AR (Articles 2 and 3, removals policy) Iraq [2004] UKIAT 00273 (28 September 2004) [2004] UKIAT 00273

UKIAT
AR (Articles 2 and 3, removals policy) Iraq [2004] UKIAT 00273 (28 September 2004)
[2004] UKIAT 00273 · 2004-09-28
[1]AR (Articles 2 and 3 – removals policy) Iraq [2004] UKIAT 00273 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 27 July 2004 Date Determination notified: 28 September 2004 Before His Honour Judge Huskinson – Vice President Mr N H Goldstein – Vice President Mr R Baines JP Between Secretary of State for the Home Department APPELLANT and AR RESPONDENT For the Appellant: Mrs L. Singh (Home Office Presenting Officer) For the Respondent: Mr G. Brown (Counsel – instructed by Thornhill, Solicitors) DETERMINATION AND REASONS The Secretary of State appeals to the Tribunal, with permission, from the Determination of Mrs C. J. Martin, Adjudicator, promulgated on 3 September 2003 whereby she dismissed on asylum grounds but allowed on human rights grounds the appeal by the Respondent (hereafter called "the Claimant") against the Secretary of State's decision to refuse asylum to the Claimant and against his decision to refuse the Claimant leave to enter the United Kingdom and to give (or propose to give) directions for the Claimant's removal to Iraq.[2]The Claimant is a citizen of Iraq of Kurdish ethnicity born in Sulaimaniyah on 10 December 1973. For the purposes of the present Determination it is not necessary to set out in any detail the Claimant's account on the basis of which he claimed asylum. In summary it can be noted that the Claimant's claim to asylum was based upon the fact that he had been a member of the Iraqi police force and also, separately, by reason of some claimed fear of adverse treatment from members of the Abarash tribe. He feared he could not return safely to Iraq because he contended the Abarash tribe would wish to kill him and are powerful within the PUK. He contended he would also be killed because of his time in the police force for the Iraqi regime.[3]The Adjudicator concluded that the Claimant's claim lacked credibility. She also however concluded that even if his account were true there was no longer any risk to him from the Ba'ath Party or the PUK or the Abarash tribe. For reasons she gave she concluded that he would not be at risk on return by reason of his service in the Iraqi police force nor would the Abarash tribe be interested in the Claimant now. Accordingly the Adjudicator dismissed the Claimant's asylum appeal. There has been no cross-appeal by the Claimant in respect of this dismissal.[4]However the Adjudicator allowed the Claimant's appeal under Articles 2 and 3 of the ECHR. Her reasoning on this aspect of the case is contained in paragraphs 24-28 of her Determination which are in the following terms:
" 24. The Human Rights issue is less clear and comes down to whether returning the Appellant to Iraq today would carry a real risk that his rights under Article 2 or 3 would be breached. 25. The Bulletins that I have been provided with by the Respondent run to 116 pages in total. Bulletin 7 is little more than an Operational Guidance Note and I find it is not objective therefore. Furthermore, it seems to suggest that it is safe to return to Iraq and in particular to Northern Iraq. However, that Bulletin takes no account of the contents of Bulletin 5 which is the report of the joint British/Danish Fact Finding Mission to Damascus, Oman and Geneva on conditions in Iraq and is dated 23 rd July 2003. Miss Heywood referred me to sections in the Bulletins which suggested that Northern Iraq was safe to return to and that the situation in Mosul is calm and stable with electricity, water and communications working well. That is contained at 3.10 in Bulletin 3/2003 and the information is from 13 th May 2003. However, there are numerous references in the Fact Finding Mission to the fact that the situation is far from safe. I refer to such matters as:- Paragraph 2.1 "
UNHCR in Geneva was of the opinion that although major confrontations between Kurds, Arabs and Turkmen in Northern Iraq have been avoided so far, there are reports of tensions caused by reverse movements to the Arabisation policy in particular in the area of Kirkuk and Mosul." Paragraph 2.2 "As the situation is unstable and changing continuously, neither persecution by non-state agents nor further deterioration physical, material and legal safety for an increasing number of persons in Iraq can be excluded." Paragraph 2.8 "Conditions in Mosul and Kirkuk were fairly good immediately after the war. They have deteriorated since early/mid June, with increasing tension between Kurds and Arabs over de-Arabisation although these problems have not been as severe as anticipated." Paragraph 2.11 "The coalition was able to bring down the old government, but so far it has been unable to provide security for the Iraqi people." Paragraph 2.14 "The situation in the Centre Governorates (Kirkuk, Mosul and Tikrit) remains unstable, with regular violent incidents, confrontations between ethnic groups and manifestations organised by former government employees. The motivations behind these incidents are often a mixture of political, ethnic and economic considerations." 26. CIPU then reports specifically on the situation in the Kurdish Autonomous Area in the north and these reports themselves are mixed. 27. The situation is currently that UNHCR are urging against the return of refugees. The UNHCR have been unable to investigate the situation properly due to the security situation and their being unable to travel safely. 28. Given the vastly contradictory reports in the Country Information, I bear in mind the very low standard of proof and am forced to the conclusion that returning the Appellant to Iraq at this time would lead to a real risk that his rights under Article 2 and 3 would be breached."[5]Before turning to the substance of the Secretary of State's appeal against the Adjudicator's findings under Articles 2 and 3 it is first necessary to deal with a procedural point raised by Mr Brown.[6]The procedural point is based upon the fact that there exists at present a policy in place under which the Secretary of State does not forcibly return citizens of Iraq to Iraq. We asked for confirmation from Mrs Singh as to what the policy was and she informed us that as at the date of the hearing the Secretary of State does not carry out any enforced removals to Iraq. She stated that there is no indication given by the Secretary of State as to how long this policy will last for. She further stated that no fresh removal directions would be issued against the Claimant as and when this policy ceased to operate. She drew attention to the wording of the removal directions which state that the Secretary of State has given or proposes to give directions for the removal of the Claimant: " ….by a scheduled service at a time and date to be notified to… IRAQ".[7]It should be noted, having regard to the date of the Secretary of State's refusal of asylum in the present case and the date of the decision regarding removal directions (respectively 18 February 2002 and 26 March 2002) that the Claimant's right of appeal in the present case arose under the Immigration and Asylum Act 1999 Section 69 (so far as concerns the asylum appeal) and Section 65 (so far as concerns the human rights appeal, if any – as to which Mr Brown raises an argument).[8]The procedural point raised by Mr Brown in the light of the Secretary of State's present policy of no enforced removals is as follows. Mr Brown argues that at the present stage there is no scope in this case for any human rights appeal under Articles 2 or 3 at all. It is premature for the Tribunal to consider such matters and it was premature for the Adjudicator to do so. It follows in his submission (and he accepts, indeed he avers, this) that the Secretary of State's appeal against the Adjudicator's finding in favour of the Claimant under Articles 2 and 3 must be allowed. However the appeal should not be allowed on the merits. Instead the appeal should be allowed upon the jurisdictional point, namely that the Adjudicator, having found against the Claimant on the asylum appeal, should have noted the policy of no enforced removal and should have concluded that, in the light of this policy, it was premature to consider any human rights argument. Mr Brown argues that all human rights arguments will be for the future, namely if and when the Secretary of State cancels the present policy and seeks to enforce a removal against the Claimant.[9]Mr Brown developed his argument both by reference to previous authority and by reference to practicality. As regards the latter he commented how the circumstances in Iraq were speedily changing, as was obvious from the general international news and as was expressly recognised by the Adjudicator in paragraph 15 of the Determination. At present it was not known when, if ever, the Secretary of State would seek forcibly to remove the Claimant. Accordingly it was not known what the circumstances would be as at that date of enforced removal and accordingly no appellate body (be it the Adjudicator or the Tribunal) could properly consider whether the Secretary of State's decision to remove the Claimant would involve any real risk of infringement of the Claimant's Article 2 or 3 rights.[10]So far as concerns previous authority Mr Brown referred to the Court of Appeal judgment in Dube [2003] EWCA Civ 1271 dated 30 July 2003 in relation to an applicant from Zimbabwe, in respect of which country there was also a policy of no present enforced returns. In that case Lord Justice Simon Brown had adjourned the case with a view to it being brought back for full argument on what is the correct and sensible approach to cases: " ….which are brought on the wholly fictional basis that the Secretary of State is minded to return the Appellant to his home country, on the basis that to do so would violate Article 3, when in truth the Secretary of State has no such intention whatever. We also want fully argued that the true scope of Section 65, the consequences of either further adjourning or dismissing, or indeed allowing such appeals and we indicate that, until this matter has been restored and fully argued and decided, any similar appeals, both to this court or by way of application for permission to appeal to the court or, indeed, in the IAT should not be further processed".[11]The Learned

Lord Justice added this:

" It may be that the court thinks it perfectly obvious that appeals of this sort should not be heard, the Article 3 argument being wholly artificial; and it may be that the real issue ought to be what should the Secretary of State be doing, if anything, with regard to this category of Appellant"
. It was accepted by both representatives that in fact this case never did return to the Court of Appeal for full argument and there is consequently no reported judgment on the point. Mr Brown also referred to [2003] UKIAT 00016 YL especially at paragraphs 62 and 63 and to [2003] UKIAT 00017 SP especially at paragraph 6. He particularly referred to the following passage in paragraph 63 of the former decision:
" If the threat of removal is not imminent then there can be no violation of the Convention: see Vijayanathan and Pushparajah v France [1992] 15 EHRR 62 . Plainly if Home Office policy is either not to remove or to return to the UK persons whom destination countries will not accept as entitled to return, there is no meaningful sense in which there can be said to be an imminent threat of removal in the case of persons falling under this policy"
. Having regard to this case and the case of 17 SP Mr Brown argued that the threat of removal had to be an imminent one. In the present case he argued there was no imminent threat of removal and therefore there was no jurisdiction to consider the human rights appeal.[12]In response Mrs Singh drew attention to the fact that the policy was of no promised duration and could be changed at any stage. She drew attention to the wording of the removal directions, which indicated the removal was at a time and date to be notified. She drew attention to the fact that no further removal directions were therefore needed or would be given. The Claimant could be removed at any moment, subject only to the Secretary of State changing his policy, which he could do unilaterally and without any reference to the Claimant or anyone else. Accordingly removal was imminent. She referred to a Tribunal Determination in [2004] UKIAT 00084 RH at paragraph 16 where on the facts of that case (and even where there were no removal directions out against the applicant) the Tribunal concluded that the Claimant was at imminent risk of removal and that the human rights aspects of the case were therefore justiciable.[13]In reply Mr Brown sought to distinguish 84 RH on the basis that, in that case, there was no policy in place against any enforced removals, whereas in the present case the Secretary of State was publicly proclaiming through his policy that the United Kingdom is not at present removing persons against their will to Iraq.[14]Having heard argument upon this procedural point the Tribunal indicated that we would reserve our decision on the point but would, in any event, hear argument upon the merits of the Article 2 and 3 appeal so that we could deal with this aspect of the matter supposing, contrary to Mr Brown's argument, we concluded that there was a justiciable Article 2 and 3 appeal before the Adjudicator and before the Tribunal. Before coming to these matters, we should now give our conclusions on the procedural point.[15]We are unable to accept Mr Brown's argument. Our reasons for doing so may be summarised as follows:(1) Although treating with respect and giving all due weight to the observations of Simon Brown LJ in Dube , the fact remains that, unfortunately, we do not have the benefit of any concluded views from the Court of Appeal on this point. What the Learned Lord Justice was there doing was drawing attention to the fictional basis of considering a human rights appeal in circumstances where it is obvious that, for the time being, the applicant is not going to be returned. The Court of Appeal is drawing attention to the argument which needs to be considered and decided upon. However the case never came, so we are assured, to any full argument or judgment. Accordingly the points raised by way of questions for argument have not been decided by the Court of Appeal.(2) Section 65 of the Immigration and Asylum Act 1999 provides: " A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, …..acted in breach of his human rights may appeal to an Adjudicator against that decision…. (2) For the purposes of this Part – (a)…. (b) An authority acts in breach of a persons human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by Section 6(1) of the Human Rights Act 1998.(3) Subsections (4) and (5) apply if, in proceedings before an Adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the Appellant's entitlement to enter or remain in the United Kingdom,…. acted in breach of the Appellant's human rights.(4) The Adjudicator, or the Tribunal, has jurisdiction to consider the question.(5) If the Adjudicator, or the Tribunal, decides that the authority concerned – (a)… (b) Acted in breach of the Appellant's human rights, the appeal may be allowed on the ground in question." (3) The Secretary of State has taken a decision relating to the Claimant's entitlement to enter or remain in the United Kingdom, namely he has decided to give (or propose to give) directions for the Claimant's removal by scheduled service at a time and date to be notified to Iraq. We were told by Mrs Singh that no further removal directions would be issued and we accept that this is so. Unless some appeal either on asylum grounds or human rights grounds succeeds against the Secretary of State's decision to issue these removal directions, the Claimant is at risk of removal, subject only to the policy of no enforced removals. (4) However the Secretary of State's policy is a matter for him and a matter which is of no promised duration and which he can change at any moment without the Claimant having any right to challenge this change of policy. While it may be surmised that this policy may remain in place for a significant period, the Claimant has no legal entitlement to require that it does so. (5) Accordingly, having lost his appeal against the removal directions on asylum grounds under the Refugee Convention, the Claimant faces the fact that he is in law at risk of imminent removal at whatever time the Secretary of State may choose to change his policy and to enforce the directions. Save only for the human rights argument, the Claimant has no further effective remedy.(6) Accordingly we conclude that the risk of return to Iraq is indeed an imminent one as a matter of law notwithstanding that one may suspect, as a matter of reality, that removal is not all that imminent. We note the comment of the Tribunal in 17 SP at paragraph 6 to the effect that a risk cannot be imminent if the Appellant has available a further effective remedy. Reference is made to the same case, namely Vijayanathan and Pushparajah v France [1992] 15 EHRR 62 as is referred to in paragraph 63 of the case of 16 YL . However, save only for the human rights appeal, the Claimant has no other effective remedy available to him.(7) Accordingly we conclude that the Claimant was entitled to allege before the Adjudicator that the Secretary of State's decision to issue removal directions for Iraq constituted (notwithstanding the existence of the no enforced removal policy) a decision under the Immigration Acts relating to the Claimant's entitlement to remain in the United Kingdom which breached the Claimant's human rights. This allegation having been made by the Claimant, the result is that under Section 65(4) the Adjudicator and the Tribunal both have jurisdiction to consider the question.[16]We therefore now turn to the merits of the Secretary of State's appeal against the Adjudicator's conclusion that the Secretary of State's decision to remove the Claimant was a breach of his human rights under Articles 2 and 3.[17]On this point Mr Brown conceded (as indeed he had to because the point is a clear one) that the Learned Adjudicator did err in her approach to the human rights argument in paragraph 25 of her Determination. She appears to have thought that certain reports of tension and of the fact that the position is unstable and of the fact that the security forces are unable to provide security in general, were matters which led to a real risk of breaches or Articles 2 and 3. It should be noted that she had concluded that there was no real risk of the Claimant being targeted. Accordingly her conclusions were based on the general situation for a non-targeted returnee. Mr Brown accepted that the Adjudicator should have considered the question of whether general country conditions could give rise to a real risk of Article 2 or 3 infringing treatment for the Claimant having regard to the principles summarised in the next paragraph, which constituted the basis of Mrs Singh's argument as to the proper legal approach. Mr Brown accepted that the Adjudicator did not follow such an approach.[18]Mrs Singh contended that having regard to Hariri [2003] EWCA Civ 807 , especially at paragraph 8, and having regard to the Tribunal Determination in [2003] UKIAT 00065 N (Burundi) especially at paragraphs 13 to 15, general reports of tensions and changing circumstances and deteriorating security and instability was not sufficient to show a real risk of infringement of Article 2 or 3 rights. Mrs Singh argued (and Mr Brown accepted) that, as shown by paragraph 8 of the Court of Appeal judgment in Hariri , in circumstances where an applicant is not at risk of being targeted by reason of his special circumstances, there could be no real risk of Article 2 or 3 infringing ill-treatment unless the situation to which the applicant would be returning was one in which such violence was generally or consistently happening. There would need to be shown a consistent pattern of gross and systematic violation of fundamental human rights. We agree – and in so agreeing we have not overlooked the later Court of appeal decision in Batayav [2003] EWCA Civ 1489 especially at paragraphs 37 to 39.[19]Mrs Singh referred to the general circumstances in Iraq in the April 2004 CIPU Country Report at paragraph 6.15 and following, especially at paragraphs 6.20 and 6.21 which shows that the humanitarian situation in the three northern governorates to be better than originally predicted. It is noted that unemployment was virtually zero in Sulaimaniyah which was experiencing a construction boom.[20]While making no formal concessions, Mr Brown (to whom the Tribunal is grateful for the helpful and realistic way in which he presented the case) accepted that he was unable to point to any objective evidence before the Tribunal showing that persons who have returned to Iraq become victims of a consistent pattern of gross and systematic violation of fundamental human rights. He referred to the Amnesty International Report in the bundle, but was unable to argue that this demonstrated any such consistent pattern. Clearly any individual returnee may be the unfortunate person who suffers from random violence in a troubled country where there are major security difficulties. However that does not show that any individual returnee (assuming that that returnee will not be targeted) would be at any real risk of Article 2 or 3 (or Article 2) infringing treatment.[21]We also find helpful the analysis in paragraphs 12 to 15 of the Tribunal Determination in 65 N (Burundi) . We remind ourselves that the Claimant comes from Sulaimaniyah, where conditions are better than in former Saddam Hussein controlled Iraq. We also bear in mind that the Claimant would merely be one member of the population suffering from the general difficulties in his country along with his fellow citizens. We reject any suggestion that the general conditions either in northern Iraq or, indeed, in the remainder of Iraq are generally so adverse that any and every citizen (being a non-targeted citizen) will be living in conditions which constitute Article 3 (or Article 2) infringement, or will be at any real risk of doing so.[22]We have not overlooked the UNHCR current policy which advises against returns. The UNHCR guidance recognises that some voluntary repatriation movements have taken place, mainly to southern Iraq from Iran and from Rafha Camp in Saudi Arabia, but UNHCR stresses that it is not promoting voluntary returns yet. UNHCR is however continuing to facilitate, so far as it can under present circumstances, the return of individuals who express a clear wish to repatriate. However UNHCR stresses that, with no international staff inside the country, it is not in a position to monitor returnees nor to provide them with assistance once they are inside Iraq. The document continues:
" UNHCR has therefore requested governments not to adopt any measures which are intended to encourage voluntary returns, including of rejected cases"
The Tribunal fully understands why, as a matter of logistics and practicality, UNHCR is requesting governments not to encourage voluntary returns and also requesting a continued ban on forced returns. However we do not read the document as an indication of an opinion by UNHCR, based on evidence, that the circumstances in Iraq are so grave that an individual returned to Iraq would face a real risk of treatment infringing his Article 2 or 3 rights.[23]In the result therefore we consider that the Learned Adjudicator erred in law in her analysis of whether the Claimant would face a real risk of Article 2 or 3 infringing treatment on return to Iraq. We have endeavoured to identify the correct principles to be applied and we have applied them ourselves. The result of this exercise is that we conclude that there do not exist substantial grounds for concluding that the Claimant would, on return to Iraq, face any real risk of treatment which would infringe his Article 2 or Article 3 rights.[24]If and when the Secretary of State seeks to enforce the removal directions it would be open to the Claimant, if there had been some relevant significant change in circumstances which might place him at real risk of infringement of his Article 2 or 3 rights if returned at that date, to ask the Secretary of State to reconsider the decision to remove him.[25]In the result therefore the Tribunal allows the Secretary of State's appeal. His Honour Judge Huskinson Vice President