QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (AHMED MOHAMMED KURDU)
|- and -
|IMMIGRATION APPEAL TRIBUNAL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr Parishil PATEL (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice TOULSON:
The Adjudicator's Findings
"The Refugee Convention imposes upon each country a duty to provide surrogate protection but not in all circumstances. He may well have a well-founded fear of persecution in Iraq generally. If there is a part of the country to which he could relocate and it would not be unduly harsh for him to do so then the Appellant's asylum appeal must fail."
"Where it appears that persecution is confined to a specific part of a country's territory the decision maker should ask: can the claimant find effective protection in another part of his own territory to which he or she may reasonably be expected to move? We have set out, ante pp 939-940 appropriate factors to be taken into account in deciding what is reasonable in this context. We consider the test suggested by Linden JA in the Thirunavukkarasu Case 109 DLR (4th) 682, 687 "Would it be unduly harsh to expect this person… to move to another less hostile part of the country?" to be a particularly helpful one. The use of the words "unduly harsh" fairly reflects that what is in issue is whether the person is claiming asylum can reasonably be expected to move to a particular part of the country."
Proceedings in the Immigration Appeal Tribunal
"The Adjudicator misdirected herself as to the law and the facts. Having found the appellant credible, the Adjudicator should have allowed the appeal on asylum and human rights grounds in view of the objective evidence which was accepted. Further grounds are to follow".
Grounds of Application for Judicial Review
The Adjudicator's Approach to the Convention
"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."
" A lawful inquiry into the existence of an 'internal protection alternative' is not … simply an examination of whether an asylum seeker might have avoided departure from his or her country of origin ('internal flight') nor is it only an assessment of whether the risk of persecution can presently be avoided somewhere inside the asylum seeker's country of origin 'internal relocation'). Instead, 'internal protection alternative' analysis should be directed to the identification of asylum seekers who do not require international protection against the risk of persecution in their own country because they can presently access meaningful protection in a part of their own country. So conceived, internal protection analysis can be carried out in full conformity with the requirements of the Refugee Convention."
a) The Convention requires the satisfaction by an applicant for asylum of two separate tests, the "fear test" and the "protection test".
b) If an applicant would have a well-founded fear of persecution in his home area, then he has satisfied the fear test, and it is irrelevant when considering the fear test that there might be some other area of his country where the applicant would have no such fear and where it would not be unduly harsh to expect him to live.
c) Internal relocation can only arise as a relevant factor in relation to the protection test, and then only where the relevant area is under the control of an internationally recognised body capable of exercising the powers, functions and responsibilities of a state.
"If a person is not a refugee because there is a safe part of his country to which he could reasonably be expected to relocate, it would be very remarkable if a person were to acquire the status of a refugee when the safe area is one where he originally lived."
The implication of the first half of that sentence is contrary to the argument advanced by the Claimant.
Failure to Consider Evidence
MS SERGIDES: My Lord, I respectively ask for permission to appeal. The reason I do so, my Lord, is this: this is obviously an ongoing matter -- the issue about relocation in the autonomous area is ongoing. There are three cases at the moment which have been granted leave to appeal to the Court of Appeal, and I think they are going to be heard, unless my learned friend corrects me, in June. So, my Lord, I would argue that, given that this is an issue which is still very much in the air and given that these cases will be addressing the issue about relocation in the KA region, then it would be appropriate also for this matter to be given leave to appeal.
One of the cases deals with an appellant who is from the northern area of Iraq, but in that case the adjudicator held that it would be reasonable for him to relocate in the autonomous area. So the issues which will arise in that case are essentially the same issues which arise in this case: whether or not (a) he can be relocated in that area; and I would argue (b) whether or not it is unduly harsh to be relocated in that area. For those reasons, my Lord, I would respectfully ask for permission to appeal.
MR JUSTICE TOULSON: Do you have a report of those cases?
MS SERGIDES: My Lord, I have one. They are mentioned in Mr Seddon's skeleton argument and one of those cases was in the bundle. This is the case of Mahjid(?)
MR PATEL: My Lord, if I can assist.
MR JUSTICE TOULSON: Yes?
MR PATEL: There were two cases that were in the bundle: one was Mahjid; the other was Amwra(?). My Lord, there are four cases which are going to the Court of Appeal. I do not know about the timing of it.
I am not going to make any submissions against the grant of permission. My Lord, it is up to you whether or not you decide to grant permission.
MR JUSTICE TOULSON: What I really want to know is to what extent the issue in this case --
MR PATEL: I think the issues are broadly similar. The factual circumstances might be slightly different, but I believe the issues are broadly similar to the one that you have decided in this particular case.
MR JUSTICE TOULSON: Of course, someone has given leave to appeal --
MR PATEL: In those four cases there is leave to appeal, by the Court of Appeal in three and by the Tribunal in one. These are cases which go directly from the Tribunal to the Court of Appeal.
MR JUSTICE TOULSON: If the parties are content to approach the matter jointly on that basis, I will give permission to appeal on the basis that the parties tell me that there are other appeals which raise essentially the same legal issues and on which the Court of Appeal has already given leave to appeal.
For the parties' information, the note I have made for the Court of Appeal is this: I was told by counsel for the claimant and the Secretary of State that there were four other cases which raise issues of law essentially the same as or very similar to the issues in this case and in which permission has been given to appeal to the Court of Appeal, in three case by the Court of Appeal itself. In those circumstances, it seems appropriate to give leave to appeal.
MR PATEL: My Lord, could I ask for the usual costs order against a publicly-funded claimant. I do not know what it is, but in the circumstances I do not think it can be opposed.
MR JUSTICE TOULSON: Yes.
MS SERGIDES: My Lord, it is not opposed. I would simply ask for the usual public funding.
MR JUSTICE TOULSON: Certainly. You do not have a certificate apparently.
MS SERGIDES: Here is the certificate.
MR JUSTICE TOULSON: Any other matters?
MR PATEL: My Lord, no.
MR JUSTICE TOULSON: Thank you very much