COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
SIR MARTIN NOURSE
| Mr Azad Gardi||Appellant|
- and -
Secretary of State for the Home Department
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr R Tam (instructed by Treasury Solicitor, London SW1H 9JS) for the respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Keene:
“Directions have now been given for your removal from the United Kingdom by scheduled airline to Iraq, at a time and date to be notified.”
“ENFORCED RETURNS TO NORTHERN IRAQ
The government recognises that there may be certain people from northern Iraq who are in need of international protection under the terms of the 1951 United Nations Convention relating to the Status of Refugees. However, there are also some asylum seekers from that region who, after careful consideration of their application, do not appear to meet the criteria set out in the Convention. The Office of the United Nations High Commissioner is on record as saying that it would not object to the return to northern Iraq of asylum seekers from that area who have been found through fair and objective procedures not to be in need of international protection.
To that end, the Government is in the process of exploring the options for returning Iraqi citizens of Kurdish origin to the northern part of Iraq, and these arrangements will be used to return such Iraqi nationals who do not qualify for leave to enter or remain in the United Kingdom.”
“I find that if the appellant is returned to Iraq by Baghdad there is a real risk that the appellant would be subject to this new law. The appellant’s Kurdish background would then make the probable prison term unduly harsh at this time. It is possible that return to Kurdistan may be safe for persons such as the appellant in the future, but at present I find that there is a real risk of significant harm amounting to persecution to this appellant if he is returned to Iraq at present by Baghdad.” (para. 8.7).
Consequently she allowed the appeal.
The IAT’s Decision:
“has no well-founded fear of persecution in his own area but as a matter of fact is to be returned elsewhere, the only question is whether he is at risk of persecution in his own country on the way to his home area.”
In the present circumstances Mr Gardi could not be returned to the KAR except by passing through areas where he would be at risk. Mr Blake accepts, however, that mere inability to get back safely to a “safe” home area is not sufficient to satisfy the first limb of the definition of a refugee.
“The very structure of the Convention requires that the protection will be provided not by some legally unaccountable entity with de facto control, but rather by a government capable of assuming and being held responsible under international law for its actions.” (page 46).
“Since IPA analysis is concerned with the possibility of a present source of alternative internal protection, the first question is whether the asylum-seeker can in fact gain access.” (page 27)
The appellant is in no position currently to gain access to the KAR, even if it were able to provide him with the necessary protection.
“UNDERTAKING BY THE SECRETARY OF STATE
Consistent with the statement approved by the then Minister of State, the Secretary of State confirms that he will not seek to enforce the removal of any failed Iraqi asylum seeker to the Kurdish Autonomous Zone (KAZ) of northern Iraq unless satisfied that he is able to do so without breaching obligations under the Refugee Convention and the Human Rights Act 1998. The Secretary of State will be mindful of these obligations in considering not only conditions in the KAZ itself but also the route of return to the KAZ.
For the avoidance of any doubt the Secretary of State also confirms that he will not for the time being enforce return of any failed Iraqi asylum seeker either to or via territory controlled by the Iraqi government.
Subject to the above, it is the Secretary of State’s intention to effect removal as soon as it is practicable to do so.”
It seems that this undertaking has been drawn up in the light of criticisms made by the IAT of the way in which the respondent’s position had been outlined to it and to the Special Adjudicator.
Discussion on the Convention Issue:
“For the purposes of the present Convention, the term “refugee” shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country ...”
“must satisfy two separate tests: what may, for short, be called “the fear test” and the “protection test.””
“were it necessary to ask in every case: is there a part of the claimant’s home country in which he would be unsafe? ... If it is plain that the claimant can safely be returned to his own home area and so is not being required to uproot himself and move to a different area, there is simply no reason to temper the strict interpretation of Art 1A(2) ‘is unable to avail himself of the protection of that country’ ... Why ever should it be ‘unduly harsh’ to expect a claimant to return to live in his own home area once it is accepted that it is safe for him to do so?” (para 32).
“The question of internal flight only arises when a claimant has a well-founded fear of persecution in his own home area. If he has no such fear there, the possibility of his movement elsewhere simply does not arise. He is not a refugee.”
“if the home state can afford what has variously been described as a ‘safe haven’, ‘relocation’, ‘internal protection’, or ‘an internal flight alternative’ where the claimant would not have a well-founded fear of persecution for a Convention reason, then international protection is not necessary. But it must be reasonable for him to go and stay in that safe haven.”
“in pursuance of the directions would be contrary to the Convention.”
Conclusion on the Convention Issue:
The Procedural Issue:
“really does not touch on the preliminary issues which we are deciding.”
Mr Tam on behalf of the Secretary of State does not seek to dispute the appellant’s account of what happened before the IAT.
Sir Martin Nourse
Lord Justice Ward