Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 59

P917/16

OPINION OF LORD WOOLMAN

In the Petition of

SENGAR ABDULSAMAD AMIN

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Caskie;  Drummond Miller LLP

Respondent:  Gill;  Advocate General for Scotland

5 April 2017

Introduction
[1]        The petitioner is an Iraqi national.  He claims to have clandestinely entered the United Kingdom in 2007.  Since then he has unsuccessfully applied for asylum on several occasions.  In July 2016 the Secretary of State for the Home Department (“the Home Office”) refused his most recent application.  He now seeks to review that decision.

Background
[2]        The petitioner is of Kurdish ethnicity.  He comes from Kirkuk in northern Iraq.  The Home Office refused his initial application for asylum in in February 2008.  He then appealed to the Asylum and Immigration Tribunal (“AIT”).  Having heard the evidence, the AIT judge disbelieved the petitioner’s account and dismissed the appeal.  In his Judgment of 17 March 2008 he added that, even if the account was true, (a) the petitioner was not at serious risk of persecution or serious harm in Iraq, and (b) he had the option of internal relocation.

[3]        The petitioner became appeal rights exhausted in April 2008.  As a result he had to proceed by means of the “fresh claims” procedure.  He made representations in 2009 (twice), 2010, 2011, 2012 and 2013.  The Home Office determined that they did not meet the test in Immigration Rule 353.  It prescribes two conditions.  First, that the new material is significantly different from that previously considered.  Second, that there is a realistic prospect of success before another judge of the First‑tier Tribunal (FTT).  He challenged only one of the decisions, but the court dismissed his Petition for judicial review after a hearing.

[4]        Despite his failure to establish a right to remain in the United Kingdom, the petitioner has continued to live in Glasgow with a friend who provides him with financial support.

Country Guidance - 2015
[5]        In October 2015 the Upper Tribunal issued a fresh country guidance case:  AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).  It stated that:

i.          The UK should not return individuals to the contested areas of Iraq.

ii.         It can, however, return them to safe areas.  For example “it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad city”.

iii.        Each case is fact sensitive.  Relevant factors will include the applicant’s gender, family connections, ethnicity, ability to speak the language of the region, and possession of an Iraqi Civil Status Identity Document (“CSID”).

[6]        The Upper Tribunal evaluated the relative positions of those relocating to the capital city as follows (at paragraph 202):

“Arabic speaking males with family connections to Baghdad and a CSID are in the strongest position.  At the other end of the scale, those with no family connections in Baghdad who are from minority communities and who have no CSID are least able to provide for themselves.  There are a wide range of circumstances falling between these two extremes.  Those without family connections are more vulnerable than those with such connections.  Women are more vulnerable than men.  Those who do not speak Arabic are less likely to be able to obtain employment.  Those from minority communities are less likely to be able to access community support than those from the Sunni and Shi’a communities.”

Further Representations - December 2015
[7]    On 21 December 2015 the petitioner made further representations.  He based them firmly on AA Iraq.  In summary he made three points:

i.      He could not return to Kirkuk because it was a zone of armed conflict and “[the] issue for consideration therefore is internal relocation”.

ii.     It would be unduly harsh to require him to relocate to the IKR because he would be unable to travel there without a CSID, or to obtain work if he did reach that area.

iii.    It would be unduly harsh to require him to relocate to Baghdad because he would be unable to integrate as he:  (a) did not have an identity document, (b) did not speak Arabic, (c) did not know anyone in the city, (d) could not find a sponsor to assist him in obtaining accommodation, (e) would be within a minority community, (f) had no relevant job skills, and (g) would have difficulties as a failed asylum seeker.

[8]        The representations referred to Article 15(c) of the Qualification Directive.  They did not refer to his right to a private life in terms of ECHR Article 8 or to Immigration Rule 276ADE(1).

Decision Letter – July 2016
[9]        By letter dated 26 July 2016 the Home Office held that he had no realistic prospect of success before the FTT.  Accordingly, the representations did not amount to a fresh claim.

[10]      It accepted that he could not return to Kirkuk, but continued:

“The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15 (c).”

[11]      The Home Office considered that it would not be unduly harsh for the petitioner to relocate to the IKR or Baghdad:

“Iraq is the country of your birth and indeed a country in which you speak one of the languages and where you have previously resided for approximately 20 years (over half of your life including the majority of your formative years). It is therefore considered that there are no reasons why you cannot re-integrate into Iraqi society, re-establishing your private life there in the process. You have already demonstrated considerable personal fortitude in relocating to a country where you do not have any ties or speak the language and attempting to establish a life here and you have offered no explanation why you could not demonstrate the same resolve to re‑establish your life in Iraq. You can maintain contact with any UK based friend through modern channels of communication.”

[12]      It also held that his ECHR Article 8 rights would not be infringed and (iii) that paragraph 276ADE(1) was not engaged.

Further Country Guidance – August 2016
[13]      A matter of weeks after the Home Office issued the decision letter, it published Country Information and Guidance Iraq:  Humanitarian Situation (“CG Iraq”).  It is designed to be an authoritative and comprehensive document.  The preface states that the Home Office sought “[to] corroborate the information used across independent sources … to ensure accuracy”.  It cites AA Iraq as a source.

[14]      CG Iraq narrates that individuals may face grave difficulties in areas of the country where the situation is deteriorating, particularly internally displaced persons without a support network.  But it also states that “the humanitarian conditions in Iraq are not so severe as to make return a breach of Article 3 of the ECHR.  Decision makers must consider each case on its merits”:  paragraph 3.1.1.

The Test
[15]      The court’s role is well‑known.  It oversees the decision-making process and checks that the Home Office has applied anxious scrutiny in reaching its decision.  The court will quash a decision that is unreasonable in the Wednesbury sense.  It does not of course substitute its own view on the merits.  That assessment remains within the exclusive province of the decision maker:  see R v Secretary of State for the Home Department 2011 SLT 970;  ABC v Secretary of State for the Home Department [2013] CSOH 32.

Scope of the Present Dispute
[16]      Two near acronyms ‑ CSID and IKR ‑ loomed large in the case for a long period.  Before me counsel excised them from the discussion.  Mr Caskie proceeded on the basis that the petitioner could obtain a valid CSID.  Mr Gill “parked” the question of a return to the IKR.  That usefully narrowed the scope of the dispute, as did their focus on Baghdad, rather than the Southern Governates.

Anxious Scrutiny
[17]      Mr Caskie submitted that the Home Office failed to give anxious scrutiny to the petitioner’s representations.  It did not properly address the issue of whether it would be unduly harsh for him to relocate to Baghdad.  In particular, it should have taken into account the most recent information about the deteriorating conditions in Iraq.

[18]      Mr Caskie contended that the Home Office should have treated AA Iraq with caution as it is under appeal.  The case‑worker dealing with the petitioner’s representations was obliged to consider “all the available evidence when deciding whether there is a realistic prospect of success at appeal”:  paragraph 4.2 Asylum and Human Rights Policy Instruction further submissions (February 2016).  That evidence included all the information eventually embodied in CG Iraq.  It collated existing knowledge about the country, which the Home Office had accessed well before the date of the decision letter.

[19]      In my view that approach shifts the onus too far toward the Home Office.  Country guidance cases provide the starting point for the discussion.  They play a crucial role within the immigration system.  Without them the Home Office and the courts would have to assess the risks in individual countries in each case.  That would be an unreasonable use of resources.  It would also undermine the principle of comparative justice.  Decision makers might use different materials or place a different interpretation on the same materials.  That might yield conflicting views.  Like cases might not be treated alike.

[20]      The application of a standard approach is therefore both desirable and necessary.  That is reflected in internal Home Office guidance.  It is also the instruction given to FTT judges.  They must follow country guidance cases “unless very strong grounds supported by cogent evidence are adduced justifying their not doing so”:  R (SG (Iraq)) v Secretary of State for the Home Department [2013] 1 WLR 41 at paragraph 47 per Stanley Burnton LJ.

[21]      It is plain from that statement that CG cases do not shackle decision‑makers.  They can consider other factors, but the burden lies on the applicant.  Here the petitioner founded on AA Iraq.  He did not, for example, rely on later EU or UN reports about conditions in the country.  In my view the Home Office was entitled to decide matters on the basis of the representations.  It did not have to embark on a search for any and all information that might assist the petitioner.

[22]      There is another aspect to this matter.  No doubt the Home Office receives an unceasing flow of information about individual countries from a variety of sources.  Unless and until it adopts a formal position, however, the status and weight of such information is uncertain.  Case‑workers cannot be expected to make their own evaluation of this mass of material.  They may not even know its extent.

[23]      Mr Caskie also submitted that in the exercise of anxious scrutiny, the Home Office should have ignored the adverse credibility findings made by the AIT judge.  I disagree.  While it is not a decisive factor, it is a relevant one.  The Home Office was entitled to take the view that a FTT judge would treat the petitioner’s assertions about his ability to relocate to Baghdad as automatically suspect:  see Asylum and Human Rights Policy Instruction further submissions at paragraph 4.2;  Devaseelan v Secretary of State for the Home Department [2003] Imm AR 1;  and WM (DRC) v Secretary of State for the Home Department [2007] Imm AR 377.  The findings could therefore inform the second limb of the Rule 353 test.

[24]      I therefore hold that the Home Office met the test of anxious scrutiny.  I am also satisfied that it provided adequate reasoning.  The decision letter exhibits a careful and logical approach to each representation.  A reasonable reader is left in no doubt about the basis upon which the Home Office rejected the application.

Ali v Secretary of State for the Home Department
[25]      After the hearing before me, Lord Bannatyne issued a decision in a case with a number of parallels to this case:  Ali v Secretary of State for the Home Department [2017] CSOH 11.  I considered whether to fix a By Order hearing to allow parties to address me further.  On reflection, however, I decided not to do so.  I am satisfied that the facts and the arguments are distinguishable.  Ali does not cause me to alter the view I have reached.

Final Order
[26]      I shall sustain the respondent’s second and third pleas‑in‑law, repel the petitioner’s plea‑in‑law, and dismiss the Petition.  Meantime I reserve the issue of expenses.