MW (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 104

Case No C3/2011/1084[2012] EWCA Civ 104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Senior Immigration Judge Taylor)
[AA/07979/2009]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 25 January 2012
Before
LORD JUSTICE LLOYD
Between
MW (IRAQ)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person, assisted by his McKenzie friend, Mr Bassim Ilbarudi. for in person for The Respondent did not appear and was not represented.
Judgment
[1]This is the oral renewal of an application for permission to appeal on the part of the appellant (to whom I will refer as MW) against the determination of Senior Immigration Judge Taylor on 7 October 2010 by which she dismissed his appeal both on asylum grounds and under Article 15(c) of the Qualification Directive against the refusal by the Home Office of leave to remain in the United Kingdom[2]I do not need to go into the previous history of the case before the hearing before SIJ Taylor, although there was such a history which is recorded in her judgment. She considered evidence from the appellant: a statement, an asylum interview record, a psychotherapeutic report and other material, and he gave oral evidence at the hearing. A matter that was of some significance to the Qualification Directive aspect of the case before Judge Taylor was the guidance given by the Upper Tribunal in the country guidance case called HM & Ors Article 15(c) (Iraq) CG [2010] UKUT 331. That guidance decision may not have answered every question raised in the present case, but it was certainly relevant because it addressed the fact, to quote Judge Taylor, that "on current figures the most dangerous place in Iraq is Mosul”, which is the appellant's home city, and, that being so, there might clearly be a major risk to the appellant if he were returned to Mosul.[3]She considered the suggestion that he could relocate outside his home area and rejected that. She considered the risk in Mosul and, at the end of her judgment, with the benefit of the country guidance case HM, she said that the appellant was not within the various groups who were targeted as regards violence and he was therefore among those people who, as an ordinary member of the public, was less at risk. She said at the end of paragraph 43 of her judgment:
"Although the Appellant is in fact a vulnerable individual that vulnerability is not apparent from his appearance. He clearly has access to support and protection from his family, namely his father and brother and from his friend. His vulnerability does not increase his real risk of being subject to the threat of indiscriminate violence in his home area."
That, in the end, was the basis on which the judge dismissed the claim on asylum grounds and under the Qualification Directive.[4]She referred to the fact that the appellant is a vulnerable individual and there is no doubt as to that. He suffers from a number of debilitating characters, including asthma. In particular, there was evidence before the judge, which has been reinforced by a recently obtained report dated November 2011, which states that the appellant functions at the level of an immature 12 year old.[5]Since the decision of Judge Taylor, the country guidance case HM has been set aside by the Court of Appeal. That is a very recent judgment of the Court of Appeal: HM (Iraq) [2011] EWCA Civ 1536, given on 13 December 2011. The Court of Appeal did not set the judgment aside on the basis that it was necessarily wrong on the facts but because of an unusual procedural problem that had arisen.[6]The cases on which that judgment was given have been referred back to the Upper Tribunal to be decided and the consequence of that is that it is no longer safe to rely on what the Upper Tribunal said in the HM decision itself.[7]That seems to me arguably to undermine the conclusion of Judge Taylor in the present case. That might not necessarily be enough by itself, but I have mentioned the appellant's debilitating characteristics and it is said to be a matter of concern that he is in the position of being exposed to the threat of return. In terms of resisting that now, it can be said he has mounted the appeal; it has been pursued on his behalf, and I should say that right up until the hearing before Senior Immigration Judge Taylor and in the submission of grounds of appeal to the Upper Tribunal and in the preparation of grounds of appeal and a skeleton argument on this appeal last May the appellant has been professionally represented and assisted. That came to an end and at the moment he is acting in person, but he is unable to act unassisted and he has the benign and constructive help of Mr Bassim Ilbarudi who has spoken on his behalf today, as he did two months ago when the matter first came before the court before Hallett LJ on 24 November 2011.[8]I mentioned that there was a recent psychological report. That was prepared by Mr Peter Hodgkinson, a chartered psychologist, and it was produced to the judge and describes his present position. It includes this paragraph: "His present mental state is such that he is quite unable to participate rationally in any proceedings involving his removal from the UK and that such should be suspended until he is mentally stabilised. Indeed, it is difficult to see how he could effectively instruct his solicitor on the basis of his current presentation.”[9]The comment that his removal should be suspended until his mental state is stabilised begs a number of questions. But the statement as to his mental capacity and his ability to instruct a solicitor is of significance, as it seems to me.[10]When the matter came before Hallett LJ, Mr Ilbarudi asked her to adjourn the case in order that lawyers could be found who were willing to act for him; and he said that there were lawyers who said they would be willing to do so. He has been unsuccessful in ensuring that that happens, but it is plainly not just highly desirable but probably essential that MW should have lawyers to act for him if this appeal is to be pursued. My hope is that if permission is granted, as I shall grant it, that will make it possible for him to receive public funding for representation and in that way he will be able to obtain lawyers to act for him, whether or not, because of any doubts as to his mental capacity, it may be necessary for the Official Solicitor or some other litigation friend to be involved.[11]When Judge Taylor refused permission to appeal from the Upper Tribunal to the Court of Appeal she made this comment, having rejected the substantive grounds of appeal:
"This appellant does, however, function as an immature 12 year old. If the Court of Appeal wishes to consider the question of risk on return to Iraq for persons such as him, who whilst not children function as such, then that is a matter for them."
[12]I do not take that as an invitation which the Court of Appeal should necessarily accept, but in the skeleton argument submitted on behalf of MW signed by counsel on 11 May a good deal of play is made, as it seems to me with some force, as to the significance of the observations that I have already mentioned as to the appellant's mental state and capacity.[13]For those reasons, at least as much because it seems to me that the highly unusual and unfortunate circumstances of the appellant give rise to a compelling reason why the appeal should be allowed to proceed as because there are reasonable prospects of success, it seems to me that the appropriate order is that permission to appeal should be granted.[14]As I say, I hope -- and I believe there may be some grounds for that hope -- that the appellant will be able, no doubt with the help of Mr Ilbarudi, to obtain the assistance of solicitors and counsel to represent him, because I hope that having been granted permission to appeal he should find it easier to obtain either public funding for the appeal or at any rate the assistance of lawyers who are willing to act for him pro bono. Any lawyer who does act for him will of course need to consider the question of whether he has the mental capacity to give proper instructions. But whether or not that is the case, if there are lawyers willing to act for him the necessary steps can no doubt be taken more readily than they can otherwise to ensure that the proceedings are properly brought and continued.[15]So I will grant permission to appeal. In terms of the practicalities, I will say at this stage I think the time estimate should be half a day. The court will consist of three judges and can include a High Court judge. I will direct that a transcript of this judgment be made available at public expense and sent to the appellant as well as to the Home Office.

Order

Application granted