Kurdu, R (on the application of) v Immigration Appeal Tribunal

The Claimant applies for judicial review of a decision of the Immigration Appeal Tribunal (IAT), dated 18 September 2001, refusing him leave to appeal from a decision of an Adjudicator, dated 20 August 2001. The Adjudicator, Miss A L Sawetz, had dismissed his appeal from a decision, made on 21 March 2001, by the Secretary of State under s.69 (5) of the Immigration and Asylum Act 1999, giving directions for his removal from the United Kingdom and refusing his application for asylum.

The Claimant was born in Halabja, Kurdistan, Iraq on 1 July 1974. He is an ethnic Kurd. He went to school in Halabja but left in 1988 when Kurdistan was attacked with chemical weapons. He and his family then fled to Iran, where they stayed in a camp for one year before returning to Kurdistan. In 1991, after a public uprising against the Iraqi regime, he and his family were able to return to their home. In the same year he became a member of the Patriotic Union of Kurdistan (PUK).

In 1995 armed war broke out between the PUK and the Islamic Movement of Kurdistan (IMIK). The Claimant supported the PUK.

In September 1999 the Claimant was arrested, detained and tortured by the IMIK. He was released as the result of a payment of a bribe to prison guards by his father. He fled from the region and eventually arrived in the United Kingdom on 29 February 2000. He claimed asylum on 2 March 2000. The Secretary of State rejected his claim.

The Adjudicator accepted that the Claimant was a truthful witness. She was satisfied that on the basis of his ethnicity and his political beliefs he had a well-founded fear of persecution for a Convention reason if returned to Iraq.

The Adjudicator considered next whether there was an area within Iraq where it would be safe for the Claimant to return. In paragraph 6.4 of her reasons she approached the issue as follows:

“The Refugee Convention imposes upon each country a duty to provide surrogate protection but not in all circumstances. He may well have a well-founded fear of persecution in Iraq generally. If there is a part of the country to which he could relocate and it would not be unduly harsh for him to do so then the Appellant’s asylum appeal must fail.”

The central issue in this case is whether the Adjudicator was correct in directing herself in that way. Mr Seddon submitted on behalf of the Claimant that her approach was over simplified and erroneous, for reasons to which I will come. But first I should summarise her findings.

She found that in the Halabja region, from where the Claimant comes, the IMIK had influence but not control. The area was controlled by the democratic party of Kurdistan (KDP) and the PUK. There were other Kurdish regions under the authority of the KDP and PUK where the IMIK had no influence. The Kurdish regions under the authority of the KDP and the PUK had a system of justice based on Iraqi legislation with police to enforce public order. There were also hospitals, schools and universities.

The Adjudicator concluded that if the Claimant were to return to Halabja, the IMIK’s influence was such that it was reasonably likely that he would face persecution by that organisation on the basis of his political beliefs. However, from the Country Assessment she concluded that there were many areas within the Kurdish Autonomous Region (KAR) where the IMIK had no influence whatsoever, and she did not consider that it would be unduly harsh to expect the Claimant to relocate within such an area.

In asking herself the question “whether it would be unduly harsh to expect him to relocate to an area where the IMIK have no influence whatsoever” the Adjudicator referred to the test in R v Home Secretary ex parte Robinson [1998] QB 929. In that case Lord Woolf MR said at page 943:

“Where it appears that persecution is confined to a specific part of a country’s territory the decision maker should ask: can the claimant find effective protection in another part of his own territory to which he or she may reasonably be expected to move? We have set out, ante pp 939-940 appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden JA in the Thirunavukkarasu Case 109 DLR (4^th) 682, 687 “Would it be unduly harsh to expect this person… to move to another less hostile part of the country?” to be a particularly helpful one. The use of the words “unduly harsh” fairly reflects that what is in issue is whether the person is claiming asylum can reasonably be expected to move to a particular part of the country.”

The Adjudicator accepted an undertaking on behalf of the Secretary of State that those of Kurdish ethnicity who were to be returned to northern Iraq would only be returned if it were considered safe and that they would not be returned via Baghdad.

Accordingly she dismissed the Claimant’s asylum appeal on the ground that he had failed to discharge the burden of proof upon him to show that was reasonably likely that if returned to northern Iraq, and to an area where the IMIK had no influence whatsoever, he would be persecuted for any of the Convention reasons put forward, namely his ethnicity or his political opinion.

In reaching her decision the Adjudicator said that she had taken into account all of the objective information supplied and had paid particular attention to the pages of the documents referred to by the Claimant’s representative in his submissions.

The Claimant’s application for leave to appeal to the IAT was unspecific as to the grounds. It merely stated as follows:

“The Adjudicator misdirected herself as to the law and the facts. Having found the appellant credible, the Adjudicator should have allowed the appeal on asylum and human rights grounds in view of the objective evidence which was accepted. Further grounds are to follow”.

In dismissing the application for leave to appeal the Vice President of the IAT, Mr J Barnes, noted that no further grounds of appeal had been received. He observed that he could see no misdirection in the Adjudicator’s determination and that she was entitled to reach the decision expressed on the basis of the evidence before her. He concluded that the grounds of appeal raised no arguable issues having a real prospect of success.

Mr Seddon on behalf of the Claimant attacked the Adjudicator’s decision in three ways. First, he attacked her approach to the Convention in the passage to which I have referred in paragraph 6. Second, he submitted that she was wrong in the way that she approached the subject of access to northern Iraq, about which the Secretary of State gave the undertaking to which I have referred in paragraph 11. Third, he submitted that she failed to take into account certain pieces of evidence.

Mr Seddon acknowledged that these matters were not particularised in the Claimant’s grounds of appeal to the IAT. He accepted that in order to show that the IAT should nevertheless have granted leave in relation to any of them he would have to show that, on the material before the IAT, it was an obvious point, meaning a point which had a strong prospect of success if argued (applying the test in R v Home Secretary ex parte Robinson at page 946). Mr Patel submitted on behalf of the Secretary of State that this was to put the matter too favourably from the Claimant’s viewpoint and that the appropriate test is to be found in the judgment of Ouseley J in Nuredini v Immigration Appeal Tribunal [2000] Imm A R 577. I will leave this question aside for the moment.

Under Article 1A of the Convention, the term “refugee” applies to any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”

In recent years much attention has been given to the subject of asylum seekers who may not need international protection because they have what is sometimes referred to as an ‘internal protection alternative’. The Michigan Guidelines on the Internal Protection Alternative (resulting from a colloquium convened by the University of Michigan Law School in April 1999) proposed the following approach in paragraph 5:

“ A lawful inquiry into the existence of an ‘internal protection alternative’ is not … simply an examination of whether an asylum seeker might have avoided departure from his or her country of origin (‘internal flight’) nor is it only an assessment of whether the risk of persecution can presently be avoided somewhere inside the asylum seeker’s country of origin ‘internal relocation’). Instead, ‘internal protection alternative’ analysis should be directed to the identification of asylum seekers who do not require international protection against the risk of persecution in their own country because they can presently access meaningful protection in a part of their own country. So conceived, internal protection analysis can be carried out in full conformity with the requirements of the Refugee Convention.”

I leave aside for the moment the point on access which is the focus of the Claimant’s second ground for challenging the Adjudicator’s decision. As a matter of first principle, it is hard to see why a person should be regarded as requiring international protection against persecution if there is a place in their own country where they would be free from such risk and where it would not be unreasonable for them to live. This was the approach adopted by the Adjudicator. If I am free to do so, I would uphold it.

In submitting that the Adjudicator’s approach was wrong as a matter of law, Mr Seddon advanced the following propositions:

On this analysis the Claimant was entitled to succeed because he had a well-founded fear of persecution in his home area (so he passed the fear test) and the KAR is not under the control of a body analogous to a state (so he passed the protection test).

For these propositions Mr Seddon began with the decision of the House of Lords in Adan v Home Secretary [1999] 1 AC 293, which recognised the distinction between the fear test and the protection test.

In the more recent case of Horvath v Home Secretary [2000] 3 WLR 379, the House of Lords took the analysis somewhat further by recognising that while a person may fail the fear test or the protection test, the two tests are linked to each other by concepts which are to be found by looking to the purposes of the Convention. (See the approach of Lord Hope at page 385 and of Lord Clyde at pages 399-402.)

While there are separate tests, it is an error to attempt to pigeon hole them in such a way as to say that something which is relevant to one cannot be relevant to the other. This would be contrary to the “holistic approach” to the definition of “refugee” which the House of Lords recognised to be appropriate in Horvath v Home Secretary.

In support of the proposition that internal relocation could not be relevant to the fear test when the Claimant had a well-founded fear of persecution in his own home area Mr Seddon relied also on Gardi v Home Secretary [2002] 1 WLR 2755 and Karanakaran v Home Secretary [2000] 3 AER 449.

The order pronounced by the Court of Appeal in Gardi v Home Secretary was later declared by the court to have been a nullity, because it transpired that the court did not have jurisdiction in the matter, but that does not impair (other than technically) the authority of the reasoning. The Court of Appeal in that case accepted that the question of internal flight could only arise where a Claimant has a well-founded fear of persecution in his own home area; but it does not follow logically, or in order to fulfil the underlying objective of the Convention, that a person who has a well-founded fear of persecution in his own home area must be treated as a refugee even though there is a safe part of his country to which he could reasonably be expected to relocate, unless that part was under the authority of a body equivalent to a state. That would be a remarkable conclusion and not, as I read it, in accordance with the tenor of the court’s reasoning. At paragraph 31 Keene LJ said:

“If a person is not a refugee because there is a safe part of his country to which he could reasonably be expected to relocate, it would be very remarkable if a person were to acquire the status of a refugee when the safe area is one where he originally lived.”

The implication of the first half of that sentence is contrary to the argument advanced by the Claimant.

In Karanakaran v Home Secretary the court was not directly concerned with the issue which arises in the present case. Care therefore has to be exercised in seeking to apply the dicta in that case to the present situation. Mr Seddon relies on certain dicta in support of his case, but there are other passages which do not support him. (At page 473 Sedley LJ recognised that there may be countries where a fear of persecution, albeit genuine, can be so readily allayed by moving to another part of the country that it can be said that the fear is either non-existent or non well-founded, or that it is not ‘owing to’ the fear that the applicant is here. Anticipating the holistic approach supported by the House of Lords in Horvath v Home Secretary, Sedley LJ also observed towards the end of his judgment that the Convention question should not be regarded as an assault course on which hurdles of various heights are encountered by the asylum seeker, but as a unitary process of evaluation of evidential material of many kinds of qualities against the Convention’s criteria of eligibility for asylum.)

The approach adopted by the Adjudicator followed the guidance of the Court of Appeal in R v Home Secretary ex parte Robinson. Lord Woolf MR said in that case at pages 939 –940 that in determining whether it would be reasonable to expect the Claimant to relocate internally, a decision maker would have to consider all the circumstances of the case against the back cloth that the issue is whether the Claimant is entitled to the status of refugee. Among the factors to be considered was the question whether the quality of the internal protection met the basic norms of civil, political and socio-economic human rights. In this case the Adjudicator considered the degree of internal protection which would be available to the Claimant in the KAA.

I conclude that the Adjudicator’s approach to the Convention in the passage which I have set out in paragraph 6 was not a misdirection, but an admirably succinct encapsulation of the question which she had to consider, adopting a holistic approach to the object of the Convention.

Mr Seddon submitted that because presently there is no practical way of returning the Claimant safely to northern Iraq, he is entitled to refugee status and that the Adjudicator was wrong to deny him that status by accepting instead the Secretary of State’s undertaking referred to in paragraph 11.

In Gardi v Home Secretary the asylum seeker was a person who had a safe home territory in northern Iraq, but to which he could not currently obtain access, for the same reasons as in the present case, and the Secretary of State had given a similar undertaking. The same argument was advanced on his behalf but it was rejected by the Court of Appeal. Keene LJ said that although he could not currently be returned, he was not a refugee, anymore than would be someone who came from a “safe” land locked state to which he currently could not obtain access because of hostile neighbours who would persecute him.

Mr Seddon sought to distinguish the present case on the ground that the Claimant does not have a safe home area, although there are safe parts of his home state to which he could without undue harshness go, (provided that a safe access route can be established.) I do not think that this factual distinction affects the principle, and it would produce anomalous results if it did. I do not see why an ethnic Kurd from northern Iraq who would be safe in his own home area, if safe means of transport could be found, should be treated differently in this respect from an ethnic Kurd from northern Iraq who would be safe, and could without undue harshness be expected to live in a neighbouring part of his country, if safe means of transport could be found. In either case the problem is the same and the Secretary of State’s undertaking provides the same measure of protection.

Mr Seddon identified a number of extracts from the documents before the Adjudicator to which he said that she had failed to pay proper attention. This is in my view a forlorn argument. The Adjudicator’s decision was well reasoned and clearly expressed. She addressed the essential issues and explained why she came to the conclusions that she did. It was not incumbent on her to refer to every piece of evidence. As stated in paragraph 13, she said that she had taken into account all of the objective information supplied and had paid particular attention to the pages refereed to by the Claimant’s representative in his submissions, and I can see no proper basis to question that statement.

It follows that in my opinion the documents before the IAT disclosed no obvious ground of appeal, applying the test in R v Home Secretary ex parte Robinson, and the application for judicial review accordingly fails. In the circumstances, it is unnecessary for me to consider the point raised regarding Nuredini v Immigration Appeal Tribunal, on which I did not hear detailed argument.