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DK (Iraq) v Secretary of State for the Home Department, [2008] EWCA Civ 1169 (10 October) (Court of Appeal 2008)




Neutral Citation Number: [2008] EWCA Civ 1169



Case No: C5/2008/1744

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON 
APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL 
[AIT No: HX/44402/2001/2001]



Royal Courts of Justice
Strand, London, WC2A 2LL



10th October 2008

B e f o r e :

LADY JUSTICE ARDEN  DBE
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Between:


DK (IRAQ)

Appellant


- and -




SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent

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____________________

Ms S Knights (instructed by Messrs Luqmani Thompson & Partners) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED. 

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HTML VERSION OF JUDGMENT

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Crown Copyright ©

Lady Justice Arden:

  1. This is a renewed application for permission to appeal. The appellant is an Iraqi Kurd who came to this country in 1999 at the age of eighteen and claimed asylum. He alleged that he had a fear of persecution, for the purposes of the Refugee Convention, arising out of a blood feud with the Rash family and that this dispute went back over many years.

  1. His case was that his father was regarded as responsible for killing a Mr Rash and in 1990 his father was killed by Iraqi security forces on the grounds, as he, the appellant, believed, that he, his father, had been responsible for the death of Mr Rash, who had been an agent of the Iraqi government. That was his case. In the following year, on his case, the Rash family attempted to avenge the death of Mr Rash by attempting to kill the appellant and his uncle, and this occurred by way of a shooting when he was in a taxi. That took place in 1998. He reported the incident to the police, who investigated the matter but said that they could not provide 24 hour protection; and although they had evidence of identification they did not find the person who the appellant said had shot at him.

  1. The Secretary of State refused the application for asylum. The appellant appealed. The adjudicator found that the appellant was a credible witness but concluded that there was no persecution for Refugee Convention purposes and the appeal was dismissed. The matter subsequently came to this court, and this court allowed an appeal and it remitted the matter back to the tribunal. It did so on a very specific basis which is set out more fully in the judgment of Brooke LJ. At paragraph 28 of his judgment Brooke LJ said:

"The matter must be remitted to the AIT for reconsideration on the basis that the adjudicator's findings of fact in relation to DK's story must stand and the Refugee Convention appeal and the human rights appeal must be reconsidered on the basis of up to date evidence about the situation in the Kurdish part of Iraq."

So the matter went back to the tribunal and this court now has an application for permission to appeal, the AIT having refused permission to appeal to this court.

  1. The tribunal held that there was no real risk of persecution and that, in any event, the appellant could relocate either within KRG or within the rest of Iraq. The first point taken by Ms Samantha Knights for the appellant is that the order for remission did not include the question of relocation, but both sides dealt with that matter without taking any objection before the tribunal. In my judgment relocation must have an issue been before the tribunal because it was a consequence of the remission to the tribunal. The remission was on the basis of up-to-date evidence about the situation in the Kurdish part of Iraq, but it was as a consequence of hearing the human rights appeal that it became relevant to consider the situation in other parts of Iraq as well and both parties proceeded on that basis before the tribunal. I do not think that it is possible to argue that issues of relocation were not before the tribunal.

  1. Now I am going to deal with the question of risk. The position is in short and I take it very shortly. The tribunal's reasoning proceeded in stages. They said that there was limited evidence of blood feuds now in KRG and that, in any event, given the passage of time it was unclear whether the feud continued, and it had not been shown the matter could not be resolved by mediation, and finally that there was sufficient state protection. Now on each of those matters Ms Knights submits that the tribunal had not properly engaged with the evidence before it, and she has taken me to various parts of the evidence. When the matter came before Keene LJ on the papers he refused permission on the basis of the evidence of Dr George, and he said that the way in which the tribunal had dealt with that evidence was not perverse and therefore there was no question of giving permission to appeal on the question of risk.

  1. The points before me have been of a wider nature and it is for that reason that I have indicated that I would give permission to appeal on this aspect of the case. I will take the points briefly. On the question of whether there was limited evidence of blood feuds, there was evidence in terms of the operational guidance note, the ECRE guidelines and the evidence of Ms O'Shea. Although it was expert evidence as of July 2001, she gave clear evidence that there was a culture of blood feuds in Iraq and there is no suggestion that the position had changed by the date of the hearing before the tribunal. On the question of the passage of time the tribunal said that it was unclear whether the blood feud in this particular case still existed, but there was strong evidence, including in particular from Ms O'Shea, that blood feuds in Iraq do persist over verymany years and even over generations, it appears, and this evidence does not appear to have been addressed. On the question of mediation, I should make it clear that there are two ways in which blood feuds can be resolved, either by a further killing or by a mediation between the two families, but in this case there are difficulties. I need only refer to one of those difficulties. There was, on the evidence of Ms O'Shea, a political dimension in this case because the two families belonged to different political parties and in her opinion that made it extremely difficult if not impossible to have a mediation. That evidence has not been addressed by the tribunal. On the question of protection there was evidence of course that the police had been unable to protect the appellant at the time, or indeed other members of his family, and there was also evidence from Ms O'Shea and evidence from ECRE which needed to be engaged, on Ms Knights' submission. In my judgment there is sufficient for me to give permission to appeal on the question of risk.

  1. The question then is whether I should also give permission to appeal on the issue of relocation. Now, the position here is slightly more complicated. In her skeleton argument Ms Knight said that this matter should be stood out, pending the test case of KH (Iraq) [2008] UKAIT 00023. That case has not proceeded, but it concerned Article 15(c) of the EC qualification directive which is the subject of a reference to the Court of Justice in Luxembourg. The opinion of the Advocate General has just been published and it discloses that, in the opinion of the Advocate General, Article 15(c) confers additional protection.

  1. Ms Knight submits today that I should give permission on the relocation issues and that the matter should proceed, but in the light of the change in her position and in the new opinion of the Advocate General and on the basis of her submissions that KH is not directly applicable here, what I propose to do is to give her liberty within fourteen days to make an application that, contrary to paragraph 5 of her full skeleton argument, the matter should be considered now. Subject to that application, in my judgment the right order to make would be permission to appeal on the risk issues and then stand over the question of whether permission should be given on the relocation issues, to either the court hearing the appeal on risk or the conclusion of the case which is likely to be brought in this court as a test case following the Court of Justice's judgment in the case on Article 15(c).

  1. So that gives Ms Knight the possibility of persuading me that the whole appeal should proceed together, irrespective of KH and the case in the Court of Justice, which is called Elgafaji v Staatssecretaris van Justitie (the Deputy Minister of Justice) Case 465/07; but if I am not persuaded then the matter will be dealt with in the way that I have suggested.

Order: Application granted in part