WD (Article 3 – not undue harshness) Iraq  UKIAT 00034
Date of hearing: 12 January 2005
Date Determination notified: 4 February 2005
|Secretary of State for the Home Department
"38. Although I accept that the background information does refer to the changes in the law and changes in punishment I do not agree that this necessarily reflects a change of attitude at grass roots where the influence of tribal and religious law persists. I am also aware from the background evidence that since the war there has been an increase in such killings and an ever increasing presence of the Islamic Movement."
"40. I now address the issue of whether there would be a sufficiency of protection for the Appellant on return. I am aware from the Appellant's evidence which I have accepted as credible and which the Respondent has not questioned that although it was known that Dilman's father had killed his daughter the security forces and the police accompanied him to the Appellant's home to arrest him. I find that this is at odds with Respondent's assessment of the background information and I do not find that the Appellant could rely on the authorities for protection."
"42. I have found the Appellant's evidence as to his age credible. He is a minor and accordingly I find that it would be unduly harsh for the Appellant to re-locate to another part of Iraq where he has no support."
"To put it another way, when one is considering the specific action of the UK Government being challenged by an applicant as being in breach of Article 3 (usually in our jurisdiction removal to his own country) we may only take into account matters which relate to that decision, and which individually or in aggregate are of sufficient severity to engage Article 3, (and also Article 2 which is also an absolute obligation that may for practical purposes be subsumed within this). Matters that do not constitute "torture or inhuman or degrading treatment or punishment" as defined in human rights jurisprudence are not material. The Robinson derived tests of reasonableness and undue harshness are part of the assessment of refugee status. They are inappropriate to Article 3 consideration, which should be assessed on the basis of whether there is a real risk that the decision or action of the UK government complained about, would result in a breach of the terms of that Article."
MR JUSTICE OUSELEY