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

MR JUSTICE NEWMAN: This application for judicial review was before the court pursuant to permission granted by Forbes J. The claimant is a Kurdish citizen of Iraq who resided in the Kurdish autonomous area. On 13 December 2000 he claimed asylum in the United Kingdom. In March 2001 he appealed against the refusal of the Secretary of State to accord him refugee status and his asylum claim was heard by an Adjudicator on 18 February 2002. There was then a long delay to 31 May 2002 before the determination and reasons were promulgated.

His claim on appeal to the Adjudicator also included a claim that his return to Iraq would be an infringement of his rights under Article 3 of the European Convention of Human Rights. The case is before the court pursuant to permission, in my judgment, because of a misunderstanding as to what the claimant was asserting for the purposes of judicial review. I have little doubt that Forbes J granted permission because he understood the case concerned a claimant who had established a fear of persecution under the Asylum Convention in Iraq; namely, that part of Iraq controlled by Saddam Hussein, but whose claim for asylum had been rejected because the Special Adjudicator was satisfied that he could be relocated or in any event sent back to the Kurdish Autonomous Area in the north of Iraq where he would receive adequate protection. Had that been a true interpretation of the Adjudicator's decision it would have given rise to an argument as to whether the Kurdish Autonomous Area was by its constitution and make-up capable of providing state protection; a question which is to be considered by the Court of Appeal in the case of Maghdeed. Had that been the position before this court, plainly the right course would have been to have awaited the Court of Appeal's decision in Maghdeed. But Mr Vokes, who has appeared for the claimant today, in my judgment has rightly conceded that he cannot challenge what is, in effect, the true basis of the Adjudicator's decision so far as the claim for asylum is concerned. The difficulty which that reasonable and proper concession gives rise to is to highlight that the way in which the matter was dealt with before the Special Adjudicator was to run the asylum claim essentially as the principal claim, and to run the Article 3 of the European Convention of Human Rights (ECHR) claim not just as a parallel, but an exactly parallel argument. Thus it was that the Adjudicator concluded when dealing with the human rights claim under a separate paragraph at the end:

In a sense, therefore, there being no asylum claim, Mr Vokes endeavoured quite properly to discharge his duty to the claimant by submitting that nevertheless the conclusion on the ECHR claim could be challenged. But short perusal of the Determination and Reasons demonstrates the difficulty which that throws up for him in at least two respects. Firstly, there was a general conclusion which was to the effect that notwithstanding that the Adjudicator accepted certain facts in connection with what could be described as a feud with another family to have taken place, the Adjudicator concluded that the claimant did not have a genuine fear for his life. But more than that, the facts as they were found in his favour as to certain events forming part of the feud, were of the barest and thinnest nature which, in the absence of a genuine fear being made out in support of an asylum claim, were in their character well short of being capable of bearing a case that a risk arose that if he was returned he would be subjected to torture or inhuman and degrading treatment or punishment.

Putting a little bit of flesh upon that introduction, the Adjudicator rejected the claim based on persecution by membership of a particular social group. No evidence was offered that the claimant had any group status other than being an Iraqi Kurd. As a Kurd being returned to the Kurdish Autonomous Area, not to Iraq controlled by Saddam Hussein, the claimant would not be prosecuted by the Iraqi State. The Adjudicator rejected the second way in which the claim was put; namely, persecution on the grounds of political opinion. There was simply no evidence offered in support of any imputation of political opinion. So far as the facts of the feud were concerned, that had to fail because the family were not agents of persecution by the Iraqi State within the Convention, and as the Adjudicator also found, the claimant had, in any event, stayed in Iraq for 4 months after his brother's death, which was one of the events that had been accepted, and he gave no evidence of any other incidents.

As to his genuine fear of any persecution, the Adjudicator was of the view that had he really had a genuine fear he would have claimed asylum in the other countries through which he passed, rather than waiting until he came to the United Kingdom. All that being the position, in my judgment, Mr Vokes was really left without any material at all to persuade this court that there was an arguable basis of challenge to the Adjudicator's decision, particularly in the light of the fact that the argument that he now wished to raise discretely and apart from the asylum claim, had never been presented to the Adjudicator. The other point which I should mention out of deference to Mr Vokes' efforts to pursue the interests of the claimant, relates to the delay between the hearing and promulgation of the Special Adjudicator's decision. The substance of that submission, as I understood it, was that the Vice-President of the Immigration Appeal Tribunal had, in the course of considering a complaint about the long delay between the hearing and the promulgation, observed in the light of established principle, that where credibility issues have been decided against a claimant, promulgation should not be delayed, but that this being a case in which there had been positive findings in favour of the claimant meant that such a principle had no real application. I do not read the Vice-President to have gone that far. The Vice-President was having to deal with a specific ground of appeal in respect of which permission was being sought, which went to the long delay between hearing and promulgation. The observation was, so far as it went, in my judgment, correct. There were findings which had been made by the Adjudicator; namely, basic findings of fact in relation to the family feud which had been accepted. But that said, in my judgment, nothing turns on any suggested inconsistency between that and the position adopted today. Nor is there anything which by way of residual unfairness can be said to arise out of it. Thus, for all those reasons, this application for judicial review is dismissed.

MR VOKES: My Lord, I am legally aided, may I have an assessment?

MR JUSTICE NEWMAN: You may indeed. Thank you very much, Mr Vokes, for your efforts.