SH (Iraq) v Secretary of State for the Home Department [2008] EWCA Civ 1581

Case No C5/2008/1722[2008] EWCA Civ 1581
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/14270/2006]]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Monday, 24 th November 2008
Before
LORD JUSTICE JACKSON
Between
SH (Iraq)AppellantSECRETARY OF STATE FOR THE HOMERespondentDEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms S Knights (instructed by Messrs Bhatt Murphy) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is an application for permission to appeal. I will deal with the matter quite shortly, because I propose to grant permission to appeal on certain grounds, and in those circumstances the less said at this stage the better. The appellant is an Iraqi national, now aged 24. The appellant arrived in the United Kingdom in August 2006 and claimed asylum. The Secretary of State refused that application. The appellant appealed to the Asylum and Immigration Tribunal. Immigration Judge Lewis dismissed the appellant’s appeal but made a number of findings of fact which are important. In particular, whilst in Iraq the appellant and his brother had burnt a shrine containing copies of the Koran; thus, the appellant was at risk of persecution in his home area. Nevertheless, the appellant was not entitled to refugee protection because he could relocate within Iraq. There was an order for reconsideration. Immigration Judge Davidge at the reconsideration hearing came to the same conclusion.[2]The appellant now seeks to appeal on five separate grounds, as set out in the grounds of appeal to the Court of Appeal. The first ground of appeal is that when you look at the reasoning of Immigration Judge Davidge, it can be seen that the immigration judge applied the wrong test in relation to internal relocation.[3]The second ground of appeal is that the immigration judge erred in rejecting the submission that the country guidance decision in SM (Kurds Protection-Relocation) Iraq CG [2005] UKAIT 00111 was out of date and should not be followed.[4]The third ground of appeal is that the immigration judge erred in relation to his assessment of UNHCR material relating to Iraq.[5]The fourth ground of appeal is that the immigration judge erred in rejecting part of the expert evidence adduced on behalf of the appellant.[6]And the fifth ground is that the immigration judge erred in failing to consider the practical logistics of a return to Baghdad, having regard to the circumstances now prevailing in Iraq.[7]I have had the opportunity to read the papers in this case, and the skeleton argument of Ms Knights, counsel for the appellant, and it seemed to me upon reading the documents that this was a proper case in which to grant permission on grounds 1, 2, 3 and 5 but I was not persuaded on reading the material that the fourth ground of appeal should be permitted to proceed. It seemed to me that it was a matter for the immigration judge to assess the expert evidence, and it seemed to me that the immigration judge was entitled to reject part of the report of Ms Pargetter as he did in paragraph 55 of his decision.[8]The argument today has centred on the fourth ground of appeal, in respect of which I indicated my concerns to counsel at the outset. Ms Knights, counsel for the appellant, draws attention to the reasoning of the immigration judge in paragraph 55. That paragraph relates to paragraph 3.iii of the report of Ms Pargetter. That report contains the following passage:
“Indeed the Kurds who are living in Baghdad are divided as between Sunni and Shi’ite areas according to their own sect. However, these Kurds have generally been living in the city for many years and are considered to come from Baghdad. Any newcomer on the other hand would be regarded with deep suspicion, not least because of the general climate of fear and mistrust that still pervades the city. Moreover given that Baghdad is controlled by militias, any Kurd wishing to settle anywhere in the city would need permission from the relevant militia. These militias are generally only willing to allow someone into an area if they have come with a recommendation from someone already living there.”
[9]The immigration judge said in paragraph 55 that he accepted that Ms Pargetter was accurately recording what she had been told; however, he did not think that this record of what Ms Pargetter had been told was correct. He said that if such a system operated it would not be secret or contentious, and he would expect details to be in the public domain. He regarded the paucity of detail in Ms Pargetter’s report as a reflection of the lack of available evidence; therefore he did not accept this part of Ms Pargetter’s report.[10]Counsel today submits that mere lack of supporting evidence should not have caused that rejection; and furthermore, Ms Knight submitted that the UNHCR reports contained a few paragraphs, namely paragraph 30.08 and 30.17, which do indeed support the views expressed by Ms Pargetter.[11]This is not an easy point. Immigration judges are an expert tribunal, and by and large their assessment of expert evidence concerning conditions in individual receiving states should be respected. I have come to the conclusion, however, that since I am giving permission to appeal to the appellant on the other grounds, and since I can see a little bit of force in Ms Knights’ submissions, it would not be right to shut out the appeal on that ground, although I must confess that I do not regard it as the most promising one.[12]In the circumstances, I shall simply make an order granting permission to appeal. Unless the court directs otherwise the hearing shall be before a court of three, one of whom may be a High Court judge.

Order

Application granted.