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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AO (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 1637 (30 November 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1637.html Cite as: [2010] EWCA Civ 1637 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE BURNETT)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ELIAS
and
MR JUSTICE NORRIS
____________________
AO (Iraq) |
Appellants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr Sarabjit Singh (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Elias:
"9. As this suggests, the Directive brings together classical Geneva refugee status with what it calls subsidiary protection status. The latter status has broadly two sources. One is the obligation assumed by all EU member states as part of the Council of Europe to give effect to the rights contained in the European Convention on Human Rights and Fundamental Freedoms – essentially rights of non-refoulement for individuals who cannot establish an affirmative right to asylum. The other is the humanitarian practices adopted by many EU states, the UK included, towards individuals who manifestly need protection but who do not necessarily qualify under either convention. Among these are people whose lives or safety, if returned to their home area, would be imperilled by endemic violence."
Of specific relevance to that protection is Article 2 of the Directive, which provides that:
"'person eligible for subsidiary protection' means a third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin … would face a real risk of suffering serious harm as defined in Article 15 … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country."
The definition of serious harm in Article 15 then includes at Article 15(c):
"… serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
"...where the degree of indiscriminate violence characterising the armed conflict taking place -- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred -- reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive."
The principles enunciated in Elgafaji were then further developed by this court in QD, the case to which I referred.
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Second, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
The Active War Zone Policy
"enforcement action should not be taken against nationals who originate from countries which are currently active war zones. Country Information Policy Unit (CIPU) or Enforcement Policy Unit (EPU) will provide advice on this"
That policy was formally withdrawn on 14 January 2008, although as Sedley LJ indicated when giving the leading judgment in SSHD v HH (Iraq) [2009] EWCA Civ 727, the policy had not been applying, and indeed lay unnoticed for a number of years, although it was identified on the UK Border Agency website, and attention was also drawn to it in one of the leading textbooks on immigration law, MacDonalds Immigration Law and Practice. It was withdrawn once it had been drawn to the Secretary of State's attention that it was formally in existence. The Secretary of State when withdrawing the policy explained that its original intention had been to ensure that individuals were not sent into an environment where as a result of armed conflict, they would face unacceptable danger. It was assumed that following the Human Rights Act, and in particular as augmented by Article 15(c), to which I have made reference and which provided humanitarian protection to those who might be caught up in areas of endemic violence, that it was no longer necessary to have this specific policy, since individuals would be protected by that provision in any event. The appellant submits that the policy was, however, still in effect, and the Secretary of State had failed to have regard to it when he was making the decision whether or not to deport the appellant.
"...it has been known for many years that the Home Office, for entirely intelligible reasons, does not return foreign nationals to parts of countries where war is raging or uncontrolled violence is endemic … What undoubtedly can be said is that since the coming into effect of the Qualification Directive, the practice of the UK and many other European states in this regard has in large part acquired the force of law."
Sedley LJ made a similar observation in the paragraph in QD (Iraq) to which I have made reference above.
"A reasonable understanding of the policy could not interpret it as prohibiting enforcement action against a national simply because part of his home country might properly be considered a war zone, when safe return to other parts of the country was possible. On the contrary, what the policy was concerned with was the return of an individual to an environment which would, without more, place the person concerned at risk to his life or person."
"Generally the reports of tension and security breaches in Iraq do not demonstrate that there would be a consistent pattern of gross and systematic violation of rights under Article 3 ECHR. The current evidence also does not suggest that the level of violence and insecurity in Iraq amounts to a serious risk of unlawful killing. Moreover, as highlighted in the country guidance case of KH [2008] UKAIT 00023, in no part of Iraq are levels of
indiscriminate violence such that they place all civilians at individual risk. Therefore in the absence of a heightened risk specific to the individual, an ordinary Iraqi civilian from any part of Iraq will generally not be able to show that they qualify for humanitarian protection on the basis of indiscriminate violence and so a grant of Humanitarian Protection in such cases is unlikely to be appropriate."
One might have thought that, having reached that conclusion, the judge might have gone on to consider whether it was possible to return this appellant to a safe zone. I do not intend to criticise the judge, however, for not addressing that issue; we were told that it was not a question raised before him. It appears that he was certainly under the impression that the appellant's argument was that once any part of the country was a war zone as defined, then this meant that the appellant could not be returned to any place in that country, whether it was caught within the war zone area or not. The judge, it seems to me, was simply rejecting that submission.
"...we have concluded, in agreement with Collins J, that the statutory regime, including statutory review of a refusal of permission to appeal, provides adequate and proportionate protection of the asylum seeker's rights. It is accordingly a proper exercise of the Court's discretion to decline to entertain an application for judicial review of issues which have been, or could have been, the subject of statutory review."
He then emphasised in paragraph 27, however, that judicial review would be available where justiciable errors were not susceptible to the statutory appeal process.
The grounds of appeal
Mr Justice Norris:
Lord Justice Jacob:
Order: Appeal dismissed.