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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> HM (Policy concessions not Convention recognition) Iraq [2006] UKAIT 00092 (12 December 2006) URL: https://www.bailii.org/uk/cases/UKIAT/2006/00092.html Cite as: [2006] UKAIT 00092, [2006] UKAIT 92 |
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HM (Policy concessions not Convention recognition) Iraq
[2006] UKAIT 00092
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 21 April 2006
Date Determination notified: 12 December 2006
Before
Immigration Judge Dickson
Between
HM | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
DETERMINATION AND REASONS
A claim that the appellant is (or was) entitled to be recognised as a refugee under the Convention has to be distinguished from a claim that the appellant is (or was) entitled under some policy to be treated in the United Kingdom as a refugee. An appellant cannot select elements from those two distinct arguments and combine them into a hybrid claim.
"Jurisdiction
8. The IJ's jurisdiction on appeal extended to a consideration of whether the decision appealed against was not in accordance with the law (s84(1)(e)). Such a jurisdiction extends to consideration of whether or not the Secretary of State's decision was vitiated by errors of public law: DS Abdi v SSHD [1996] Imm AR 148 Court of Appeal. A failure to follow policy (all other things being equal) is plainly a public law error.
Rashid
9. At the time of the initial decision on the claimant's case, the policy articulated in Rashid was in play. At such time, no removals of Kurds were being effected to government controlled Iraq
. In recognition of the well-founded fear of persecution for relevant reasons faced by Kurdish returnees. In those premises, the Secretary of State erred in failing to grant the Claimant refugee status at a time when he took a policy decision to grant the Claimant exceptional leave to remain until he reached majority.
10. In these premises the IJ erred in failing to allow the appeal pursuant to his not in accordance with the law jurisdiction."
"There is nothing wrong with the conclusion that the claimant is not entitled to asylum or that there would be no breach of Article 3 in returning him. He did not raise the point which he now raises under the Robinson principle. He arrived in the UK 17.2.03 and was refused asylum on 12.3.03 on the grounds that he could relocate safely to KAZ. He did not appeal against that decision. The Govt policy not to take that point was changed on 21.3.03. He received ELR as a minor and an extension was refused on 4.8.05. It was that decision which was the subject of the appeal. The Abdi line permits a failure to consider a policy to be an error of law although it is not for the AIT to enforce the policy. The AIT cannot deal with abuse or misuse of power as if it were a JR Court. The Rashid decision was not simply a failure to apply a policy but involved an abuse of power because of the extended duration over which the policy had been applicable to Rashid but had not been applied. The facts are entirely different here in terms of timescale and applying Rashid, an abuse case would be very hard to mount. Yet absent that the only aspect which could be said no to be in accordance with law would be the failure on 12.3.03 to address the policy; this was some two years before the appeal decision. A JR Court might regard there as having been delay in raising the point which could be circumvented were the AIT to broaden its jurisdiction to cover JR matters. However I am satisfied that there is sufficient in the point to make it arguable that it could have an effect upon the outcome. It is a matter which could usefully be dealt with at a senior level upon reconsideration."
1. Before the military action againstIraq
in March 2003, Iraqi asylum seekers from South and Central
Iraq
were normally (perhaps always) granted exceptional leave to remain if they did not establish a claim under the Refugee Convention, because of a number of factors including the severe penalties imposed by Saddam Hussein on those who left
Iraq
illegally. Iraqi asylum seekers from the KAZ who did not establish that they were entitled under the Refugee Convention were normally (perhaps always) granted exceptional leave to remain because of poor humanitarian conditions in the KAZ, or the lack of a practical route for return, or both. (Paragraphs 24 and 26 of Mr Saunders' witness statement).
2. Following the establishment of the KAZ there was some suggestion that the KAZ might provide an internal relocation alternative for asylum seekers from Southern and CentralIraq
. But IND Policy, possibly from the very beginning, and certainly for some years before removals to
Iraq
temporarily ceased on 20 March 2003, was that the possibility of internal relocation to Northern
Iraq
would not be advanced in the case of a person from South or Central
Iraq
, and therefore that asylum would not be refused on the basis of that possibility. (Paragraphs 28 to 34, 48, 61 to 62, 65 and 68 of Mr Saunders' statement). Difficulties have arisen because that policy was, apparently erroneously, not applied consistently.
3. The period of exceptional leave to remain granted to those who were found not to be refugees was, at first, four years. On 20 February 2003 the period was reduced to six months "in view of the uncertain situation surroundingIraq
, in particular the prospect of imminent military action". (Paragraph 64 of Mr Saunders' statement).
4. Independently of any policy specific toIraq
, an unaccompanied minor who claimed asylum but failed to establish entitlement under the Refugee Convention was granted exceptional leave to remain for a period expiring on the day before his eighteenth birthday.
1. By advancing an argument based on the possibility of internal relocation in 2003, the Secretary of State had failed to follow his own policy.
2. The Secretary of State was wrong in his conclusion that the appellant was not entitled to refugee status for lack of a Convention reason for the feared persecution.
3. Therefore, the Secretary of State should have recognised the appellant as a refugee, by reaching the right answer on Convention reason and by ignoring any question of internal relocation. His failure to recognise the appellant as a refugee in 2003 amounted to "conspicuous unfairness". The decision to remove him in 2005 was therefore not in accordance with the law, because it could be made only in the context of an unfair refusal of refugee status in 2003.
4. Strictly in the alternative to 3, if the Secretary of State was entitled to refuse to recognise the appellant as a refugee in 2003, he ought to at least to have granted him exceptional leave to remain on the same basis as he would have granted it to any other Iraqi asylum claimant. The grant, being after 20 February 2003, would have been of six months leave, which would, in Mr Seddon's submission, be "on a 'risk' basis i.e. not simply on the grounds of age". The failure to grant such leave means that the appellant has been treated unfairly and he is entitled to be replaced in the position he should probably have been in. That means that he should be treated as having been granted exceptional leave to remain on a "risk" basis, and should now be permitted to make an application to extend that leave, as though the leave had been granted and the application had been in time. In this case too the 2005 decision to remove was a decision which was not in accordance with the law because the appellant's lack of leave again results from a faulty decision in 2003.
C M G OCKELTON
DEPUTY PRESIDENT
Date: