Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 11

P682/16

OPINION OF LORD BANNATYNE

In the petition of

HOWRI ABDULLAH ALI

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Webster;  Advocate General for Scotland

27 January 2017

Background
[1]        The petitioner is a citizen of Iraq, who claims to have entered the United Kingdom clandestinely in 2008.  He claimed asylum in 2008.  That claim was refused by the respondent;  and on appeal.  The petitioner did not then leave the United Kingdom.  He has made a number of further attempts to regularise his presence in the United Kingdom, in 2009, 2010, 2012, 2013 (on two occasions), and 2014.  On each occasion the petitioner failed and thereafter failed to remove himself from the United Kingdom.

[2]        The petitioner made further representations in 2016, predicated on (1) the decision in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC);  and (2) an Article 8, ECHR claim, in turn predicated on a purported relationship with a British national and her child.  On 28 April 2016 the respondent determined that the petitioner’s further representations did not amount to a fresh claim.  The petitioner challenges that decision.

[3]        The respondent considered the petitioner could relocate within Iraq on return to either the Kurdistan region of Iraq (IKR) or to Baghdad or the southern governates.  Further, she concluded that the petitioner’s Article 8 claim was unmeritorious.  She concluded that in the light of the same the petitioner’s further representations did not present a realistic prospect of success.

Submissions on Behalf of the Petitioner
[4]        The argument presented by counsel for the petitioner was much more limited than what was set out both in the petition and the Note of Argument.  He advised the court at the outset that he did not intend to argue that the petitioner was entitled to refugee or humanitarian protection on the basis that his Article 3 ECHR rights would be breached.  His argument would be confined to submitting this:  there was a realistic prospect that with respect to his Article 8 ECHR claim an immigration judge applying the rule of anxious scrutiny would find in terms of Immigration Rule 276ADE(VI) of Appendix FM there would be very significant obstacles to the petitioner’s integration into Iraq.

[5]        The position as developed by counsel in support of that contention can be summarised as follows:

• No anxious scrutiny had been given by the respondent to this issue in the decision letter;
• The respondent had only had regard to factors, which tended to support the petitioner being able to reintegrate into Iraqi society;
• The respondent had had no regard to the difficulties which the petitioner would be likely to face in reintegration, in particular arising from the humanitarian situation in Iraq.

[6]        Counsel directed my attention to the Country Information and Guidance Iraq:  Humanitarian situation document.  This is a document prepared and published by the Home Office and the content of that document was at all relevant times known to the respondent.  It was a document which the respondent was required to have regard when reaching her decision with respect to the petitioner.

[7]        In the preface to this document the following is stated:

“This documents provides country of origin information ... and guidance to Home Office decision makers.”

[8]        Counsel placed reliance on the information regarding the humanitarian conditions in Iraq and placed particular significance on the following sections:  3.1.2;  5.1.1;  6.1.1;  6.1.3 -6.1.10;  and 7.2.1.

[9]        Counsel argued that the decision of the respondent had entirely failed to consider the humanitarian conditions in Iraq and the very significant obstacles they gave rise to with respect to the petitioner’s reintegration.

[10]      He directed the court’s attention to the following section of the decision letter where the consideration of the issue of very significant obstacles was carried out:

“It is not accepted that there are very significant obstacles preventing you from continuing with and re-establishing and developing your private life upon return to Iraq, the country of your birth, the country in which you speak the language and have resided in for the vast majority of your life, 20 years as opposed to 8 years in the United Kingdom.  Upon your return you can keep in contact with any UK based friends and other associates through modern channels of communication.  You have gained qualifications while residing in the United Kingdom and it is considered you can utilise these skills upon your return.  You are a 28 year old adult who enjoyed an established private and family life before coming to the UK and there is no reason why you could not do so again upon your return to Iraq and you therefore fail to fulfil Rule 276 ADE(vi).”

[11]      He submitted that there was no consideration therein of the humanitarian conditions in Iraq.  His position was this:  no balancing exercise had been carried out by the respondent weighing up the factors favourable to and unfavourable to the petitioner’s reintegration.

[12]      Beyond that he submitted that there was no consideration of the petitioner’s Kurdish ethnicity and his inability to speak Arabic, both he submitted major obstacles to reintegration in the Baghdad area.

[13]      For the foregoing reasons he submitted that the decision should be reduced.

Reply on Behalf of the Respondent
[14]      Mr Webster raised a preliminary point, that the argument put forward by the petitioner in the course of oral submissions was not contained in the petition and the petitioner’s Note of Argument and accordingly he had not been granted permission to proceed in terms of this argument.  He submitted he was not entitled to put forward this argument.  I did not believe there was any merit in this argument.  There was I am satisfied sufficient at paragraph 16 of the petition and paragraph 15 of the Note of Argument to entitle the petitioner to put forward this argument.

[15]      Turning to the substance of the petition, counsel argued this:  so far as relocation to the IKR, the respondent had regard to the likely ability of the petitioner to travel to the IKR and his ability to obtain work and establish himself there.  She observed of the petitioner:  who speaks Kurdish Sorani;  who had secured employment as a policeman before leaving Iraq;  who had been resourceful enough to travel to the United Kingdom from Iraq and to enter the United Kingdom clandestinely and unlawfully;  and who had managed to support himself in the United Kingdom for at least 7 years or thereby, as follows:

“you are a young healthy male who was able to get employment in Iraq prior to your arrival in the United Kingdom and therefore you can utilise your skill upon return to Iraq”.

In the circumstances the respondent was entitled to conclude that the petitioner was reasonably to be expected to be able to relocate to the IKR in the event of return to Iraq.  Her decision that there was not a realistic prospect of success in the petitioner’s further representations, in the light of the same, was not irrational or unreasonable.  In any event in the circumstances any error was not material.

[16]      With respect to Baghdad he said this:  the respondent had regard to the ability of the petitioner to support himself in the event of return.  She observed, in the light of the evidence before her, as to the petitioner’s age, previous employment in Iraq, ability to transport himself from Iraq to the United Kingdom, his ability to avoid immigration controls and his ability to support himself on that journey and thereafter support himself in the United Kingdom for 7 years or thereby, that:

“you are a young male who has demonstrated he can be independent and self-sufficient in the United Kingdom and therefore it is considered that you can utilise these skills upon return to Iraq where relocation is a reasonable option for you.”

The respondent had previously reasonably noted that the case of AA had observed, that background information supported the view that failed asylum seekers are provided with support.  Further in AA the Upper Tribunal observed that there were opportunities for displaced person to earn sufficient funds to enable them to rent accommodation.  In the circumstances, the respondent had regard to the issue of the ability of the petitioner to support himself in the event of return to Baghdad.  A decision that there was not a reasonable prospect of success in the petitioner’s further representations, in the light of the same, was not irrational or unreasonable.  In any event, in the circumstances, any error was not material.

[17]      As regards consideration of the Article 8 claim, he submitted that the decision letter had to be looked at as a whole and that in the course of her consideration of issues such as relocation to the IKR and Baghdad earlier in the decision letter, before turning to Article 8 the respondent had had regard to the humanitarian conditions in Iraq.  It was not merely in the section referred to by counsel for the petitioner that she had had regard to the issue of obstacles to integration. 

[18]      With respect to the specific consideration of Article 8 within the decision letter he said this:  the respondent is said to have failed to have regard to likely difficulties in reintegration and reached a view on prospects of success which is unreasonable.  The respondent observed that the petitioner would be returning to his country of birth, where he had lived for 20 years before travelling to the United Kingdom and where he did speak the language.  The respondent observed that the petitioner had gained qualifications whilst in the United Kingdom.  That qualification was in respect of English as a foreign language.  The respondent, not unreasonably, observed that the petitioner has skills that he could utilise on return to Iraq.  Accordingly, the respondent had regard to potential difficulties in the event of return but concluded that they were not very significant and that return would not be disproportionate.  A decision that there was not a realistic prospect of success on the basis of the petitioner’s further representations in the light of the same was not irrational or unreasonable.  In any event in the circumstance, any error was not material.

[19]      It was his position overall in deciding whether there were barriers to reintegration, the respondent had directed herself properly to AA and the particular circumstances and the characteristics of the petitioner and these were the significant relevant factors in considering the question before her.

[20]      He pointed to the particularly high barrier erected by the test.  It was not just “obstacles”, it was not just “significant obstacles”, but “very significant obstacles to integration” and it was his position that the petitioner’s case relative to this issue came nowhere near meeting that test.

[21]      It was his submission that given that AA was considered there was no need for the respondent specifically to refer to the general background country information upon which the petitioner sought to rely, that background information was looked at in AA.  Moreover, although the background information perhaps set out obstacles these could not be characterised as very significant obstacles.  It was his position that having regard to the whole circumstances taken into account by the respondent, the failure to narrate any obstacles as set out in the general background information did not amount to a material error of law.

[22]      The decision was both rational and reasonable.

Discussion
[23]      I am of the view that the respondent’s decision cannot be upheld.

[24]      First, in considering the Article 8 position, the respondent was not entitled simply to have regard to AA and not look beyond it.  The guidance given in AA relates to Article 15(c) of the Qualification Directive which provides as follows:

“Serious harm consists of:

…

(c)        serious and individual threat to a civilian’s life … by reason of indiscriminate violence in situations of international or internal armed conflict.”

[25]      The test is therefore a very different one from the test the respondent was considering in the instant case, namely:  significant obstacles to integration.  The issue as to whether a test of serious harm as above defined could be met and whether a test of significant obstacles to integration could be met are entirely separate questions.  I recognise that in relation to these two tests there will be a degree of overlap in the factors to be considered.  Thus if there was a serious threat to the petitioner’s life on his return to Iraq due to internal armed conflict both tests would be met.  However, there are clearly circumstances which amount to very significant obstacles to integration which do not amount to serious harm, as above defined.  Thus in considering whether there are very significant obstacles to integration in the circumstances of this case, it is proper to take as a starting point the position regarding Article 15(c).  However, because there is no breach of Article 15(c) in returning an applicant to a particular area of Iraq, it does not automatically follow that the petitioner returning to such an area (in this case the IKR or Baghdad) would not face very significant obstacles to integration.  Accordingly I am persuaded that the respondent in considering the issue before her could not simply confine herself to consideration of the guidance in AA.  On a fair reading of her decision letter, so far as the circumstances existing in Iraq are concerned, I believe she did confine herself to the guidance given in AA.

[26]      Secondly, the guidance relied upon by the petitioner’s counsel (particularly in the parts to which I was directed by counsel) sets out a substantial number of obstacles which would be met by the petitioner on return to either the IKR or the Baghdad area.  That background information which was available and known to the respondent at the material time is nowhere considered in the decision letter.  Mr Webster, conceded that this background information set out obstacles.  However, in his submission not very significant obstacles to reintegration.  Having conceded that there are obstacles set out therein, the respondent in her decision letter had to set out what weight she gave to those obstacles and why she did not find them to be very significant in the circumstances of the petitioner.  The respondent does not do so.

[27]      It seems to me that there is a complete failure by the respondent to consider the current humanitarian situation in Iraq as set out in her own guidance and to grapple with the issues which reasonably arise therefrom regarding integration in Iraq.  There is in the decision letter, as submitted on behalf of the petitioner, only a consideration of the positive factors, favouring the petitioner’s ability to integrate in Iraq and a complete failure to consider the other side of the equation, namely:  the obstacles to integration identified by the respondent in her own guidance.  There is a failure to consider the whole picture, and a failure to carry out the necessary balancing exercise in weighing up the various factors relative to the petitioner’s case. 

[28]      Moreover, when looking at the personal circumstances of the petitioner there is no consideration in relation to his relocation to Baghdad, that he does not speak Arabic, the language spoken in that area of Iraq.  Given the background information before her this was a material factor which required to be considered by the respondent.

Conclusion
[29]      For the foregoing reasons I hold the challenge to the respondent’s decision is well‑made and that the respondent’s decision falls to be reduced.  I have decided that it was unreasonable for the respondent to fail to address the above points when deciding that an appeal to an Immigration Judge did not have a reasonable prospect of success.  Or to put the matter in another way, using the formulation of Buxton LJ in WMC (Democratic Republic of Congo) v Secretary of State for the Home Department  2006 EWCA Civ 1495 at paragraph 11, the respondent failed to satisfy the requirements of anxious scrutiny.

Decision
[30]      I therefore sustain the petitioner’s plea in law to the extent of finding that the respondent’s decision, that the petitioner’s submissions did not amount to a fresh claim, was unreasonable and I repel the respondent’s pleas in law.  I reduce the decision with the result that the matter returns to the respondent for reconsideration.  I reserve in the meantime all questions of expenses.