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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen
Lord Wheatley
Lord Mackay of Drumadoon
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[2007] CSIH 29
XA95/05
OPINION OF THE COURT
delivered by LORD WHEATLEY
in
APPLICATION FOR LEAVE TO
APPEAL TO THE COURT OF SESSION
under section 103B of the
Nationality Immigration and Asylum Act 2002
by
SAEED MOHAMMED IBRAHIM
Applicant
against
A decision of the ASYLUM
AND IMMIGRATION TRIBUNAL dated 23 August 2005
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Act: Forrest; Livingstone Brown
Alt: Lindsay; Solicitor to the Advocate General
20 April 2007
[1] The appellant
is a citizen of Iraq, who arrived in the United Kingdom on 14 July
2000. In 1993 a man named Omer Hamakiki, who was a
member of an organisation called the Patriotic Union of Kurdistan (the "PUK"),
murdered the appellant's uncle, Mulla Omer.
Together with the Kurdistan Democratic Party (the "KPD"), another
organisation operating in that part of Iraq, the PUK are in effect responsible
for much of the government of the Kurdish Autonomous Area (the "KAA") in
Northern Iraq where the appellant comes from.
Omer Hamakiki was also a member of the Jaff tribe which is powerful and
has significant influence with the PUK, with which organisation it has many
common members. In June 2000, Aso Omer,
who was the son of Mulla Omer, who was the appellant's cousin, was staying with
the appellant. One day, Omer Hamakiki
passed the appellant's place of business, and as he did so the appellant's
cousin killed him in circumstances where it appears clear that the appellant
was also present. Both the appellant and
his cousin thereafter immediately made off, but the cousin was apprehended on
the next day by the PUK, and was immediately handed over to relatives of Omer
Hamakiki, who were members of the Jaff, who summarily executed him on the
following day. The appellant's brother,
who does not seem to have been present at the time of the murder, was also
apprehended, but subsequently released.
The appellant's position is that, although he is innocent of the murder
of Omer Hamakiki, he is apprehensive that should he return to Northern Iraq he will be apprehended by the PUK
and that he too would be handed over to the Jaff and meet the same fate as his
cousin. He was satisfied that he will
not receive the necessary degree of protection from retribution by the
Jaff. He also contends that it is a
matter of some significance is that, following his departure from Iraq, the PUK issued what appear to be
accepted as warrants for his apprehension, with a view to putting him on trial
for complicity in the murder of Omer Hamakiki.
[2] On his
arrival in the United Kingdom, the appellant applied to the
Secretary of State for the Home Department for asylum. His application was refused. The applicant sought leave to appeal to an
adjudicator, who upheld the Secretary of State's decision on 11
December 2005. The appellant was granted leave to appeal to
the Immigration Appeal Tribunal on 26 June 2004, and his appeal was conjoined with
two other similar appeals. The
Immigration Appeal Tribunal dismissed the appellant's appeal on 28
June 2005. Leave to appeal against that decision was
refused by the Tribunal on 23 August 2005, and it is against that decision
that the present appeal is taken. In essence
the basis of the appellant's first stated ground of appeal is that the Tribunal
erred in law in holding that there was no arguable error of law in its
conclusion that the appellant did not face a real risk of persecutory
ill-treatment or breach of his human rights on his return to Iraq.
Further, the appellant claims in his second ground of appeal that the
Tribunal erred in holding that there was no arguable error of law in concluding
that if there was a risk to the appellant on his returning to Iraq, there would
be a sufficiency of protection available to him from the relevant authorities
there.
[3] In
considering the appeal, the Tribunal had at its disposal a number of
documents. The adjudicator in his
determination and reasons had found that the appellant was a credible and
consistent witness, and that he had produced documents which confirmed his
account of what had happened to him. In
particular, the adjudicator accepted the appellant's evidence that he was not
involved in the murder. He also accepted
that the appellant fears persecution by the deceased's family and the Jaff
because the PUK will not be able to protect him. The appellant made it clear to the adjudicator
that he did not claim that he would be persecuted by the PUK, but the adjudicator
accepted that there was a risk that the deceased's family would retain an
interest in the appellant, presumably with a view to exacting some form of
revenge for the murder of Omer Hamakiki.
However, the adjudicator noted that there was political will within the
PUK and the KDP to address the issue of honour killings and to do something
about them, and that sanctions against those who commit such murders might now
be regarded as more effective.
Accordingly, although the adjudicator had some reservations about the
efficacy of the protection that might be available throughout the KAA for
someone in the appellant's position, and that such protection would be limited,
he concluded that there would be a sufficiency of protection for the appellant
should he return to the area controlled by the PUK. In particular he concluded that the appellant
could seek the protection of the PUK and that they would be willing to protect
him.
[4] The
Immigration Appeal Tribunal agreed in principle with the adjudicator's decision. They considered expert evidence from Dr.
Fateh and Ms. Laizer, both specialists in Middle East, and especially Iraqi, affairs, and
their reports were also before the Tribunal.
Ms. Laizer informed the Tribunal that the appellant was not affiliated
to any particular tribe. The Tribunal
also considered the Dutch Official General report on Northern Iraq dated April 2000. This report noted, among other things, that
in Northern
Iraq and Kurdistan, blood feuds and practices are
settled by people taking the law into their own hands, although blood feuds
were now less common. The report also
noted that the PUK and the KDP cannot always provide effective protection
against such vendettas, which sometimes cost lives. Efforts were currently being made in terms of
the report to resolve such feuds by peaceful means.
[5] Having
considered these various documents and testimony, the Tribunal, relying
particularly on the Dutch Official 2000 Report, came to the conclusion that
they did not consider that the appellant faced a real risk of persecutory
ill-treatment should he return to Northern Iraq (paragraph 303). They noted that the Jaff Tribe which posed
the potential problem was by general agreement powerful, and a major force in
the PUK. The man killed by the appellant's
cousin was clearly of some influence in the PUK. It was accepted that the PUK had issued what
were effectively arrest warrants against the appellant which would be exercised
on his return to Iraq.
It was in particular observed that the appellant did not claim to fear
persecution by the PUK, but rather by the Jaff, who would, in his view, be determined
to kill him. It was noted that the
appellant's cousin had killed Omer Hamakiki some years after Mr. Hamakiki had
killed the cousin's father, and that the appellant's brother, who appeared to
be wholly uninvolved in the killing, had been arrested and subsequently
released. It is unclear exactly what
inference, if any, the Tribunal drew from this latter consideration.
[6] The Tribunal
provided three specific reasons for their conclusion that the appellant would
not face any risk of persecution should he return to Iraq.
The first was that the appellant was not affiliated to any tribe, and a
consequence of this was that any affront to the Jaff tribe would not be of the
same order had a member of a similar tribe killed one of its own members. While it is clear that there was evidence
that the appellant was not so affiliated, particularly from Ms. Laizer, the inference
that that would make a revenge killing less likely is not clearly vouched in
the evidence, although the extent and nature of any risk to the appellant is a
matter on which the Tribunal might reasonably be expected to apply its own
experience and rationality. However,
this adminicle of evidence does not seem to us to be particularly persuasive in
the matter of assessing the risk that the appellant would face of persecutory
ill-treatment on his return to Iraq, a view which seems to have been
shared by the Tribunal.
[7] The second
reason which the Tribunal gave in support of their conclusion that the
appellant faced no risk on his return to Iraq was that there had now been two
killings on the side of the appellant's family and only one of the Jaff
side. The Tribunal seemed to consider
that this was an indication that the Jaff's thirst for revenge had been
satisfied and that therefore its members would not pursue any feud against the
appellant. We find it difficult to
understand how this conclusion was reached.
A basis for it cannot be found anywhere in the evidence before the
Tribunal. It must therefore be the case
that the Tribunal reached this conclusion from its own resources. While this can be a legitimate exercise,
there has to be some form of justification for the conclusions drawn, and those
conclusions have to be in some respect referable to the evidence available to
the Tribunal. The fact that the Jaff are
a major influence in the PUK, and that the PUK have issued warrants for the
appellant's return, would suggest that interest in the appellant by the PUK and
the Jaff had not diminished. In these
circumstances, it would have been helpful to have a fuller discussion on what
lay behind this particular justification for the Tribunal's decision.
[8] However, the
principal determinative reason (described as "free-standing" by the
respondent's counsel) as to why the Tribunal concluded that the appellant did
not face a real risk of persecution should he return to Iraq lay in the issue
of warrants by the PUK for the apprehension of the appellant (paragraph
304). The Tribunal concluded that, so
far as they were concerned, the issue of these warrants clearly indicated that
the PUK had decided that they will deal with the matter of the appellant's complicity
in the murder. The Tribunal then go on
to note that this decision can hardly have been reached without any involvement
of the Jaff, given their power and influence within the PUK. Nonetheless, the Tribunal were satisfied that
a decision has been made that the matter will be dealt with by the PUK rather
than by the appellant being placed in the hands of the Jaff, or that tribe
having the opportunity of getting their hands on the appellant, assuming they
retain an interest in his fate. We are
not persuaded that this line of reasoning is wholly convincing, although the
Tribunal do go on to set their decision in this respect against the background
that they also accept that the PUK operates a judicial system of some
independence in the area under their control.
[9] However, we
have come to the view that this conclusion by the Tribunal is flawed in one
significant respect. In reaching their
view that the appellant could safely return to Northern Iraq in the face of competing submissions
on that matter, it would appear that the Tribunal has completely failed to take
into account the appellant's main argument in support of his contention that it
would not be safe for him to do so. At
paragraph 248 of the Tribunal's decision it is clear that, in summing up,
counsel for the appellant submitted that what had happened to the appellant's
cousin was of particular importance. The
cousin had been detained by the PUK the day after the killing in 2000, and a
day later he was dead at the hands of the Jaff.
That experience seems directly to contradict the reasoning adopted by
the Tribunal in reaching their conclusion that the appellant did not face any
risk on his return, and the evidence about what happened to the cousin was uncontested. In properly considering the risks to the
appellant should he be returned to Northern Iraq, therefore, the Tribunal had a duty
to consider what in fact had happened to the appellant's cousin, and decide what
effect this had on their assessment of the risk that might await the appellant
should he return home. Although what
happened to the appellant's cousin is only one issue in a lengthy, detailed,
and useful determination by the Tribunal, we have come to the view that it is
of sufficient significance to cast doubt on the validity of the Tribunal's
conclusion on the fate that may await the appellant should be return. In that respect, therefore, the Tribunal's
decision can be described as unreasonable.
[10] In these
circumstances it is unnecessary to consider the question whether, given such a
risk exists, the protection available to the appellant by the State against
persecutory ill-treatment by non-State agents (namely the Jaff tribe) would be
sufficient. As is often the case in
matters of this sort the issues which determine whether or not there is a risk of
persecutory ill-treatment are inextricably bound up with the question of
whether there is adequate provision to protect against that risk. In the present case the considerations which
affect each of these issues are almost identical. The risk to the appellant is not that he
would be apprehended by the PUK in execution of the warrants they have issued,
but that the PUK would thereafter hand him over to the Jaff. The question of sufficiency of protection
depends therefore on whether the PUK would be able to insist that they retain
control of any process that follows on from the appellant's apprehension, and
do not find themselves constrained to hand the appellant over to the Jaff. It is in this respect that the history of
what happened to the appellant's cousin is again of considerable
significance. Finally, we should make it
clear that in this appeal the question of internal relocation, should the risk
of persecutory ill-treatment to the appellant be established, and the
protection available against that risk being found to be inadequate, was not dealt
with in the course of the hearing. Counsel
for the respondents conceded that the matter had not been put before the Tribunal,
and therefore could not be raised now.
[11] In these
circumstances we are minded to set aside the decision of the Tribunal dated 23
August 2005, refusing the appellant leave to appeal against the decision of the
Tribunal dated 28 June 2005, in terms of section 103B(4)(b) and (c) of the
Asylum Immigration (Treatment) Etc. Act 2004.
We accordingly remit the case back to the Tribunal for reconsideration
by a differently constituted Tribunal. For
the avoidance of doubt, we consider that the question of whether there is a
risk of persecutory ill-treatment to the appellant should he return to Iraq,
the sufficiency of the protection available to him, should that risk be
established, and the matter of internal relocation should that protection
appear to be inadequate, should all be considered by the reconstituted tribunal.
