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Cite as: [2017] ScotCS CSIH_66

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lady Clark of Calton

[2017] CSIH 66

XA36/17

OPINION OF LADY CLARK OF CALTON

in the application

for

Leave to Appeal

Under section 13 of the Tribunals, Courts and Enforcement Act 2007

DYARI MOHAMMAD KHEDR (AP)

Applicant

against

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Appellant: Winter; Drummond Miller LLP

Respondent: Smith; Office of the Advocate General

8 November 2017

Summary

[1] Mr Khedr is a national of Iraq from the Kurdish area of Iraq (“the IKR”). He was

refused asylum, humanitarian protection and human rights protection by the respondent.

His appeal to the First-tier Tribunal was refused by a decision dated 16 November 2016. In

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relation to the merits of the case, his account was considered to be “a fabrication”. The First-

tier Tribunal also considered the question of Mr Khedr’s return to Iraq but did not consider

that issue on the basis of preclearance and concluded in paragraph 25 that, “in terms of any

journey from Baghdad to the IKR that would appear to be feasible ...”. Mr Khedr appealed

to the Upper Tribunal on a number of grounds. This included a challenge to the absence of

any consideration of country guidance that any return directly to IKR would need to be

precleared with the authorities in the IKR and to the approach of the First-tier Tribunal

judge who considered a return via Baghdad.

[2] Before the Upper Tribunal the focus of the disputed issues moved to preclearance

and the absence of any evidence that the Kurdish authorities had precleared Mr Khedr for

entry to the IKR. According to paragraph 7 of the decision of the Upper Tribunal, the

representative of the Secretary of State presented the case on the basis that in the findings:

“... the appellant was returnable directly to the KRG, in keeping with country

guidance ... It was accepted that the judge had not considered the feasibility of

relocation in Baghdad, but that alternative did not arise”.

Mr Khedr relied on the grounds which are set out at the beginning of the determination of

the decision of the Upper Tribunal dated 16 February 2017. It was submitted on his behalf

that the First-tier Tribunal judge had not taken account of the guidance in AA (Article 15(c))

CG [2015] UKUTR 544 (IAC) to the effect that any return directly to the IKR needs to be

cleared with the authorities in the IKR; that additionally the First-tier Tribunal judge had

not taken the guidance in AA into consideration because entry by Mr Khedr into the IKR

would be contingent upon him having a CSID or another way to prove his identity in order

to be “precleared”. The appeal as presented, focused on the issue that there was no evidence

that the Kurdish authorities had precleared Mr Khedr and that if not precleared, he would

be left in limbo. It was submitted on behalf of Mr Khedr that the approach by the

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respondent was in error and that preclearance needed to be established and that the onus

was on the respondent to show how return was to be carried out.

[3] In considering these submissions the Upper Tribunal judge, under reference to AA,

noted that he was not referred to any passage which suggested that the Secretary of State is

required to produce individual preclearance at an appeal hearing, failing which an appellant

is entitled to protection. He accepted the submissions on behalf of the respondent to the

effect that:

“Removal arrangements are generally made once a person is lawfully removable. It

would be cumbersome and wasteful (and probably unlawful) to make them in

advance. The Secretary of State is not usually required to prove the specific mode by

which return is to be carried out in each case.”

In conclusion, the Upper Tribunal judge concluded that he preferred the submissions on

behalf of the respondent and could identify no error of law in the decision of the First-tier

Tribunal. He considered that the First-tier Tribunal correctly applied country guidance and

that the guidance was not subject to appeal on any material point.

[4] The appellant, having failed before the Upper Tribunal, sought leave to appeal to the

Court of Session and advanced grounds substantially similar to the grounds advanced

before this court. The Upper Tribunal in considering the application for permission to

appeal to the Court of Session stated:

“The SSHD is not arguably obliged to obtain clearance from an appellant’s national

authorities for his return, in advance of the decision of his appeal.”

The application for leave to appeal to this court was accordingly refused.

Application to the Court of Session for Leave to Appeal

[5] There was no significant dispute between the parties about the test to be applied by

this court under Rule of Court 41.57(2) in considering whether leave to appeal should be

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granted. The only part of the rule relied on by Mr Khedr is sub-section 2(b) that “there is

some other compelling reason for the court to hear the appeal”. This rule is often referred to

as the application of the second appeals test in the sense of the principles set out in Eba v

Advocate General 2012 SC(UKSC) 1. Compelling in the context of this Rule of Court means

legally compelling and extreme consequences for an individual are not enough unless in

combination with a strongly arguable error of law in which the prospect of success must be

very high (Uphill v Brb (Residuary) Ltd (2005) 1 WLR 2070 paragraphs 19 to 25.

[6] In relation to error of law, there were two main grounds advanced on behalf of

Mr Khedr in the Grounds of Appeal. The first ground was an alleged error on behalf of the

Upper Tribunal in paragraph 13 to the effect that the Upper Tribunal was wrong in law in its

approach to preclearance. Secondly, that the Upper Tribunal erred in its approach in

paragraphs 10 and 11 by misapplying the law. Counsel for Mr Khedr adopted his detailed

written note of argument which he developed in oral submissions and focussed on the issue

of preclearance. Counsel for the respondent submitted that the application was based on a

fundamental misunderstanding of the difference between an immigration decision and

removal directions. She submitted that the process of removal was not properly the subject

of final consideration by the Upper Tribunal and relied on EH v Secretary of State for the Home

Department (2006) Imm AR 19. In this case the Secretary of State had not yet committed to a

particular method or route of return and the issue of return was therefore hypothetical. If

there was direct preclearance and return to the Kurdish autonomous area (the KAA) the

issues to be considered would be different from any return by Mr Khedr to that area via

Baghdad. Counsel for the respondent accepted that at the stage of consideration of removal

directions, the respondent required to undertake another assessment including ECHR

considerations. I understood her to accept that neither the First-tier Tribunal nor the Upper

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Tribunal had undertaken any final assessment about this and that the remedy of judicial

review would be available to Mr Khedr in the event that any removal directions were

alleged to be unlawful. This was not disputed by counsel for Mr Khedr but his submission

was that all matters should be decided within the existing proceedings.

[7] I am grateful for the written and oral submissions of counsel for both parties which I

have carefully considered. In my opinion, the subtleties of the submissions against a

background of the different approaches by the First-tier Tribunal and the Upper Tribunal to

the factual issues relating to preclearance make it very difficult for me to accept the

submissions on behalf of Mr Khedr. Neither counsel were able to inform me what

preclearance involved as a matter of fact. I am not persuaded that, in the context of this case,

the Upper Tribunal has erred in law by failing to take account of AA or AK v Secretary of

State of the Home Department (2007) Imm AR 81. I accept that in presenting the case to the

Upper Tribunal, the representative of the respondent appeared to accept that the only return

in prospect was a return of Mr Khedr directly in keeping with country guidance. Counsel

for the respondent in oral submissions did not accept that this was a concession to the effect

that a return to Baghdad is not an option open to the respondent considering return

directions.

[8] Unless and until removal directions are made, I do not consider that any proper

assessment can be made in the context of this case taking into account the way in which it

has been dealt with to date. In my opinion, this application falls at the first hurdle because I

am not satisfied that there are errors of law identified which are strongly arguable. I also

have difficulty in accepting the submission on behalf of Mr Khedr that the decision has

drastic consequences for the applicant. If and when removal directions are given, the

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lawfulness of the directions can be assessed at that point when Mr Khedr continues to be in

the UK.

[9] For the reasons given the application for leave to appeal to this court is refused.