aspects of the appellant’s evidence, such as visits that the appellant said had been made to his home since he had left Iraq.

I would accept the submission that the judge did not express himself on this point as clearly as he should have done. In particular, where he refers to the appellant’s account as vague and speculative, he does not state in terms whether this leads him to disbelieve that appellant’s evidence as to the occurrence of the relevant incidents or not. Looking at the judge’s reasoning as a whole, however, I take the view that he was unable to accept the truthfulness of those parts of the appellant’s account which the judge described as vague and speculative. Whether that is right or wrong does not, however, seem to me to be ultimately the crucial question. What is crucial to my mind is that the judge plainly rejected, on credibility grounds, the appellant’s claim to have a subjective fear of persecution. It is that finding which lies at the heart of the judge’s reasoning and dismissal of the asylum claim.

On any view the matters that were found to be vague and speculative were an input into the adverse finding of credibility as to a fear of persecution. So were the various other matters to which the judge referred. One sees all of this most obviously at paragraph 81, where the judge says that, apart from the difficulties already set out, the credibility of the appellant’s claim to be in fear of his life and in need of international protection is significantly damaged by his failure to claim international protection in Syria and on arrival in the United Kingdom. He is plainly referring there to the credibility of the applicant’s account that he was in fear -- that is to say, his subjective fear -- of persecution on return to Iraq. So that, as it seems to me, is at the heart of the judge’s adverse decision on credibility and indeed of his decision as a whole; and if that adverse finding was properly open to the judge, then plainly it was fatal to the asylum claim. Accordingly, although I accept that there is a lack of clarity in the way in which the judge approaches the issue of credibility, I take the view that the essential finding is clear enough and that the decision is not vitiated by a failure to make sufficient or sufficiently clear findings elsewhere.

I should add that it was not necessary, in my view, for the judge to deal in terms with every point that had been raised by the appellant. In summarising the appellant’s case, he did refer to the reliance placed by the appellant on his having been the subject of enquiries since he had left Iraq. It appears that the relevant evidence was a report from the appellant’s brother that a man had asked for the appellant at his house and had returned ten days later with another man. I agree with the point taken in Miss Chan’s skeleton argument that, even taken at its highest, this was of peripheral importance. The identity of the men and whether they bore any ill-will to the appellant were completely unknown. This was not a principal issue with which it was necessary for the judge to deal and, given the judge’s actual reasoning, it was not a point capable of affecting his decision. The judge rightly observed, at paragraph 87, that it was not possible without producing a document of inordinate length to deal with every piece of evidence in his decision. The decision itself was in any event a lengthy one and I would not criticise the judge for failing to address this additional specific point.

By ground 6 Mr Symes challenges the way in which the judge found the appellant’s credibility to have been damaged by his failure to claim international protection earlier than he did. The first limb concerns the failure to claim protection on the two occasions when he travelled to the British Embassy in Syria. It is said that this should not have been held against the appellant because the Home Office does not accept asylum claims from abroad and there is no provision within the immigration rules for such claims.

In her skeleton argument, Miss Chan suggests that this is a misreading of the judge’s decision and that the point being made was that the appellant had not sought to claim asylum from the Syrian authorities on his visits to Syria. I cannot accept that way of looking at the matter. To my mind it is clear from the wording of paragraph 81 and, in particular, paragraph 85 that the judge’s point was the failure to claim asylum at the British Embassy. Although it may be open in principle to claim asylum at a British Embassy abroad even in the absence of a procedure for the acceptance of such claims by the Home Office, it seems to me that the judge erred in treating the matter in the way he did and failing to take into account the relevant practice and procedural position.

Even if one read the decision as referring to a failure to claim protection from the Syrian authorities, I would be concerned about the brevity of the judge’s treatment of the subject. Syria is not a signatory to the Refugee Convention and is not a safe country within the meaning of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, such that failure to take advantage of a reasonable opportunity to make an asylum claim can itself give rise to an adverse inference under Section 8 of that Act. On the other hand, there is evidence that Syria affords temporary protection to Iraqi asylum seekers and that a large number of Iraqis live in the country. I would not therefore exclude out of hand the possibility of holding against an Iraqi asylum seeker a failure to seek protection from the Syrian authorities. But it would, in my view, require very careful examination of the position before any such adverse inference were drawn; all the more so when, as was the position here, the point had not been taken against the appellant by the Secretary of State. There was no examination of the position in this case.

Accordingly, I have concerns about the judge’s reliance on the appellant’s failure to claim international protection on his visits to the British Embassy in Syria. I have no such concerns about his reliance on the appellant’s failure to claim asylum promptly on his arrival in the United Kingdom. The judge examined this in some detail and was, in my view, entitled to reach the conclusion he did. It is contended that he overlooked the fact that the appellant’s sister had claimed asylum in this country and had her claim refused, but that the Secretary of State had granted her asylum status in the course of the appeal proceedings. The judge referred in his decision to the determination relating to the sister and said he had taken it into consideration. It was, in my judgment, unnecessary for him to deal with it further in this context. In my view, the point was not capable of giving any significant assistance to the appellant. The appellant had not argued that he was influenced by his sister’s case not to claim asylum in the first instance; and if his sister was aware how to make an asylum claim and the appellant was in contact with her, it further undermined the credibility of his evidence that he did not know how to go about making an asylum claim. So the failure to claim asylum promptly in this country was a factor on which the judge was entitled to place real weight.

Taking this into account together with all the other matters relied on by the judge, I do not think that his error in placing weight on the failure to claim international protection at the British Embassy in Syria was material, in the sense that, without that error, he might have reached a different conclusion. This was plainly not a marginal case in the judge’s mind. I am satisfied that he would have reached the same conclusion even if the failure to claim international protection in Syria had not been placed in the balance as a factor weighing against the appellant.

For all those reasons, I would uphold as lawful the primary basis upon which the judge decided against the appellant and dismissed his asylum claim. I think it right, however, to turn briefly to the alternative basis of internal relocation within Iraq, which forms the subject of ground 7 of the grounds of appeal. It is contended in ground 7 that the finding that the appellant could live in Najaf overlooked the evidence that this was not a permanent solution because Najaf is a very religious and conservative city and the appellant could not live there with his relatives as a single man for more than a short time without rumours spreading about the morality of the relatives’ unmarried daughter. It is also said that the judge erred in failing to take into account the country evidence which showed Najaf to be unstable in 2004 and to be a stronghold of the Mahdi army which is engaged in fighting the government and multinational forces from time to time, and hence, as it is put, a location where a stranger might not wish to be forced into the public eye.

For an area to be a reasonable alternative, conditions there must be such that, in the context of the country concerned, it is possible to lead a relatively normal life without facing undue hardship: see the UNHCR guidelines on international protection, as cited with approval by Lord Bingham at paragraph 20 of Januzi v Secretary of State for the Home Department [2006] UKHL 5. It is submitted that the judge could not reasonably have concluded in the present case that such a test was met, or could not have done so without significantly greater reasoning. In my judgment, there was no error by the judge in the test he applied when determining whether internal relocation was available. He did not refer to Januzi, judgment in which was handed down just after the hearing before him though just before his own decision was promulgated; but he did refer to earlier authorities which were to the point and there was no legal misdirection. Nor can it be said that he failed to take relevant evidence into account or that his reasoning was deficient. The judge said in terms that he had considered all the evidence, and I think it clear from the decision as a whole that he had done so with care. It was not incumbent on him to spell out every point that had been put forward on the issue of internal relocation. He identified those to which he evidently attached particular weight, including the fact that the appellant had stayed in Najaf on a number of occasions. The appellant had done so initially on his own account to stay with relatives far from his problems. He had also used Najaf as a stopover on his trips to and from Syria. He had never been at risk there or indeed suffered harm there or anywhere else. Those were all matters to which the judge was fully entitled to attach the weight he did.

Looking at the various points to which our attention has been drawn, I am satisfied that the judge not only applied the correct legal test but reached a conclusion that was reasonably open to him on the evidence. His finding on internal relocation was a lawful one and sufficient in itself to warrant a rejection of the asylum claim, even if he had not reached the adverse conclusion he did with regard to the claim by the appellant to fear persecution if returned to Iraq.

For all those reasons I would dismiss this appeal.

LORD JUSTICE WALL: I agree and cannot usefully add anything.

LORD JUSTICE WARD: I also agree.