England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2 Tuesday, 20 November 2002

1. LORD JUSTICE SIMON BROWN: Having decided that this applicant should have permission to appeal, it may assist if I indicate just very briefly why. Keene LJ refused permission on the documents in these terms:

"1. None of the grounds raised have any real prospect of success. On the findings made below, the KAR [Kurdish Autonomous Region] would be a safe area to which the applicant could re-locate. Since the applicant would not have a well-founded fear of persecution when there, the 'protection' test is irrelevant.

2. The ability to obtain access to the safe area does not have to be immediately achievable. The point raised in para 10 of the skeleton was, in effect, rejected in Gardi, the reasoning in which remains persuasive despite its formal annulment. The Ministerial undertakings ensure that the applicant will not be sent back to or via Baghdad or Baghdad-controlled Iraq while present conditions persist.

As for the Tribunal's approach to the issue of 'undue hardship' being involved in the internal relocation option, it must be for an applicant to raise and establish by evidence the considerations which indicate such hardship: see Salim [2000] Imm AR 6. It is not for the Tribunal to do so on its own initiative."

Keene LJ it was who gave the leading judgment in the case there referred to, Gardi [2002] 1 WLR 2755, and his views must therefore be accorded very considerable respect.

2. There seems to me, however, a notable difference on the facts between this case and Gardi, and indeed the nine other applicants who raised the same points as arose in Gardi. They all came from the KAR: this applicant, by contrast, comes from the Ba'ath Party controlled area of Iraq. Gardi was held to have no well-founded fear of persecution in his own home area, that is the KAR. In those circumstances the protection test, which in paragraph 38 of his judgment Keene LJ was inclined to find resolved in Gardi's favour, was held irrelevant. He was simply not a refugee (see paragraph 29 of this judgment), merely someone who could not yet be safely returned home (see paragraph 34). Here there seems to me a reasonable prospect of successfully arguing that the applicant is a refugee and the question whether he can reasonably be expected to relocate in the KAR, once that could safely be achieved, is a materially different question from that raised in Gardi.
3. These comments reflect the arguments raised in paragraphs 1-13 inclusive of the presently pleaded grounds of appeal. I would add only that I am unimpressed by paragraphs 14 and 15 of those grounds. Paragraph 3 of Keene LJ's reasoning above seems to me to defeat that secondary basis of appeal. I do not expressly shut it out, having not heard argument today from Mr Raza Husain upon the point, but I recommend a fastidiousness of approach as to the grounds henceforth to be argued.

It is for those reasons that for my part I think it appropriate to grant permission to appeal in this case.

4. LORD JUSTICE CLARKE: I agree.
ORDER: Applications allowed. Appeal to be heard by three Lords Justices. Permission granted to reamend the grounds as set out in paragraph 15 of the outline submissions. Consideration to be given by the Civil Appeals Office to list this case to be heard with Kader v SSHD C/2002/2140 and Maghdeed v SSHD C/2002/2106, in which event they are to be listed with a time estimate of one day. (Order does not form part of the approved judgment)