MO (Iraq) v Secretary of State for the Home Departments

This is a renewed application for permission to appeal. It is renewed only insofar as the application was refused on paper. Considering the application on paper on 6 February 2008, Dyson LJ granted permission on certain grounds, that is grounds 2 to 9. Dyson LJ refused permission on ground 1.

The appellant, as he now is, MO, entered the United Kingdom illegally on 6 January 2002. He claimed asylum on the same day. He claimed that his removal would be contrary to the Refugee Convention and would violate Article 3 of the European Convention. His application was refused by the respondent, the Secretary of State, on 20 June 2005 and directions for removal were given.

The appellant appealed against that decision and by a determination of the 15 August 2005 the first tribunal allowed the appeal. They found that the appellant’s evidence was credible. The appeal was allowed under Article 3, though dismissed on asylum grounds.

The Secretary of State appealed against the finding. There was a first stage reconsideration at which the tribunal held that the first tribunal had erred in law, both in relation to the finding on credibility and in relation to the risk on return and other matters. The tribunal proceeded to a second stage reconsideration and, by a decision of 28 August 2007, dismissed the appellant’s appeal against the Secretary of State’s decision. The tribunal did so on the ground that the appellant was not credible and, further, that there was no risk on return. The tribunal conducting the first stage reconsideration had found that the first tribunal had erred in law in both respects.

Dyson LJ granted permission to appeal on the basis of the second tribunal’s adverse finding on credibility. Dyson LJ sets out in some detail the arguable error of law in that respect. Mr Hodgetts, on behalf of the appellant, seeks to argue that the first tribunal did not err in law. It did not err in law in its finding on credibility and, having accepted credibility, it did not err in law in its assessment of the risk which the appellant would face if he were returned to Iraq.

I have a good deal more information before me than was before Dyson LJ, in particular a detailed advocate’s statement submitted by Mr Hodgetts in relation to the points at issue. In my judgment the appellant should have an opportunity to argue the point that the first tribunal did not err in law in its credibility finding. It is not necessary to spell out in more detail the reasons raised by Mr Hodgetts in his statement.

I have had more difficulty with the second point. The burden of establishing that a return would involve a breach of Article 3 of the European Convention is a high one. The appellant claimed to have been convicted of rape under the previous regime, and would thus be returning to Iraq as a convicted prisoner facing a 15-year sentence, if, that is, his credibility is accepted. Much of the debate before the tribunals, although the appellant was not represented before the first tribunal, was as to court processes in Iraq, the current state of the legal system and the appellant’s lack of opportunity to establish that a conviction, which he says was obtained falsely and corruptly, should not now be enforced.

I am not aware of any general amnesty having been given such that returning convicted defendants have nothing to fear from further custody. Mr Hodgetts tells me that there is no such general amnesty and that the question should be approached on the basis that, on return, the appellant, notwithstanding the change of regime, is likely to face his sentence as well as having the difficulties, which may be substantial, of appealing against his conviction under the earlier regime.

The first tribunal dealt with this issue at paragraphs 18 and following. It does so by reference to the CIPU report of April 2005, a copy of which has, though only this morning, been placed before the court. The tribunal had in mind not merely the state of legal process and training in Iraq but also the conditions in Iraqi prisons. The first tribunal referred to paragraphs 5.68 to 5.88 of the report and stated that it painted:

“a dismal picture of the frustration of the Transitional Administration Law’s insistence on the respect for human rights in the case of security suspects, but also those facing criminal charges: incommunicado detentions as referred to above; denial of defence counsel and family access; summary criminal trials; confession through torture; poor detention conditions; the failure to bring perpetrators of human rights abuses to book.”

It was on that basis, as well was on the basis of the state of the legal system in Iraq, that the first tribunal concluded that a return would involve a breach of Article 3. The subsequent tribunals did not in terms deal with the custody question on which I have only limited information.

What Mr Hodgetts has needed to do this morning is to show that permission should be granted. The later tribunals did not deal with the position in custody of someone serving a 15-year sentence for rape. The emphasis is on the judicial process, and the tribunals found at their respective paragraphs 22 that there was no risk of a breach of Article 3 even if the appellant’s evidence were to be accepted.

Not without hesitation, I grant permission on this ground too. It is in my judgment arguable, on the fuller information I now have, that the first tribunal did not err in law on the issue of credibility. It is also in my view arguable that, having found the appellant to be credible, there is a risk of a breach of Article 3 on his return, by reason of the contents of the April 2005 report, and in particular the contents of paragraphs 5.68 to 5.88, to which the first tribunal referred, which included references to conditions in custody.

For those reason I grant the renewed application.