M A-H ( Iraq) v Secretary of state For the home department [2013] EWCA Civ 445

Case No C5/2011/3063[2013] EWCA Civ 445
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: AA/16247/2010]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday 30 th January 2013
Before
LORD JUSTICE PILLLORD JUSTICE TOULSONLORD JUSTICE TOMLINSON
Between
M A-H ( Iraq )AppellantSecretary of StateRespondentfor 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 )
Mr Rory O'Ryan (instructed by Thakrar & Co) appeared for Appellant.Mr Robert Kellar (instructed by the Treasury Solicitor) appeared for Respondent.
Judgment
[1]The appellant is a citizen of Iraq. He appeals against a decision of Immigration Judge Alis in the Upper Tribunal, reversing a decision of Immigration Judge Crawford, who had allowed an appeal by the appellant against a decision of the Home Secretary rejecting his claim to asylum under paragraph 334 of the Immigration Rules and to protection under Articles 2 and 3 of the European Convention.[2]The central question is whether Immigration Judge Crawford was wrong in law in concluding that he was not satisfied that the appellant would have sufficient protection by relocation within the area of the Kurdistan Regional Government ("KRG").[3]The appellant was born on 10 January 1976. He flew from Iraq to the UK on 4 August 2010 using his own Iraqi passport and claimed asylum on his arrival at Manchester airport. The Home Secretary disbelieved his story about the matters which caused him to leave Iraq, but Immigration Judge Crawford found him to be a consistent and persuasive witness, who had given a plausible account of what had happened to him and his family in Iraq, and he accepted the account as truthful. Immigration Judge Crawford's determination is clear, thorough and well-reasoned. His primary findings about what the appellant experienced are not in dispute and therefore his account, which was fairly complex, can be abbreviated.[4]The appellant is a qualified dentist, who used to practise privately and for the state and the army in Iraq. He had no political involvement, but his father was a member of the Ba’ath party and held a relatively senior position in Saddam Hussein’s regime. His father's position involved him travelling widely around Iraq, attending and speaking at meetings, and therefore he would have been quite widely known.[5]The appellant had a brother, Firas, who was a pilot in the Iraqi air force under Saddam Hussein. After the collapse of Saddam Hussein's regime in 2003 the appellant and his family went into hiding. Sometime later the family returned to Baghdad. His father died of natural causes. The appellant lived and worked in fear and so in August 2007 he left to work in Dubai. In March 2008 he received a telephone call from Dubai, telling him that Firas had been killed by members of a militia who had been firing missiles in the Green Zone. Firas had chased the militia and had been shot. The appellant came back to Baghdad for a short time to organise his funeral.[6]In February 2009 Arabic television channels broadcast confessions by associates of an Iraqi MP named Mohammed Al-Daini confessing to responsibility for the incident in which Firas had been killed. Not long afterwards the appellant spoke to the leader of his tribe, who wanted to discuss with him what should be done, and he returned to Baghdad. There he discovered that Al-Daini was a very powerful figure.[7]Meanwhile he was approached by local Iraqi officers, who wanted him to make a formal complaint in connection with his brother's death. The appellant did so, but he was then approached by associates of Al-Daini who threatened that he and his family would be killed unless he withdrew his complaint. At that stage the appellant decided to withdraw the complaint, but that led him into trouble with the army. The appellant then returned to Dubai, but in June 2010 his employment came to an end and he returned to Baghdad.[8]Shortly after his return another brother, Ahmed, was killed by militia men, who had demanded to know from him where the appellant was. They were looking for him because of the problems which he had caused for Al-Daini and his men, some of whom had been arrested. The appellant was given this information by members of his family.[9]Two of his brothers having been killed by Al-Daini's men, he flew to England and claimed asylum. He produced documentary evidence to support parts of his account.[10]IJ Crawford accepted among other things the following matters:(1) The appellant returned to Iraq in July 2010 on the expiry of his work contract in Dubai. Shortly after his return, five militia men supporters of Al-Daini broke into the appellant's home looking for the appellant. When his brother, Ahmed, refused to reveal the appellant's whereabouts he was killed by the intruders.(2) Two of the appellant's brothers had been killed by militia assisting Al-Daini.(3) The evidence made it clear that Al-Daini would wish him to be killed, as his two brothers were killed. Al-Daini had assisted in organising the murder of eight people in 2007 and two of his close associates had confessed to organising the atrocity and to killing the appellant's brother, Firas.(4) As the oldest surviving member of the family, it fell to the appellant to make the formal complaint against Al-Daini.(5) Between making that complaint and his return to Iraq on 9 July 2010, the appellant had been out of harm's way in Dubai.(6) It was a significant matter that the appellant's younger brother was killed within a matter of days of the appellant's return to Iraq. He had returned to Iraq because he no longer had the right to reside in Dubai.(7) The appellant did not fear the general lawlessness in Iraq but he did fear militia allied to Al-Daini, who had already killed his two brothers.(8) Al-Daini supporters had targeted him and would continue to target him.[11]Having made those findings Immigration Judge Crawford considered the possibility of relocation within the KRG. He stated his conclusions on this question in paragraphs 44 and 45. Because they have been the subject of close scrutiny I will set them out in full :
“44 It is suggested by the Respondent that the Appellant can relocate within Iraq. If his only fear was that he was the son of a Baa’th party member, this argument might hold water. However, I do not accept that the Appellant can, or will be protected by the army or the police in Baghdad. The question arises as to where he could relocate. Dr Fatah has analysed the Appellant’s options for relocation in his report. He notes that it is plausible that Al-Daini could use his political connections to take reprisals against the Appellant (paragraph 340). Dr Fatah notes that the family members of Ba’ath party members have been targeted (paragraph 79). However, the Appellant’s situation is worse than this, as he also fears Al-Daini’s followers. Al Qaeda are still active in Iraq (paragraph 87). Even individuals only loosely associated with multi-national forces are targeted (paragraphs 92-114). Looking at the available objective evidence I am not satisfied that somebody with the Appellant’s background would have sufficiency of protection within Iraq. I accept that he is a potential target and that two of his brothers have already been killed. If the Appellant was not to return to Baghdad, and I do not believe that it is safe for him to do so, the issue is where could he relocate. Dr Fatah, at paragraph 122 of his report, lists the difficulties faced by individuals relocating within Iraq. Can the Appellant relocate in the KRG? For Arabs it is necessary to have a sponsor. An Iraqi civil status ID and an Iraqi national certificate have to be produced. Once the person relocating has found accommodation he has to contact the local security services. Food ration cards cannot be transferred (paragraph 131). Dr Fatah concludes that the Appellant would face serious obstacles as an Arab relocating in the Kurdish region. However, the Appellant’s case is exacerbated by the fact that he is not just any Arab but the son of a Ba’ath party member who worked abroad for the Saddam Hussein regime and the brother of a pilot in the Iraqi air force at the time of Saddam Hussein's rule. At paragraph 193 of his report, Dr Fatah notes that the authorities struggle to protect themselves from insurgent activities and concludes that the Iraqi authorities cannot provide protection from insurgent groups for individuals such as the Appellant. 45. My analysis of Dr Fatah’s report is that the Appellant cannot realistically relocate either in the KRG or in Iraq outside of Baghdad. I do not accept that somebody who is a specific target such as him would be able to successfully relocate. I note that the Appellant would have to start the procedure of relocation in Baghdad. In another area he would have to enrol with the Mukhtar. It would be difficult for him to relocate anonymously (paragraph 203). He would have no social network, which is vital in Iraqi society (paragraph 204). It would be difficult for him to find work and he would be potentially isolated. . As a Sunni, I accept that it would be difficult to relocate in a Shia area. He would have no extended family. In my judgement he would be an easy target for Al-Daini and his followers.”
[12]Dr Fatah had provided an expert's report dated 28 October 2010, which had been supplied to the respondent well before the hearing. It was not an agreed report but the respondent was fully on notice of its contents and had not requested his attendance for cross examination.[13]In an earlier passage in his determination Immigration Judge Crawford said that, in determining the appeal, he considered among other materials the country guidance decision of the Upper Tribunal (Immigration and Asylum Chamber) on Article 15(c) of the Qualification Directive (Council Directive 2004/84/EC) in the case of HM and others (Article 15(c)) Iraq CG[2010] UKUT 331. Article 15(c) of the Directive relates to “serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”[14]In HM the core questions were whether there was a risk of indiscriminate violence arising from armed conflict within the meaning of Article 15(c) in parts of Iraq and, if there was such a risk, whether internal relocation was available. As summarised in the headnote the Upper Tribunal concluded :
“v. The degree of indiscriminate violence characterising the current armed conflict taking place in Iraq is not at such a high level that substantial grounds have been shown for believing that any civilian returned there, would, solely on account of his presence there face a real risk of being subject to that threat. .. vii. If there were certain areas where the violence in Iraq reached levels sufficient to engage Article 15(c) the Tribunal considers it is likely that internal relocation would achieve safety and would not be unduly harsh in all the circumstances.”
At paragraph 29 of his determination Immigration Judge Crawford said: 15. "Mr O'Ryan referred me to the case of HM. He made the point that the appellant did not fear the general lawlessness in Iraq, but rather that he is a specific target of terrorist militia and/or because of his father's membership of the Ba’ath party." Immigration Judge Crawford accepted this argument, stating at paragraph 43: 16. "I make a finding of fact that the appellant does not fear the general lawlessness in Iraq but that he fears militia allied to Al-Daini, who have already killed his two brothers. I accept that the appellant has himself received threats... I accept that Al-Daini's supporters have targeted him and will continue to target him." That paragraph immediately preceded the judge's consideration of the argument about relocation.[15]Immigration Judge Crawford's determination was dated 10 January 2011. The Home Secretary applied for permission to appeal. On 28 April 2011 Immigration Judge Alis found that there had been an error of law. He upheld the findings in paragraphs 32 to 43 (that is, all the findings of fact except in relation to a relocation) but he set aside the decision in paragraphs 45 to 46 relating to the relocation issue on the ground of material error of law. He adjourned the case for further hearing in relation to that issue. The further hearing took place on 12 July 2011. In his determination he summarised the error of law in Immigration Judge Crawford's determination as follows: “a. Dr Fatah's report was not accurate on requirements for entry to the KRG and his report did not make any reference to the April 2010 Danish court or the decision of HM b. the Immigration Judge did not actually consider the decision in HM despite it being a country guidance case and the Immigration Judge made alternative findings based on Dr Fatah's report which did not have regard to the country guidance case."

Immigration Judge Crawford accepted this argument, stating at paragraph 43:

[16]Mr O'Ryan's submissions were simple and succinct. He submitted that, contrary to the view taken by Immigration Judge Alis, there was no error of law by Immigration Judge Crawford, still less a material error. The judge found that the appellant would be a likely target for Al-Daini's men not only in his home area but also elsewhere in Iraq including the KRG. There was evidence of what had happened to the appellant and his family, and from Dr Fatah's report, on which the judge was entitled to reach that finding. The judgment in HM was not germane, because it went to a different issue or issues. Accordingly Immigration Judge Alis was wrong to set aside the determination.[17]On behalf of the Home Secretary Mr Kellar advanced three main submissions. First, there was no clear finding by Immigration Judge Crawford that the appellant would be at risk in the KRG. Secondly, if there was such a finding, Immigration Judge Crawford erred in reaching it because he failed to have proper regard to the decision in HM. Thirdly, it was not open to the appellant to argue before this court that there was a finding that the appellant would be at risk in the KRG because that is not how he had argued the case before the Upper Tribunal. I take those points in turn.[18]As to the first point, paragraphs 44 and 45 of Immigration Judge Crawford's determination were subjected to detailed scrutiny. To my mind it is clear that the judge did find that the appellant would be at risk from Al-Daini's supporters in the KRG as well as elsewhere and the argument to the contrary adopts an unnaturally narrow interpretation of what the judge said. I refer, in particular, to the final sentence of paragraph 44 and the first two sentences and the final sentence of paragraph 45. Paragraph 44 concluded :
“At paragraph 193 of his report, Dr Fatah notes that the authorities struggle to protect themselves from insurgent activities and concludes that the Iraqi authorities cannot provide protection from insurgent groups for individuals such as the Appellant.”
In the expert's report, that paragraph stated under the heading “Overall conclusions”: 21. "It has been shown in this report that the authorities struggle to protect themselves from insurgent activities, and additionally fail to protect individuals from the many insurgent attacks which occur throughout Iraq."[19]It is plain that Immigration Judge Crawford took that paragraph as referring to Iraq generally, and I include the KRG, because this is in a final paragraph setting out conclusions following his detailed examination of the various issues raised in the case. Also in those conclusions, at paragraphs 198 and 200, Dr Fatah referred to a demonstrated ability of insurgent groups to share information for their own gain. He stated that the ability to track down individuals who were relocated to different areas in Iraq was largely due to insurgent groups being able to engage with other insurgent groups, and that evidence had shown that insurgent groups can target individuals throughout Iraq due to their vast network of information links. Again, in context, it seems to me perfectly clear that those paragraphs were not intended to exclude the KRG and that the judge was entitled to read them more broadly.[20]In paragraph 45

the judge stated :

"My analysis of Dr Fatah’s report is that the Appellant cannot realistically relocate either in the KRG or in Iraq outside of Baghdad. I do not accept that somebody who is a specific target such as him would be able to successfully relocate. ... In my judgement he would be an easy target for Al-Daini and his followers."

In the expert's report, that paragraph stated under the heading “Overall conclusions”:

[21]It is wrong to read the final sentence as intended to exclude the KRG from his conclusion that the appellant would be an easy target. As the opening sentence makes plain, the judge was expressing his conclusion about risks to the appellant in the Baghdad region and in the main area of Iraq outside Baghdad and in the KRG.[22]The second question is whether the judge erred in law in failing to consider and apply HM. It is plain, in my mind, that Immigration Judge Crawford did consider HM. He referred to it explicitly. He summarised the argument advanced on the appellant's behalf about why it was not relevant and he made specific findings that the appellant's fear was not of general violence but of targeted violence. Targeted violence based on the particular experience of a person and his family is self evidently a fact-specific matter. It was not part of the issues at which HM was directed. Mr Kellar said that there were two discrete issues addressed by the Upper Tribunal in that case. The first was of the risk of generalised violence and the second was of the availability of relocation, but it is impossible to treat the two as freestanding. The second issue was premised on there being a risk from generalised indiscriminate violence rather than a targeted risk and the question is whether, in such circumstances, relocation might provide available security. The court was not addressing the issue whether such a relocation would provide security for somebody who was targeted by a terrorist group which might wish to pursue him wherever he was within its reach.[23]I should add that the history of HM is unusual. The Upper Tribunal's initial decision was made without legal argument on behalf of the appellants, who had ceased to be legally represented by the time of the hearing. On that procedural ground, on 13 December 2011, the decision of the Upper Tribunal was set aside by this court and the case was remitted to the Upper Tribunal for a further hearing, [2001] EWCA Civ 1536. In a further hearing, HM (2) [2012] UKUT 00409, the Upper Tribunal has held that nothing in the further evidence which it heard indicated that the conclusion which was given in HM (1) regarding the country conditions in Iraq was wrong. There was some interesting discussion about the status of the Upper Tribunal's original decision, but it is unnecessary to go into that question because, as Immigration Judge Crawford correctly identified, the appellant was not advancing a case based on generalised violence. The case advanced by the appellant was more focussed and specific. It required the judge to concentrate, as he did, on the specific threat to the appellant from Al-Daini's militia.[24]Mr Kellar developed a more specific point, referred to by Immigration Judge Alis in his ruling, that there had been an error of law in Immigration Judge Crawford finding in paragraph 44 that the appellant would have difficulty in entering the KRG and would have required a sponsor. This was contrary to the findings of the Upper Tribunal in HM and therefore constituted an error of law, according to Mr Kellar's submission.[25]Assuming for the purposes of this argument that this was an error of law rather than a finding of fact open to him on the evidence, it was, in my judgment, certainly not a material error. It is therefore unnecessary to address the question whether the assumption which I have made is correct, for the judge went on to consider the position on the assumption that the appellant would be able to enter the KRG and concluded that he would be a target for Al-Daini's militia wherever he chose to go. That finding was in no way affected by the question whether it would have been difficult for him to have gone into the KRG at all. Further, I can see no basis for contending that there was an error of law in the finding that he would be a target for Al-Daini in the KRG. There is nothing in the findings in HM, whatever its status, which would provide a foundation for that argument.[26]Indeed, as Tomlinson LJ observed in argument, if the border between the KRG and neighbouring Iraq was as porous as the Home Secretary contends, enabling persons such as the appellant to enter the KRG without difficulty, there would be the same ease of access for any Al-Daini militia supporters who might wish to pursue him on the discovery that he had returned from the UK.[27]The third argument was based on the way in which the case was presented on the appellant's behalf before the Upper Tribunal. At the hearing on 28 April 2011 it is clear that the appellant sought to uphold the original finding that there would be exposure to risk in the KRG. I say that because one of the recorded submissions of the appellant on that occasion was that the decision in HM dealt with the general situation in KRG but did not deal with people with specific risk factors. The necessary implication behind that submission is that, in the present case, there had been a finding that the appellant was somebody with a specific risk factor which would affect him in the KRG.[28]At the subsequent hearing in July 2011 the judge's summary of the appellant's argument is not entirely easy to follow. Under the heading "The appellant's submissions" the judge recorded first: "The appellant relied on the original submissions and submitted that the finding of the error of law had been the approach taken by the Immigration Judge in paragraph 44 of his determination and in particular the approach taken by the expert in considering all the evidence. Something appears to have gone wrong in the transcript. There is at least something opaque about it.[29]After summarising other submissions, the judge recorded that it had been submitted on behalf of the appellant that : “The appellant is not a Kurd and as he and his family would speak Arabic it is submitted that this would increase the risk he faced and there was no evidence the KRG could offer him protection."[30]Implicit in that submission was an argument that there was potential risk to the appellant in the KRG against which there would not be sufficient protection. Although the account of the argument is not entirely clear, I am quite unpersuaded that we should conclude that the appellant is today trying to advance a point previously abandoned, and therefore it is unnecessary to consider what would be the proper approach to take if that were the case.[31]I should add that this point arose in the course of Mr Kellar's submissions and the court did not find it necessary to invite Mr O'Ryan's submissions in reply/[32]Accordingly I would reject the arguments advanced by the respondent in support of Immigration Judge Alis's judgment and would accept the appellant's submission that he was wrong to hold that Immigration Judge Crawford made a material error of law. I would therefore allow the appeal and reinstate the determination of Immigration Judge Crawford.[33]I agree.[34]I also agree.

Order

Appeal allowed