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
		15 September 2017

SIR ROSS CRANSTON:

Introduction

1. This is a hearing of an application where the claimant seeks to challenge the decision of the Secretary of State for the Home Department ("the Secretary of State") dated 2 May 2017. The Secretary of State rejected the claimant's representations that a deportation order would expose him to the risk of harm and be a disproportionate interference with his rights under Art.8 of the European Convention on Human Rights ("ECHR" or "the Convention"), the Secretary of State not accepting that his representations amounted to a fresh claim.

Background

2. The claimant is an Iraqi national, a Kurd. He arrived in this country clandestinely on 9 October 2004 by concealing himself in a lorry from France. He made a claim for asylum the same day, but that was refused. He appealed and the matter came before an adjudicator sitting in what was then the Immigration Appellate Authority. Neither the claimant nor the Secretary of State was represented. The claimant's asylum claim was that he, his father and his uncle were members of the Ba'ath Party and, with the overthrow of Saddam Hussein, he faced a threat of persecution.
3. Adjudicator Suchak refused the appeal on 14 January 2005 as wholly without merit, adding that he did not place any reliance on the claimant's explanation that he left Iraq for a Convention reason.
4. The claimant failed to report on six occasions when he was obliged to do so in 2006, and was consequently treated as an absconder. Indeed, he left for France but was encountered there by the authorities. He returned to the UK in late 2007. At some point in 2008 he requested voluntary return to Iraq, but later withdrew that request. In 2009 he again failed to report as required on six occasions and was treated as an absconder.
5. Then in February 2010, the claimant was granted indefinite leave to remain. Apparently this was a decision outside the Immigration Rules under the so-called legacy programme, which was designed to deal with the large backlog of those who had made asylum claims and had been in the UK for a substantial period.
6. A year later, on 9 February 2011, the claimant was convicted of robbery and in April was sentenced to 3 years' imprisonment. He did not appeal conviction, but ultimately in February 2015, after a reference to the Criminal Cases Review Commission('CCRC'), the conviction was quashed (R v Amin [2015] EWCA Crim 174). The Court of Appeal held that the conviction was unsafe. The conviction was based on identification evidence. In summary, there were photographs following the claimant's arrest for other matters which had not been pursued but which were not used in the index case. That cast doubt on his identification in the robbery (see paras.14 to 17 of the Court of Appeal's judgment).
7. Because of the conviction, on 3 June 2011 the claimant was served with a notice of intention of liability to deportation. By August 2012 the claimant's custodial sentence had been served and he was detained in immigration detention. Earlier in 2013, the Secretary of State issued a notice of decision to make a deportation order and a liability for deportation letter. The claimant appealed. In June 2013 the matter came before First-tier Tribunal Judge Nicholls and Dr Ravenscroft. The claimant was not present or represented, but the Secretary of State's presenting officer informed the Tribunal - commendably, it must be said - that the Secretary of State's decision to make a deportation order was technically defective. On that basis, the Tribunal allowed the appeal. The claimant was released from detention.
8. The Secretary of State then sought to deport the claimant again, and on 28 August 2013 issued a new order to deport. The claimant's deportation, the order said, was conducive to the public good pursuant to s.32(5) of the UK Borders Act 2007.
9. On 1 October 2013, the claimant appealed to the First-tier Tribunal. There were various delays because the Tribunal wished to know of progress in the claimant's case before the Criminal Cases Review Commission. When the matter eventually came on for hearing before First-tier Tribunal Judge Landes on 19 January 2015 the claimant was not present or represented. On 4 February 2015, First-tier Tribunal Judge Landes promulgated a decision dismissing the claimant's appeal. In his reasons, the judge rejected the asylum claim. It seemed, the judge said, that only Ba'athists who abused their position were targeted for reprisals and the claimant did not fall into that category.
10. As for the protection claim, the judge referred to the country guidance case, MK (documents - relocation) Iraq CG [2012] UKUT 00126 and said this:

"41. Current country guidance case law [...] indicates that relocation to Baghdad is generally reasonable. There is a significant Kurdish population in Baghdad and the appellant would not be at risk in Baghdad purely because of his ethnicity. I have no evidence as I have indicated above to indicate that he would be at particular risk because of his health or other personal reasons."

11. As regards Art.8 ECHR, the judge noted that the sentencing judge had referred to the claimant having a wife in the UK, but subsequently the claimant had said that he was no longer married. The judge said at para.44 that there was no evidence of a genuine and subsisting relationship with a child under para.399(a) of the Immigration Rules. Any claim with respect to private life also failed. That the claimant might not have family ties in Iraq did not make deportation disproportionate.
12. The claimant appealed the decision on the basis that he had not been informed of the hearing by his solicitors, but permissions to appeal was refused on the basis that this was not a ground with merit and not a point of law.
13. On 3 August 2015 at Peterborough Crown Court the claimant was convicted of two drugs offences committed on 9 January that year. The first was possession with intent to supply a Class B controlled drug (cannabis) and the second was being concerned in the supply of a Class B controlled drug. He was sentenced to 15 months' imprisonment. Forfeiture and destruction orders were made as regards the drugs, drugs paraphernalia, diaries and mobile telephones. There was a victim surcharge order, a recommendation for deportation and a confiscation order for £3,700 with 12 months to be served in default of payment.
14. While in prison, the claimant applied in October 2015 for voluntary removal to Iraq under the facilitated returns scheme, but in March the following year he withdrew the application.
15. The claimant was served with notice of a decision to deport and a one-stop notice on the basis of the drugs conviction on 11 May 2016. That notice recognised that the claimant's conviction for the robbery had been quashed but that he had the 2015 drugs conviction. It also acknowledged that the claimant had ILR granted in 2010. There was no right to appeal against the notice under s.82 of the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014. Internal Home Office notes record that the official who drafted the notice regarded the previous deportation order as null and void.
16. During the time the claimant was in prison, there are internal records that he was being visited by a new partner and baby daughter. However, in May 2016 the notes record that the claimant refused to see the partner, leaving the record maker to comment that it gave weight to the argument that a DNA test should be conducted. (It never was.) There are also Home Office records of the claimant's self-harming and attempted suicide.
17. On 15 June 2016 the Secretary of State signed a deportation order. At the end of that month, the claimant was released on temporary admission from his custodial sentence with an obligation to report regularly. He was released from prison to an address of the girlfriend, who the record stated was Lithuanian with poor English. When reporting on 27 March 2017 the claimant was detained. Early the next month he was interviewed by Iraqi officials and the same day they agreed to issue him with a travel document. On 19 April 2017 the claimant told the Home Office officials that he wished to return to Iraq voluntarily, but he later refused to confirm this in writing.
18. On 26 April 2017 the Secretary of State set removal directions for the claimant's deportation in early May to Baghdad via Istanbul. The next day, 27 April, the claimant sent a short letter requesting that he not be returned to Iraq. Iraq, he said, was not safe. He did not have family there. He had a 22-month-old child in the UK and he could not imagine leaving her behind. He had been on medication for many years and, although he had been jailed in 2010, the conviction had been quashed.
19. On 28 April 2017 there was a r.35 report under the Detention Centre Rules 2001. That concerned scarring on the claimant's back, which he explained to the medical staff was because his uncle had beaten him regularly as a child. The report added that the claimant stated that he had mental health issues and that he would be referred to the mental health team.
20. The Secretary of State treated the claimant's letter of 2 April as raising further representations. On 2 May 2017 she replied to them at length. This is the decision challenged in this judicial review. After outlining the background and the appeal decisions of First-tier Tribunal Judge Landes of February 2015, the Secretary of State turned to the claimant's point that Iraq was not safe to travel back to and he had no family there. The Secretary of State noted that the country guidance for Iraq had changed with the decision AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC). Moreover, the letter added, there was also Country Policy and Information Note: Iraq, May 2017. The Secretary of State's letter quoted from both these and rejected the claimant's submission that Iraq was unsafe.
21. The letter stated at para.16 that there was nothing new in the submission vis-à-vis the risk of return in relation to someone having links with the Ba'ath Party. At para.16 the Secretary of State turned to the claimant's statement that Iraq was not safe. She said that she rejected that in line with previous appeal findings, the judgment in AA and latest available country evidence:

"17. The findings available to the Secretary of State do not support the position that the security situation throughout Iraq is such that it can be said that you would be at risk merely by being present there.

18. It is accepted that Kirkuk was formerly under the control of ISIS and was considered to be a contested area. It was previously accepted that the security situation in Kirkuk would put you at risk of serious harm. However, the latest evidence clearly demonstrates that this is no longer the case. You have provided nothing further on this point. Having reviewed this in the round, it is not therefore accepted that this would have a realistic prospect of success before an immigration judge. No reasonable cause has been given to accept you would be at real risk of indiscriminate violence merely by being present in Kirkuk.

19. In any respect, it was previously held that Baghdad was safe and that you could return there. There is nothing in the subject caselaw or available country evidence that would challenge this finding. As such, it is not therefore considered that relocation to Baghdad is unreasonable in the circumstances."

22. The letter then stated that consideration would be given to the country guidance case of AA. The claimant had been issued with a laissez-passer, and that consideration had been given to the availability of a Civil Status Identity Document ("CSID"). There was no evidence to suggest that the claimant had any identity document but it was considered that, since the Iraqi authorities had agreed to issue him with the travel document, that would be sufficient evidence of identity. The letter then continued:

"22. That aside, even if it were not the case, it is considered that you could still obtain such documentation from Kirkuk's Civil Service Affairs Office. As above, it is noted that Kirkuk is no longer contested or under the control of non-state actors. It is not considered that you would be at risk in returning there. It is considered on the information to hand and as observed in para.12 of AA, there is nothing to suggest that you could not obtain a CSID from Kirkuk's Civil Service Affairs Office. It would appear that given the Iraqi authorities willingness to issue a travel document, there is reasonable cause to accept that they would be willing to issue you an identity document should you ask for it."

23. The letter then, under the heading "Article 3 Medical", observed that the issue of the claimant's health had not been raised at the appeal hearing before First-tier Tribunal Judge Landes.
24. Turning to Art.8, the letter then considered the point the claimant had raised about the child. It stated that the issue of the claimant's Art.8 rights had been considered previously. It was clear that there was no evidence before the Tribunal of a child, so that that aspect of the submissions would appear to be new, never having previously been considered. However, the Secretary of State added, the claimant had provided no details as to the daughter's identity and no evidence or information on which any enquiries could be made. There was no evidence of paternity by way of a birth certificate. There was no corroboration as to the claimant's role in the daughter's life or how potential separation could be deemed to be unduly harsh. There was nothing on the available submissions to displace the previous appeal findings in regard to Art.8. Later, the letter stated that all the claimant's submissions vis-à-vis Art.8 had been considered previously and the new submissions were not significantly different and therefore did not amount to a fresh claim.
25. The day after this decision letter, 3 May 2017, the Secretary of State responded to the claimant's r.35 report. She accepted that his ill-treatment did meet the definition of torture and accordingly the claimant was an adult at risk, but that continued detention was justified.
26. The claimant was taken to the airport with a view to removal on 3 May 2017. Because of his disruptive behaviour, the pilot refused to have him as a passenger.
27. On 10 May 2017 the claimant wrote to the Secretary of State giving further details of the daughter, naming her and giving the date of birth. He also stated that he had been on medication for mental health issues. He added that he had been badly injured by officers when taken to the airport on 3 May.
28. On 10 May, the Secretary of State responded to that letter as regards Art.8. She said in relation to the additional information about the child that consideration had been given to the point. She noted that the claimant had not provided any evidence of the paternity or involvement with the child. There was no indication that he was aware of her current address, and for those reasons that was not considered to be new evidence. It could not reasonably be said that the claimant had made a clear case as to a genuine and subsisting relationship for the purposes of para.399(a) of the Immigration Rules. It was her position that it could not reasonably be said that in this respect the claimant's submissions would have a realistic prospect of success before any immigration judge.
29. There was a notice of deportation arrangements dated 18 May for the claimant's removal to Baghdad on a flight to take place on 26 May. For reasons which are now accepted to be a mistake, on 23 May the Secretary of State put in place deportation arrangements for the claimant's return to Erbil, the capital of the Kurdistan region in Iraq, not to take place before 26 May 2017.
30. The claimant's new solicitors sent a pre-action protocol letter on 25 May 2017. This letter gave further information about the child. These judicial review proceedings were issued the same day. In the light of that, the removal directions were cancelled. At the end of the month, the claimant requested temporary admission, but that was refused in early June. A renewed request for temporary admission was also refused the following month, early July.
31. On 18 July, the claimant applied for bail. First-tier Tribunal Judge EB Grant refused that application. He said that it was abundantly clear that the claimant was not willing to co-operate to the extent that he had been removed from a recently arranged flight; the torture aspect of the claim had to be considered in the light of the claimant's own statement that that was because he had been abused by his uncle; he, the judge, was satisfied that the applicant's healthcare needs were being met in detention; the claimant had not only signed a disclaimer but had been interviewed by the officials; and he was satisfied, given the claimant's lack of co-operation, that there were substantial grounds for believing that he would abscond.

Legal and policy framework

32. Section 32 of the UK Borders Act 2007 concerns automatic deportation of certain 'foreign criminals'. The claimant is a foreign criminal under the Act as a person sentenced to a period of imprisonment of at least 12 months. Section 33 of the Act concerns exceptions to automatic deportation. Section 33(2) provides as follows:

"Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach–

(a) a person's Convention rights, or

(b) the United Kingdom's obligations under the Refugee Convention."

33. Sections 117A to 117C of the Nationality, Immigration and Asylum Act 2002 concern where a court or a tribunal is required to make a determination whether a decision made under the Immigration Acts would breach a person's rights under Art.8 of the ECHR. Section 117A(2)(b) provides that the court or tribunal must have regard in the case of foreign criminals to the considerations set out in s.117C. Section 117C is as follows:

"117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal ('C') who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where–

(a) C has been lawfully resident in the United Kingdom for most of C's life

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

34. There are specific rules in the Immigration Rules relating to the deportation of foreign criminals. In particular, where a person has been sentenced to less than 4 years but has been sentenced to at least 12 months' imprisonment, para.399 applies. That requires the issue to be considered whether the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and whether the child is a British citizen or the child has lived in the UK continuously for at least 7 years immediately preceding the date of the immigration decision; and, in either case, whether it would be unduly harsh for the child to live in the country to which the person is to be deported and it would be unduly harsh for the child to remain in the UK without the person who is to be deported.
35. Fresh claims are dealt with in para.353 of the Immigration Rules. It reads as follows:

"353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas."

36. The case law on para.353 is well known. The test for reviewing the Secretary of State's decision under para.353 is the Wednesbury test. In WM (DRC) v Secretary of State for the Home Department [2016] EWCA Civ 1495, Buxton LJ, with whom Jonathan Parker and Moore-Bick LJJ agreed, said this at para.11:

"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see ß7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

37. WM has been considered in a number of subsequent decisions, including AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 and MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.
38. The upshot of the jurisprudence is that in relation to claims concerning para.353, the court has to consider (1) whether the Secretary of State has asked herself the correct question and (2) whether the Secretary of State's view was rational, viz., that further submissions taken together with the previously considered material did not create a realistic prospect of the claimant succeeding before an immigration judge, bearing in mind the need to exercise anxious scrutiny.
39. Country guidance case law relevant to the present decision is contained in AA, which I have already mentioned. The headnote to AA contains a Section C, "Position on documentation where return is feasible". That provides at para.11 that where a person's return to Iraq is found by the tribunal to be feasible, it will generally be necessary to decide whether that person has a Civil Status Identity Document ('CSID') or will be able to obtain one reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access a range of benefits. The headnote reads that, if the person shows that there is no family or other members likely to be able to provide means of support, then the person is generally likely to face a real risk of destitution amounting to serious harm if by the time any funds provided by the Secretary of State or her agents to assist return have been exhausted it is reasonably likely that the person will still have no CSID. Where return is feasible but the person does not have a CSID:

"12. P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.

13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Art.15(c) serious harm is occurring. [...] There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear."

40. The headnote continues with a section D entitled "Internal relocation within Iraq (other than the Iraqi Kurdish region)":

"14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.

15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:

(a) whether P has a CSID or will be able to obtain one (see Part C above);

(b) whether P can speak Arabic (those who cannot are less likely to find employment);

(c) whether P has family members or friends in Baghdad able to accommodate him;

(d) whether P is a lone female (women face greater difficulties than men in finding employment);

(e) whether P can find a sponsor to access a hotel room or rent accommodation;

(f) whether P is from a minority community;

(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs."

41. In 2017, the Upper Tribunal (Immigration Asylum Chamber) gave further country guidance: BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC). This stated that the level of general violence in Baghdad city remains significant but the current evidence did not justify a departure from the conclusion in AA. The Upper Tribunal stated that kidnapping was a significant and persistent problem and said this:

"Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone."

42. The Tribunal then turned to sectarian violence:

"The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.

[...] Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Art.15(c) of the Qualification Directive or Art.3 of the ECHR if assessed on a cumulative basis."

43. Finally, there is Home Office guidance. The August 2016 guidance "Iraq: Return/internal relocation" stated at para.2.4.18 that, due to the circumstances of armed conflict in the contested areas, it might not be reasonable to expect a person to use a proxy to reacquire documents from their place of origin. It was also not known as to whether registration records held in the contested areas were in tact or accessible.
44. The Country Policy and Information Note "Iraq: security and humanitarian situation" March 2017 states at para.2.3.21:

"However, the security situation has changed since April 2015, the point up to which AA considered evidence. Daesh has suffered, and continues to suffer, significant territorial losses. Daesh now only control:

parts of Mosul and the surrounding areas;

Tal Afar and surrounding areas in northern Ninewah;

Hawija and surrounding areas in Kirkuk governorate; and

parts of west Anbar."

Ground 4

45. For the claimant, Mr Jones began with ground 4, that the Secretary of State's approach to Art.8 was legally flawed. He contended that the Secretary of State was obliged before taking deportation action to have regard to the position of the child to which the claimant had referred in his letter of 27 April 2017. In his submission, the Secretary of State had to enquire into the quality of the claimant's relationship with that child so as to enable her properly to apprise whether the exception in r.399(a) of the Immigration Rules might operate so as to preclude deportation.
46. Mr Jones submitted that para.59 of R (on the application of MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705 identified a duty to enquire. In his submission, there were obvious obstacles to the claimant himself advancing his case: when he was detained he had mental health problems and he was unrepresented. Mr Jones referred to the internal Home Office records, which I mentioned earlier in the judgment, that there was a partner and a child and that they had visited the claimant when he was in prison. Mr Jones submitted that the Secretary of State could not contend that there was no realistic prospect of the claimant persuading another immigration judge that the exception in para.399 was operative without having made those enquiries.
47. In my view, the difficulty with these submissions is that there is no legal basis in the fresh claim context for the duty to enquire which Mr Jones advances, notwithstanding the Secretary of State's duty under s.55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children in asylum and immigration decision-making. Paragraph 353 of the Immigration Rules, dealing with fresh claims, refers to the decision maker considering "any further submissions" which a person makes and whether they are significantly different from the material previously considered.
48. In my view, that language cannot be construed as imposing a duty to enquire, certainly not a duty to trawl through what may the very significant volume of running notes the Home Office has accumulated from day to day about those who have made asylum and immigration claims and are detained. The passage in MA (Pakistan) to which Mr Jones referred relates to a quite different context from the situation of the Secretary of State considering a fresh claim, and in any event the duty there was expressed as arising "very exceptionally". If it did apply here, this could not be said to be a very exceptional case, notwithstanding the disadvantages which Mr Jones highlighted for the claimant faced in advancing his case.
49. What the Secretary of State was told as part of the claimant's fresh representations on 27 April was that he had a 22-month-old child and could not imagine leaving her. On 10 May he added her name and date of birth. However, at no point up to the present day has the claimant provided any evidence such as a birth certificate, details of the child's position and any parental relationship that he might have with her. Since the internal Home Office records on which Mr Jones relied for his duty to enquire referred to the mother as being Lithuanian, it is no surprise that there is no claim that the child is British.
50. I accept the Secretary of State's submission that, in the absence of any evidence, the claimant failed to meet the requirements of para.399 of the Immigration Rules. I also accept the Secretary of State's submission the Secretary of State did consider whether the claimant had established a family life in this country. I also accept the Secretary of State's submission that in any event it would be impossible for the claimant to meet the 'unduly harsh' stipulation under the Immigration Rules which faces any foreign criminal claiming that Article 8 prevents his deportation because of the impact on a child remaining in the UK without him.

Ground 1

51. This ground contends that the Secretary of State could not rely on the First-tier Tribunal's decision in 2015 because the deportation decision that was the subject of that appeal was taken without jurisdiction. In short, Mr Jones's submission was that the Secretary of State had relied on that decision when disposing of the fresh claim. However, once the robbery conviction had been quashed, the basis for the deportation order disappeared and the Tribunal decision on the back of it was also dissolved. The fact that the claimant had been subsequently convicted of the drugs offences could not resurrect that defunct deportation exercise. Because the Tribunal decision was null and void, the argument continued, there was no basis for a fresh claim.
52. Mr Jones also highlighted the statement of Upper Tribunal Judge Landes that there was no question of the claimant being removed until the conclusion of the CCRC application and only in the event that it was not successful. It had been successful, submitted Mr Jones, but the Secretary of State nowhere undertook a review of the enforcement exercise in the light of it. Mr Jones also underlined the internal Home Office notes that the previous exercise was null and void. Moreover, he added, the public interest considerations before Upper Tribunal Judge Landes were necessarily different from those arising in respect of the drugs conviction given the disparity in the seriousness of the offending.
53. In my view, Mr Jones's submission about First-tier Tribunal Judge Landes's determination being null and void with the consequences he outlined fall at the first hurdle. It is a basic principle of our jurisprudence that until challenged and set aside, any order of the court or tribunal remains effective even if there was no power to make it: see, for example, Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 at para.54. Even if the Tribunal lacked jurisdiction - and I cannot see that it did in the absence of any challenge to the 2013 deportation order - no effective in-time challenge has been made to the Tribunal's decision. It stands and cannot be challenged at this late stage.
54. The Secretary of State was obliged to take its findings into account and to treat them as the starting point of her reasoning, in accordance with the guidance given in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 000702. The basal fact is that despite the robbery conviction being quashed the claimant was a foreign criminal as a result of the drugs conviction in September 2015. The public interest considerations in deportation were therefore the same as those arising before Upper Tribunal Judge Landes. The Secretary of State was entitled to serve the deportation decision and the notice to which I have referred. That was a lawful decision.

Ground 3

55. Ground 3 concerns the removal direction to Erbil. The Secretary of State concedes that not only was it a mistake but it was contrary to the Secretary of State's own policy recorded and approved in AA at para.150, viz., that returns to Iraqi Kurdistan should take place on EU letters; that persons not originally from there should not be returned there even if Kurds; and that returns there have to be pre-cleared with the Iraqi Kurdistan authorities. However, the simple fact in this case is that, although returning the claimant to Erbil would have been contrary to policy and unlawful, the issue is now academic because those removal directions are no longer extant.

Ground 2

56. Here, the challenge is that the Secretary of State was in error in her approach to the country guidance cases, in particular AA. Mr Jones based his submissions in this regard on the facts which have not been gainsaid by the Secretary of State - that the claimant is Kurdish and of the Sunni faith; that he is a Kurdish Sorani rather than an Arabic speaker; that he and his family originate in Kirkuk; that he has no family ties in Baghdad; that he has never previously resided there; and that he has now been outside of Iraq for more than 12 years. With this background, Mr Jones challenged the removal directions to Baghdad, and in particular the safety and reasonableness of Baghdad as a seat of internal relocation. He also challenged the Secretary of State's disposal of the fresh claim on the basis of her repudiating the findings of AA, in particular in relation to Kirkuk as contested territory.
57. In his letter of 27 April 2017, the claimant had stated that the capital was not safe for him. Mr Jones referred to the passage in AA requiring a case-sensitive appraisal of the safety and reasonableness of relocation by reference to the criteria in para.15 to which I have referred. In his submission, nowhere in the decision letter did the Secretary of State undertake such an assessment. In failing to do so, she rendered her decision perverse by excluding from consideration the same material which an immigration judge was duty-bound to consider. A case-sensitive application of the criteria to the facts founded the case, in his submission, that relocation would be unreasonable.
58. Mr Jones continued that the CSID, contrary to the position advanced by the Secretary of State, would not be readily obtainable on the basis of the laissez-passer. The Secretary of State's assertion in the letter of 2 May that there was nothing to suggest that the claimant could not obtain a CSID from Kirkuk's Civil Affairs Office was contrary to what was stated in AA: that for persons from contested territories such as Kirkuk access to a CSID would be severely hampered. It was unlawful for the Secretary of State to ignore what had been stated in AA given that a First-tier Tribunal judge would be bound to apply it.
59. Further, Mr Jones submitted, the Secretary of State had failed to make reference to the country guidance case of BA, which was a material omission since it enhanced the claimant's contention that return to Baghdad would be unsafe given the threat of kidnapping, given that the appellant was returning having been absent for over 12 years, coupled with his Sunni faith and having no close ties in the capital.
60. Finally, Mr Jones submitted that the Secretary of State failed to take into account the claimant's mental ill-health.
61. Overall, Mr Jones' submission was that if the Secretary of State had considered the issues with the anxious scrutiny required, she would have concluded that there was a realistic prospect of an immigration judging concluding that there was a fresh claim.
62. Earlier, I quoted from para.19 of the Secretary of State's decision letter. I do not regard that paragraph as being in error. AA states that, as a general matter, it is not unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad. BA does identify the threat of kidnapping and of other matters such as sectarian recrimination in Bagdad, but it is obvious from the passages I have earlier in the judgment that these risks are not expressed in absolute terms.
63. As far as the position in Kirkuk is concerned, and the requirement for the claimant to return there to obtain a CSID, the Secretary of State was entitled to take the realities on the ground there into account. Kirkuk is no longer a contested area. In my view, country guidance cases must give way to the realities, a point recognised by the Court of Appeal in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 at para.47. There are apparently still dangers there, but nothing like the position as when AA was decided. That being the case, I cannot regard the passages in the Secretary of State's letter as regards the claimant's ability to obtain a CSID as being flawed.
64. As to the claimant's mental health the evidence was, and is still, lacking. Mental health can have a role in an Article 8 claim, but not in this case.

Conclusion

65. In summary, the Secretary of State's decision - that the further representations were not significantly different from those previously considered, and that taken together with the previous representations would not create a realistic prospect of success before a First-tier Tribunal - was not Wednesbury unreasonable. In other word, in my view the Secretary of State's decision on the claimant's representations in relation to para.353 was lawful and rational.
66. I refuse this application for judicial review.

MR JONES: My Lord, we make an application for leave to appeal your Lordship's judgment, respectfully. For the time being, my Lord, I formulate the grounds on this basis. With regard to your Lordship's treatment of ground 4, your Lordship observed that the s.55 duty with regard to safeguarding and welfare, the duty to investigate that was urged, did not operate or did not appear to operate in the context of fresh claim disposals, the terms of 353 not suggesting that a duty to enquire arose.

Section 55(2) of the requisite legislation states in plain terms that the Secretary of State's functions with regard to safeguarding and welfare operate in relation to immigration asylum and nationality decisions generally. Consequently, we respectfully contend that that duty, the duty to investigate that arises from it, plainly operates in the context of any decision that the Secretary of State is (inaudible). There is authority for the proposition that it operates even beyond decisions on primary issues of risk into judgments about decisions on detention and so forth. So that's our first ground, my Lord.

The second ground relates in particular to your Lordship's treatment of the final issue. I think it is ground 2, my Lord. Again, respectfully, we would contend that two issues arise with regard to your Lordship's treatment of that issue: one, that, again respectfully, the treatment of the issue of the authority of the character of the country guidance in this case with regards to AA is not compatible with the approach that was indicated in the Court of Appeal in Mansoor(?) with regard to the quality of evidence and the quality of scrutiny that an individual would have to advance in order to substantiate an assertion that country guidance had become outdated.

The second point we make with regard to that issue is that your Lordship in respect of BA I think acknowledges, as your Lordship must, that there was no reference whatever to BA in this decision. Your Lordship observed that the guidance given in BA was not given in absolute terms. We respectfully submit for the purposes of a fresh claim that the threshold is so modest, even in the context of a protection claim generally where the threshold is one of real risk, there is no necessity for demonstration of absolutes. So again, we would contend that the failure to properly, to apply anxious scrutiny to the country guidance of BA at all, was a material error of law and consequently we would invite the court to consider granting leave on that basis.

But we would supplement that ground by saying too that to the extent that it is suggested that the particular issues that were material to determining whether it was unduly harsh or whether there were a risk for this individual by reference to AA and BA in Baghdad, a place to which he will be returned, is perceived to be constrained by the limited quality of the information provided by the Secretary of State. I contend that that is an issue of importance that the Court of Appeal may wish to rule on, as is indeed an issue with regard to the Secretary of State's duties of enquiry in the context of fresh-claim decision-making. Both of those matters would benefit, we would respectfully suggest, from further attention by the Court of Appeal.

I just finally observe, too, that with regard to the issue of documentation, your Lordship was directed to evidence with regard to the status of Kirkuk as to its continued status as a contested territory which we contended was not compatible with the conclusion recorded in the decision letter; that the actual evidence cited in the March 2017 COI report did not substantiate the improvement contended for with regard to the state of that contested territory; and we would observe, too, that elsewhere, as your Lordship cited in the introduction to your Lordship's judgment, there was too within the Secretary of State's own current country evidence clear equivocation as to the existence of a documentation facility in Kirkuk that could enable the acquisition of a CSID in any event.

So I submit to your Lordship that there was irrationality within the Secretary of State's evaluation of the CSID issue and incompatibility with the mere assertions made with the actual evidence. My Lord, those are the grounds as I put them.

SIR ROSS CRANSTON: Thank you, Mr Jones. Mr Malik?

MR MALIK: My Lord, there is no realistic prospect of success and there is no other compelling reason why permission should be given. What my learned friend has said is simple disagreement with the reasons that you have given for dismissing the judicial review claim. So I respectfully invite you to refuse permission.

SIR ROSS CRANSTON: Well, notwithstanding the points that Mr Jones has made, I think he will need to apply elsewhere. Anything more?

MR JONES: If I may, my Lord. The claimant has, as your Lordship identified and I think my learned friend made submissions in the course of putting his case to your Lordship, put before the Secretary of State a very detailed argument through his pre-action protocol letter with regard to the existence of risk. The claimant will too, as your Lordship has suggested, be making an application to the court above for leave to appeal in accordance with your Lordship's suggestion.

The concern of the claimant, understandably, is that the Secretary of State will seek to enforce removal before either that pre-action argument is considered or before the Court of Appeal has had an opportunity to rule upon the issue of risk.

With respect to the way that the issues have come out, I think it will be recognised at the very least that there are significant matters that have not been grappled with by the Secretary of State with regard to BA in particular. Your Lordship will recall the submissions that were made by the claimant that, even if your Lordship were to be right -- and your Lordship has made his ruling -- that Kirkuk was safe, the reality is that this man will be returned to Baghdad and will have to traverse Baghdad in order to get back to his home region.

Now, there has been no evaluation of whether or not he would encounter a risk in Baghdad by reference to BA, his status as a Sunni, his status as a person being returned there, his status as a person without connections, and your Lordship has said that the matters in BA are not absolute but I think your Lordship recognised that, on the particular facts that were identified in BA, Sunni status, the absence connections, the absence of religio-political support, there are factors capable of establishing a risk.

My Lord, for that reason we would urge upon your Lordship that an order be made by this court that no enforcement action be initiated pending a decision on leave by the Court of Appeal.

SIR ROSS CRANSTON: Mr Malik?

MR MALIK: My Lord, I respectfully oppose the application. If the Secretary of State issues removal directions, and if an application for permission to appeal is made to the Court of Appeal, it would be open to the applicant to seek an order or a stay from the Court of Appeal. There is, in my respectful submission, in the light of the judgment that my Lord has given, no basis to order a stay.

MR JONES: My Lord, may I just make one final --

SIR ROSS CRANSTON: Well, I am going to order a stay until the decision on permission to appeal is made.

MR JONES: I am grateful.

SIR ROSS CRANSTON: Anything further?

MR MALIK: My Lord, I have an application for costs. I am not sure if my learned friend will oppose it, but I respectfully invite you to make an order requiring the applicant to pay the reasonable costs, to be assessed if not agreed in the usual way.

MR JONES: I cannot resist.

SIR ROSS CRANSTON: Thank you very much the two of you.

MR JONES: My Lord, I believe I have to ask for a detailed assessment of my legal aid --

SIR ROSS CRANSTON: Yes, could you help the associate?

MR JONES: Of course, my Lord.

SIR ROSS CRANSTON: Thank you.

Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital __________ This transcript has been approved by the Judge.