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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ahmed, R (on the application of) v Asylum Support Adjudicator & Anor [2008] EWHC 2282 (Admin) (02 October 2008) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2008/2282.html Cite as: [2008] EWHC 2282 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen on the application of Mohammed Kareem Ahmed |
Claimant |
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- and - |
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Asylum Support Adjudicator |
First Defendant |
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Secretary of State for the Home Department |
____________________
The First Defendant was not present and was not represented
Elisabeth Laing QC (instructed by Treasury Solicitor) for the Second Defendant
Hearing dates: 23 July 2008
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Crown Copyright ©
Mr Justice Silber:
I. Introduction
II. The Facts
III. The Statutory Framework
"4. (2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if-
(a) he was (but is no longer) an asylum-seeker, and (b) his claim for asylum was rejected.
. . .
(5) The Secretary of State may make regulations specifying criteria to be used in determining-
(a) whether or not to provide accommodation, or arrange for the provision of accommodation, for a person under this section;
(b) whether or not to continue to provide accommodation, or arrange for the provision of accommodation, for a person under this section."
"3 (1) Subject to regulations 4 and 6, the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act in respect of a person falling within section 4(2) or (3) of that Act are-
(a) that he appears to the Secretary of State to be destitute, and
(b) that one or more of the conditions set out in paragraph (2) are satisfied in relation to him.
(2) Those conditions are that-
(a) he is taking all reasonable steps to leave the United Kingdom or place himself in a position in which he is able to leave the United Kingdom, which may include complying with attempts to obtain a travel document to facilitate his departure;
(b) he is unable to leave the United Kingdom by reason of a physical impediment to travel or for some other medical reason;
(c) he is unable to leave the United Kingdom because in the opinion of the Secretary of State there is currently no viable route of return available;
(d) he has made an application for judicial review of a decision in relation to his asylum claim . . .;
(e) the provision of accommodation is necessary for the purpose of avoiding a breach of a person's Convention rights, within the meaning of the Human Rights Act 1998."
"69…by introducing the hard cases scheme the Home Secretary has himself recognised that common humanity requires that even failed asylum seekers, who are prohibited from working and have no other avenue of support, and have good reason not to return to their own countries, must be provided with the essential basics of life."
(a) considering asylum, human rights and related claims by the Secretary of State, with a right of appeal in appropriate cases to an independent, specialist tribunal, the Asylum and Immigration Tribunal ("the AIT") and then again in appropriate cases through the courts;
(b) supporting asylum-seekers while their claims are being considered;
(c) as a general rule requiring asylum-seekers who have exhausted their appeal rights to leave the United Kingdom
(d) providing support for some failed asylum- seekers in the very limited circumstances which are set out in the 2005 Regulations; and
(e) giving support where the failed asylum-seeker makes representations purporting to be a fresh asylum or human rights claim and before the Secretary of State decides whether to accept the representations as such. Support is routinely given in such cases but "it is only in the clearest cases that it will be appropriate for the public body concerned to refuse relief on the basis of the manifest inadequacy of the purported fresh grounds" (per Lloyd Jones J in R( on the application of AW) v Croydon London Borough Council [ 2005] EWHC Admin 2950 {76) but although this judgment was the subject of a successful appeal, there was no appeal against this part of the judgment- see [2007] EWHC Civ 266) (A failed asylum-seeker can bring a "fresh claim" with all the rights of appeal to the Immigration Appeal Tribunal if he or she subsequently is able to rely on matters which are significantly different from material previously considered in that they:
"(a) had not already been considered; and (b) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection" (Immigration Rules paragraph 353).
IV. The Claimant's Case and the Issues.
i) condition (a) ("all reasonable steps");ii) condition (c) ("no viable route"); and/or
iii) condition (e) ("avoiding breach of Convention rights").
"The opinion which, if held by the Secretary of State, automatically satisfies the condition, is that there is currently no viable route of return available. This is not an opinion which is held on an individual basis. Rather this is an opinion held as a matter of policy in respect of a country. I accept that this is the true construction of 3 (2) (c).The opinion to be held is not one which in any way is particular to the applicant" [32].
" a statement of policy that the Secretary of State considers there is no viable route of voluntary return available to the applicant's country of origin." [34].
i) although condition (c) refers to a "the viable route of return" it does not specify return to a particular place rather than to particular country;ii) there is no reason why condition (c) should be construed as referring to return to a particular place rather than a particular country;
iii) an asylum seeker should not succeed in his claim if there is some part of his home country to which he could return from the United Kingdom in safety and at which he could live safely. In other words, does the possibility of internal relocation to a place of safety in Iraq preclude reliance on condition 3 (2) (c)?; and
iv) the evidence does not establish that there is not a "viable route of return" to the claimant's home in Jalawla in the light of for example the material to which I will refer in paragraphs 55 to 57 below.
i) Condition 3(2) (a) ("all reasonable steps") ... "the Condition (a) issue") (paragraphs 25 to 42 below) ); and/ orii) condition 3(2) (e) ("avoiding breach of Convention rights") ("the Condition (e) issue") (paragraphs 43 to 60 below)).
V. The Condition 3 (2) (a) Issue
(i) The approach of the Secretary of State and the ASA
(i) in order to qualify for condition (a) support, it is reasonable for the claimant to have applied for an Assisted Voluntary Return ("AVR");
(ii) Iraqi Country Policy Bulletin of 7 February 2007 paragraph 4.1.11 states that "between 1 April 2005 and 30 September 2006, 2, 52 individuals had taken advantage of Voluntary Assisted Returns and Reintegration Programme run by the International Organisation for Migration ("IOM") and have returned to Iraq. There is no evidence to date of any problem encountered by returnees during their journey to Iraq. Taking into account the general possibility of travelling to Iraq and that a considerable number of people have returned with the assistance of the IOM it is considered that travel from the U K to Iraq is both possible and reasonable"; and
(iii) the Secretary of State was not satisfied that the claimant had taken reasonable steps to leave the United Kingdom as he had not applied to the IOM or provided confirmation that he had been approved under the Voluntary Assisted and Reintegration Programme
"16.There is no evidence before me to demonstrate that the appellant is taking steps to leave the United Kingdom and, indeed, it would be contrary to the case which he states in his grounds of appeal for him to take such steps. The appellant claims (through his representatives) that the circumstances in Iraq are such that he has done as much as he can in order to affect his return albeit that he has not registered with IOM. This matter has already been considered in a similar case decided by the Chief Asylum Support Adjudicator in appeal ASA/06/06/13556 on 26 June 2006. A similar argument was presented upon behalf of the appellant. That decision is persuasive upon me. It was held, in 13556, that the reasonableness of a return to Iraq would already have been established in the course of the rejection of the appellant's asylum claim - the basis of being considered for support under Section 4. Accordingly, an appellant cannot seek to re-open that issue in the context of regulation 3(2) (a). I utilise the words she sets out a paragraph 28 of that decision and which reads as follows:
"in my opinion, the ASA's jurisdiction does not extend to consideration of extraterritorial issues such as the risk posed to individuals on a particular route if and when they leave the UK. If a failed asylum seeker seeks to argue that there exists barriers preventing him from reaching internal safety, where the quality of internal protection fails to meet the basic norms of civil political and socio-economic human rights or where internal safety is otherwise illusory or unpredictable, the correct course of action is for him to lodge a fresh application for asylum and to submit his further evidence in support for consideration by the Secretary of State."
(iii) The Rival Submissions
"37 …points strongly to a construction of condition (c) which permits reliance upon such dangers. It would be not only strange, but unjust, to deny accommodation to a destitute asylum seeker on the ground that other nationals of his country can safely return to their homes and therefore his claim to be different cannot be considered.
38…the 'step' of applying for voluntary return is not satisfied if the voluntary return available would not be by safe route".
(iii) Discussion on the correct interpretation of condition3 (2) (a)
"one of the best ways, I find of understanding a statute is to take some specific instances which, by common consent, are intended to be covered by it." (per Lord Denning in Escoigne Properties Limited v IRC [1958] AC 549, 565-566).
(iv) The consequences if the claimant's construction of condition 3 (2) (a) is correct
"I believe that by informing myself about the mechanics and dangers of voluntary return to my town, and by considering whether to make a voluntary return there, I have taken all reasonable steps to place myself in a position in which I would be able to leave the United Kingdom . The next step would be to make a dangerous journey and I believe that it is not reasonable to expect me to take that step".
"When I realised that I was going to have nowhere to live, I made an application for s.4 support with the help of Refugee Action in Liverpool. In my application, I made it clear that I was destitute, and that I had done everything that I could in order to take reasonable steps towards my voluntary return to Iraq. I think that I went as far as I reasonably could. I sought information from Refugee Action, who helped me access IOM. IOM want people to sign a waiver so that they are not held responsible for their safety, before they join their programme. This made me very nervous. Also, I looked at the information about travelling to my home area of Jalalwala from Baghdad, and it looked very frightening to me. It did not seem at all certain that I would be safe making the journey. Given these risks to my personal safety, I decided that I would not register with the IOM programme"
"After due consideration, and taking the information from the IOM into account, I believe that the journey overland from Baghdad to my town would be dangerous to me."
"We understand that currently, IOM can assist people to return via flights to Arbil, Sulemaniyah, Basra or Baghdad. IOM has told us through a local, sub-contracted agency in Arbit, it can meet returnees at Sulemaniyah or Arbil airports and can assist individuals to apply for ID which they may need in order to pass through checkpoints within the KRA. IOM can organise onward travel in Iraq by booking a local taxi company but it does not provide transport itself. IOM has told us that it can sometimes meet people at Baghdad and Basra airports but often cannot do so because of last-minute safety concerns. .IOM does not have any presence in Kirkuk, Mosul, or any towns except Arbul or Baghdad.
Refugee Action has read the ASA's determination in appeal number ASA/06/03/12859, which suggests that IOM will not return individuals if the route is possibly dangerous. However, IOM has informed us that it is not able to carry out a monitoring role within Iraq, as it has only limited presence in Baghdad and through a sub-contracted local agency in Arbil. As such, it is unable to monitor the safety of onward travel from airports in Iraq for a particular individual, and therefore cannot make an assessment of the safety of return for a particular individual to their home town or village….
For example, when the Secretary of State had agreed that Highway 10 might pose safety risks to returnees, IOM was able to facilitate the transport of individuals along this route if they confirmed that they genuinely wanted to return, and did not hold IOM liable for their safety once across the Iraqi border. Individuals are asked to submit their VARRP form, and sign the papers only after they have considered whether they do want to return by the particular proposed route.
In this case, we understand that the route of return to Jalula would be via Baghdad and then overland from Baghdad to Jalula"
(a) which route from Baghdad to his home town of Jalawala is dangerous and whether there are any other routes available;(b) where on any such route it is dangerous;
(c) why, how and where it is dangerous;
(d) if there is inadequate state protection for the claimant on any such route; and
(e) why internal relocation in Iraq is not available to the claimant.
(v) Conclusion on Condition3 2(a)
VI. The Condition 3(2) (e) Issue
(i) The approach of the ASA
"32. However, these are matters which have already been considered in his asylum claim and which I cannot consider as they relate to a situation which may arise in his country of origin rather than in the UK. In my view, the appellant's situation is capable of remedy. He can avoid the effects of destitution and, in turn, a potential breach of his human rights by contacting the IOM or the Immigration Service with a view to his voluntarily returning to Iraq. In this way he will become eligible for the grant of Section 4 support once again and is free to make a further application for this purpose and as soon as he is minded to take this step".
(ii) The rival submissions
(iii) Discussion
"32 I find] the claimant's] account to be implausible, to have discrepancies and to be inconsistent. I therefore find that [the claimant] is not credible in the core of the claim…
37…I do not find that he is fleeing persecution or that he would be persecuted were he to be returned to Iraq"
"38...I do not accept that should [the claimant] be returned to Iraq, he would face treatment contrary to article 3 of the [ECHR]"
"after due consideration, and taking information from the IOM into account, I believe that the journey overland from Baghdad to my town would be dangerous to me"
"No one shall be subjected to torture or degrading treatment or punishment"
(a) which route from Baghdad to his home town would be dangerous and whether there are any other routes available;
(b) where any on such route it would be dangerous for the claimant to travel;
(c) why it would be dangerous;
(d) even if the route would be dangerous, why or how this fact shows that the article 3 rights of the claimant would be infringed; and/or
(e) if there would be inadequate state protection for the claimant on any such route.
"However, ordinary Iraqis generally use the roads on a daily basis. The roads are less well used at night. The Erbil to Kirkuk road is heavily used and whilst there are occasional incidents, these are few. The roads are generally used for purposes such as deliveries of goods by lorry and van, public transport such as buses, coaches and taxis. Ordinary Iraqis do not consider travel round the country by road so unsafe that they have largely curtailed travel around the country. Travel by road is more difficult and dangerous for people whose countries are participating in international coalition forces in Iraq."
"Kurds are no more likely to have difficulty travelling outside the Kurdish areas than any other section of Iraqi society. Kurds are able to live outside the KRG. Although Kurds have been targeted outside the KRG this is no more so than any other group. Many Kurds live outside the KRG and are well represented in state institutions within Iraq such as the government, the police force and the army."
VII Conclusion