England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		23 January 2004

MR JUSTICE SULLIVAN:


1. This is a very ancient application for judicial review (permission to apply for judicial review was given as long ago as 2nd October 2002). The decision under challenge is a decision of the Immigration Appeal Tribunal which was notified on 5th April 2002. The Tribunal refused to grant leave to appeal against a decision of an Adjudicator, Mrs Lloyd, which was sent out on 28th February 2002, after a hearing on 31st January 2002.
2. The claimant is a citizen of Iraq. His case was that he was a supporter and member of the PUK in Northern Iraq. He had a friend called Yasin, who moved from the Islamic Movement to the PUK and brought with him information and weapons from the IMIK. Yasin was killed apparently by Islamic Movement personnel. Two attacks were made upon the appellant in January 2001. He was kidnapped from his home and taken to the Islamic Movement headquarters. He was released because his mother happened to be present in the building and notified the PUK. Following an armed stand-off outside the IMIK headquarters the claimant was released. He went home. The PUK put a guard on his home for the rest of that night. A few days later, when he went out in a taxi with his cousin, they were shot at. His cousin was injured.
3. The Adjudicator accepted that account given by the claimant, but she did not accept that the PUK could not and would not protect him. In her determination she said, amongst other things:

"It is not credible to me that the PUK would not offer protection to a longstanding member like the Appellant, indeed someone who had recently recruited an activist from another party ...

It is not realistic to expect a 24 hour guard nor absolute protection. However, the objective evidence indicates that the PUK are the de facto authorities in the area they control and that they operate the usual functions of government in those areas, (CIPU Report at paragraph 4(9) - 'the Kurdish regions (both under the KDP and PUK) both have a system of justice, based on Iraqi legislation, with police who enforce public order').

Whilst I accept that the Appellant is frightened that the members of the Islamic Movement are angry with him for his perceived role in securing the defection of their member and want to harm or even kill him for this reason (although it is worthy of note that they did not kill him even when they had him in their possession), I am not satisfied that the government authorities are either unable or unwilling to offer protection. Notwithstanding the at times turbulent political situation in Northern Iraq in recent years, I find there is objective evidence of a functioning law enforcement system. I find that the Appellant's own evidence indicated that the PUK authorities have provided protection in the past and by inference, given their past conduct, would provide protection in the future if he returned.

Given this protection, I am not satisfied that there is a real risk either under the UN Convention or under the ECHR that this appellant has a well founded fear of persecution for a Convention reason nor would he suffer any breach of his rights under Human Rights legislation, in particular Articles 2 and 3, if returned to Northern Iraq."

So the Adjudicator dismissed the appeal.

4. The grounds of appeal to the Tribunal criticised in detail the manner in which the Adjudicator had dealt with the factual aspects of the protection issue. But it was also contended that there was no State protection available to the claimant in Iraq, and that the PUK were, in any event, not a lawful authority or body to which the powers and functions of the State, including the function of protection, had been transferred.
5. It was argued in the grounds of appeal that the decision of Dyson J (as he then was) in the case of R v Vallaj could be distinguished. In responding to those grounds of appeal, the Tribunal said:

"The issue of whether or not the PUK authorities are able to offer adequate protection was a matter for the Adjudicator to assess on the evidence before her. The authorities in the PUK exercise a de facto control over part of the KAA (Kurdish autonomous area) and it is a question of fact in the circumstances of each individual case whether an applicant can have recourse to that protection. Taking into account the applicant's support for the PUK and his evidence that the PUK obtained his release from his kidnappers, the Adjudicator was entitled to find that the PUK would be both willing and able to provide protection for the applicant."

So the Tribunal concluded that the grounds did not disclose any real prospect of success.

6. Following the Tribunal's decision, the Court of Appeal, in the case of Gardi, had to consider the case of an appellant who was an Iraqi Kurd who lived in the northern part of Iraq within the Kurdish autonomous region (KAR). He claimed that he was at risk from the KDP (the Kurdistan Democratic Party) because he was a supporter of the PUK. The Court of Appeal concluded that the appellant failed to pass the fear test, but it went on to consider whether or not the protection test had been met. In paragraph 37 of his judgment, Keene LJ said:

"The reference in Article 1A(2) is to an asylum seeker being unable or unwilling to avail himself 'of the protection of that country', a reference to the earlier phrase 'the country of his nationality'. That does seem to imply that the protection has to be that of an entity which is capable of granting nationality to a person in a form recognised internationally. That indeed was a point made in the Tjhi Kwet Koe case at page 11. The KAR does not meet that criterion. I see force also in the point made by Hathaway and Foster in their paper at page 46, that protection can only be provided by an entity capable of being held responsible under international law. The decision in Vallaj is not inconsistent with that proposition, since the UNMIK regime in Kosovo had the authority of the United Nations plus the consent of the Federal Republic of Yugoslavia. Yet no-one suggests that the KAR or any part of it is such an entity under international law."

Pausing there, it would appear at first blush, in the light of that decision, which is dated 24th May 2002 (just a few months after the Tribunal's decision) that the Tribunal was, to put it at its lowest, in error in concluding that an appeal did not have any real prospect of success.

7. Unfortunately, it was subsequently discovered that the Court of Appeal had laboured in vain because it had, without jurisdiction, been considering a case which had originated in Scotland. However, a similar issue was considered by the Scottish Court of Session in the case of Saber v Secretary of State for the Home Department (dated 13th November 2003). The Court of Session considered the protection argument, and having referred to the Vallaj case and to the Tjhi Kwet Koe case, expressly agreed with, and adopted, the conclusions of the Court of Appeal in paragraph 37 of the Gardi judgment.
8. It is common knowledge that circumstances in Iraq have changed radically since they were considered by the Adjudicator nearly two years ago. Thus it is plain that on any basis the claimant's case will have to be reconsidered in the light of the situation in Iraq as it now exists.
9. On behalf of the Secretary of State, Mr Tam argues that the application should be refused for three reasons: firstly, he says that the application has now become academic in view of the radical change of circumstances in Iraq. He accepts that the Secretary of State will have to consider those changed circumstances. He submits that the proper course is to dismiss this application and leave the claimant to make a claim to the Secretary of State. The Secretary of State will then consider whether the new material amounts to a fresh claim. If he considers it is a fresh claim, then his decision on that claim can be the subject of an appeal to an adjudicator. If the Secretary of State considers that the material provided by the claimant relating to the new circumstances in Iraq does not amount to a fresh claim, then that decision would be subject to judicial review.
10. I accept that any decision by the Secretary of State that the changed circumstances do not result in there being a fresh claim, could be the subject of an application for permission to apply for judicial review. But I do not see why the claimant should be deprived of direct access to an independent tribunal, the IAT, if he is able to establish that there was an error of law on the part of the Tribunal.
11. Mr Gill, who appeared on behalf of the claimant, submitted, with commendable brevity, that in the light of the Gardi and Saber decisions, the Tribunal plainly was in error in concluding that an appeal would have no real prospect of success. I agree with that submission. If the Secretary of State had been prepared to give an assurance that any further claim by the claimant would be treated as a fresh claim, thus triggering a right of appeal to an adjudicator, then I might well have been prepared to accept the submission that it was unnecessary to grant relief in the present case. But since the Secretary of State is not prepared to give that assurance, I do not consider that it would be appropriate to deprive the claimant of the opportunities of having his appeal considered by an independent tribunal. The tribunal will be able to consider the up-to-date circumstances as they now are in Northern Iraq.
12. Mr Tam further sought to persuade me that this application should be refused because the Court of Appeal decision in Gardi was not binding upon me and was, in any event, plainly wrong. By reference to the CIPU material relating to Northern Iraq, he sought to persuade me that the reality was that in the KAR there were two autonomous local governments: the PUK and the KDP, which although they were not set up by the former regime under Saddam Hussain were at least acquiesced in by that regime. He submitted that to ignore the realities on the ground was an unnecessary over complication. He relied in particular upon the decision of Dyson J in Vallaj which was approved by the Court of Appeal.
13. That case was concerned with the UNMIK authority in Kosovo. It was argued on behalf of the Secretary of State that protection by UNMIK did fall within Article 1A(2) for any one of three reasons: (a) that UNMIK was the entity which had the obligation in international law within Kosovo to provide the protection envisaged by the Convention; (b) that the Federal Republic of Yugoslavia had consented to UNMIK providing protection to its nationals against persecution in Kosovo; and (c) that UNMIK did, as a matter of fact, provide that protection and it was irrelevant whether the Federal Republic of Yugoslavia had consented to that or not.
14. In paragraphs 29 and 35 of his judgment, Dyson J accepted the first and second submissions advanced on behalf of the Secretary of State. In paragraph 36 he doubted whether there was any real difference between the first and the third submission, saying:

"... it is difficult to imagine circumstances in which the requisite degree of protection can be provided except by or on behalf of (a) the country of nationality or (b) a body (such as UNMIK) to which the duty of protection has been transferred both as a matter of fact and of international law. I prefer Mr Catchpole's [counsel for the Secretary of State] first submission, although I see the force of his third.

The difficulty with that submission is that it is plain that the decision in Vallaj was considered not merely by the Court of Appeal in Gardi but also by the Court of Session in Saber.

15. Mr Tam also referred to the Tjhi Kwet Koe case. In that judgment, Tamberlin J said that a broad purposive approach should be given to the expression "country" in Article 1A of the Convention. Mr Tam submits that the passage of Tamberlin J's judgment relied upon by the Court of Appeal in Vallaj was obiter and, in any event, in error.
16. The argument is indeed an interesting one, but I have to stand back and see whether the Tribunal could reasonably have concluded that the appeal did not have a real prospect of success. It is plain beyond any doubt that there was such prospects, given the views of the Court of Appeal in Gardi as endorsed by the Court of Session in Saber.
17. I accept that these authorities are not binding upon me, but they are highly persuasive, and notwithstanding Mr Tam's able submissions, I am not persuaded that they are plainly wrong. That would be the only circumstance in which I would be justified in stepping into the shoes of the Tribunal and concluding that, notwithstanding those decisions of the Court of Appeal and the Court of Session, an appeal from an Adjudicator would have stood no real prospect of success.
18. The last point raised by Mr Tam was that if one looked at the facts rather than the law, there was a prior question before one even got to the issue that was dealt with in Vallaj, that is to say whether, as a matter of fact, the protection actually available to the claimant reduced the risk to such a level that there was no real risk of severe ill-treatment for the purposes of the Conventions? He submitted that if one looked at the Adjudicator's factual conclusions, as to what the PUK would do for the claimant, she was entitled to conclude, "I am not satisfied there is a real risk either under the UN Convention or under the ECHR that this appellant has a well founded fear of persecution."
19. Mr Tam submitted that for this purpose it matters not who is available to provide protection, it might be that a wealthy person would be able to hire his or her own body guard; it might be that protection would come from another quarter. But if, at the end of the day, the risk was so reduced that it could not be said that there was a real risk of persecution, it was of no consequence that the protection did not come from the State authority. The Adjudicator in this case was not saying that there was systemic protection within Northern Iraq. She was focusing upon the particular protection that would be available to this particular claimant.
20. The problem with that submission is that the protection available from the PUK for this claimant appears to have been, at least arguably, very much bound up in the Adjudicator's mind with the fact that the PUK was (what she described as) the "de facto authority" in the area it controlled, and that it operated the "usual functions of government" in that area.
21. Mr Gill submits that such a generalised statement was inadequate. There was no analysis of how effective that governance was. He points out that this is not a case where that issue is a matter of academic interest. This is a case where the claimant has had his best friend killed, his cousin has been injured, he has been kidnapped and only fortuitously released following a gun battle, and he has then been shot at. Thus it is important to relate the degree of risk to the actual competence of the PUK to provide protection, even if one does simply focus upon the facts. On the Adjudicator's approach the extent of the protection that would be afforded by the PUK was limited with its role as "de facto" authority, and therefore with the issue raised in Gardi.
22. For these reasons, I am satisfied that the Tribunal erred in including that an appeal from the Adjudicator would not have a real prospect of success. I am further satisfied that this is not a case where the outcome of such an appeal can be predicted with such certainty in the light of the subsequent authorities that it would be right for this court to try to step into the shoes of the Tribunal. As I have indicated, it is agreed on all hands that someone is going to have to consider the implications of the very changed circumstances in Iraq for this claimant. The Tribunal is much better equipped to do that than I.
23. For these reasons, this application is allowed.
24. MR GILL: My Lord, apart from an order quashing the Tribunal's determination, I do not believe I need anything else other than that because they will deal with it in any event.
25. MR JUSTICE SULLIVAN: Yes, they will make their own directions about what they want done.
26. MR GILL: I simply ask for costs and public funding assessment of the applicant's costs.
27. MR JUSTICE SULLIVAN: Can you resist those, Mr Tam?
28. MR TAM: I think I have instructions not to in these circumstances. So, no, I do not. I do have an application to make though, which is for permission to appeal. This is a case which does raise the Gardi point. There is no definitive English authority on it after the forensic accident of that case itself, which I have to say, your Lordship will see, I am a party to and do take responsibility for.
29. MR JUSTICE SULLIVAN: I did not even notice. I am so sorry.
30. MR TAM: For your Lordship's entertainment, under tab 2, the following "desert air" observation that Ward LJ made, and there were some other observations that we are all to blame but notably counsel. But, at any rate, there will at some stage have to be consideration of that by the Court of Appeal in a case in which it is not simply an obiter point, as it was in Gardi, and would have been even without the jurisdiction problem. We respectfully say that this is as good a case as any to raise the point. So we ask for permission.
31. MR JUSTICE SULLIVAN: What do you want to say about that, Mr Gill?
32. MR GILL: My Lord, I formally object, but that is about it.
33. MR JUSTICE SULLIVAN: Yes, I understand entirely. Thank you very much. The application is allowed. The Tribunal's decision is quashed and the matter is remitted to the Tribunal. The Secretary of State is to pay the claimant's costs to go for detailed assessment if not agreed. I am satisfied that permission to appeal should be granted, whether or not there is a real prospect of success. It does seem to me that there is another compelling reason in that the Gardi point is obviously one of wider significance. It is desirable that it is sorted out preferably by a case that does originate in this jurisdiction. So I give you permission, Mr Tam. There is nothing else? You do not need an assessment for legal aid purposes, because I have said detailed assessment in any event, or do you need a separate assessment. (Associate consulted Judge) Yes, you have an assessment for public funding purposes. Thank you both very much.