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

This is an application by HK, who is an Iraqi national of Arab descent who seeks permission to appeal against the decision of Upper Tribunal Judge Hanson dated 27 March 2014 dismissing the appellant’s asylum and human rights appeal. Neither Elias LJ in refusing permission to appeal on the papers nor I consider that this is a case where the second appeals test applies. That is because the First-tier Tribunal rejected the claim on a totally different basis from that on which the Upper Tribunal approached the matter. Even if I and Elias LJ were wrong on that approach – and one should characterise this as a second appeal – given the potential alleged danger facing the applicant on his return it seems to me that there are compelling reasons why this appeal should be heard in any event, even if I am wrong in my characterisation of this case as being effectively a first appeal.

The applicant was born and raised in Kirkuk. The appellant drove one of the family vehicles delivering concrete barrier blocks used to protect government buildings against terrorist attacks. In May 2007 the appellant was shot and then abducted by members of an armed group. They demanded that he cease working in collaboration with the coalition forces and demanded also a ransom for his release, payment of which ultimately secured his freedom. Although the appellant ceased working as a driver thereafter, threats continued and, on one occasion, he was pursued in his vehicle by other armed men whom he eventually evaded. The appellant took flight from Iraq in September 2007, travelling first to Turkey and arriving in the UK on 13 April 2008 where he claimed asylum. He has been engaged in the pursuit of his asylum claim since that date. The majority of the appellant’s family have now fled Iraq also. Further, there have allegedly been further instances of violence directed at his family members.

There was, some time ago, a previous appeal to this court on the basis of permission granted by Moore-Bick LJ on 15 April 2011. It is not necessary for me to rehearse the procedural history thereafter but that appeal effectively was consented to by the respondent. In April 2012 the appellant and the respondent agreed the terms of a consent order remitting the appellant’s appeal against the respondent’s refusal to grant asylum to the tribunal.

I am satisfied, having read the very full skeleton arguments and advocate’s statement from Mr David Jones of counsel, who appears on behalf of the applicant, that permission should be granted in this case. The submission is that, given the findings of fact made by the Upper Tribunal judge that the applicant was the victim of very serious past persecution, the judge should have approached the assessment of future risk differently. It is said that the manner in which he approached it was flawed as a matter of law. Mr Jones submits that the judge was obliged to perform the assessment of future risk by reference to the factors set out in paragraph 339K of the Immigration Rules, which require the tribunal to answer the question whether there is a serious indication of future risk and to conclude that there had to be reasons for concluding that there was no prospect of future risk.

The applicant contends that the judge did not approach the test correctly, and that that was a matter of law. In particular, the appellant submits that the judge adopted a totally flawed approach to risk assessment. In particular, a critical flaw in the judge’s approach, submits Mr Jones, is that he did not properly assess country conditions in Iraq at the date of the de-termination, namely March 2014. Mr Jones submits that although the judge purported to do so, in fact he failed to consider the evidence before the tribunal, even though he purported to do so, and erroneously relied on country material evidence put forward by the respondent that went back to a considerably earlier period and completely disregarded the other evidence before the tribunal which the applicant had produced. According to the applicant, this showed that there was a very real risk of persecution as at that date.

It is also submitted that the analysis of the country material was flawed because only selective reference was made to other evidential sources provided by the parties and that the judge conducted only a very limited analysis of other materials provided both by the respondent and the applicant. It is also submitted that the judge failed properly to assess the risk in the context of an acceptance that the appellant was a victim of past persecution; it is also said that the errors in the Upper Tribunal judge’s approach to the assessment of risk additionally flawed his evaluation of the appellant’s capacity to support a protection claim under article 15(c) of the qualification directive.

I am satisfied that the arguments put forward both in the advocate’s statement and in the skeleton argument do raise issues of law and have a real prospect of success. Arguably they are not limited to an attack simply on the evidential findings of the Upper Tribunal judge. It may be that on the hearing of the full appeal the court will take a different view, but it seems to me that for the purposes of this application they are at least reasonably arguable.

Four hours, three judges, one of whom can be a High Court judge, but two with relevant experience in Immigration and Asylum experience.