Case No: C5/2007/2382
Neutral Citation Number: [2008] EWCA Civ 468
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: AA/02330/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 8th April 2008

Before:

LORD JUSTICE LONGMORE

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Between:

	KJ (IRAN)	Appellant
	
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THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT	

Respondent	

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Ms G Brown (instructed by the Immigration Advisory Service) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Longmore:

1.	This is an application for permission to appeal advanced shortly and effectively by Ms Grace Brown in relation to a doctor from Iraq who has converted from the Sunni Muslim religion to Christianity.  He was born on 25 October 1978.  He joined the Ba’ath Party in 1994.  In June2000 he graduated from the University of Iraq with a degree of MBChB.  In 2002 he converted to Christianity and in the course of 2004 he visited his mother and sister, who are in the United Kingdom.  
2.	He claimed that between 25 October 2004 and 15 May 2005 he had been arrested and detained on five occasions and tortured on three occasions but his credibility on that matter was not accepted by the Tribunal.  On 20 June 2005 he travelled to Oman with a view to obtaining a UK visitor’s visa.  On 11 July 2005 he arrived in the United Kingdom and was granted leave to enter as a visitor.  On 7 December 2005 he claimed asylum, saying that he had not claimed it before because he wanted to wait and see how things developed in Iraq and by December, he said, he realised he would face persecution if he returned.  
3.	The Home Secretary refused his application on 2 February 2006.  He appealed to the AIT and in a decision of 11 April 2006 Immigration Judge Forrest allowed his appeal on the basis that Sunni Muslims were now a persecuted minority in Iraq.  The Home Secretary applied for that matter to be reconsidered and in due course Senior Immigration Judge Gill made an order for reconsideration on the basis that there was the possibility that even if the applicant would face persecution in central or southern Iraq he could relocate to the north.  
4.	The matter then went before Senior Immigration Judge Nichols and Immigration Judge Hall, who on 2 May 2007 issued their pink form, saying that there had been an error of law on the part of Immigration Judge Forrest in relation to his failure to consider returnability to the northern part of Iraq, but they said that the findings of absence of credibility and indeed the finding that the applicant was a Christian, a convert from the Muslim religion and that he was a doctor were, however, to stand.  
5.	The matter then went before the AIT, in the form of Senior Immigration Judge Lane and Immigration Judge Halliwell, who on 21 June 2007 decided that the applicant could relocate to the northern part of Iraq and specifically to the Kurdish autonomous region, referred to in the papers as “the KRG”, because he would be likely to be admitted there as a doctor despite the fact that he was a convert from the Sunni Muslim religion and despite the fact that he was a returnee. 
6.	The applicant was refused permission by the Asylum and Immigration Tribunal itself to appeal to this court and there is now an application for permission to appeal, the substantial ground of which is that the Tribunal should not have departed from the decision of the AIT in NS (Iraq: perceived collaborator: relocation) Iraq CG [2007] UKAIT 00046.  That decision decided, among many other things, that ability to relocate in Iraq to the KRG was in general only feasible if the person concerned would be allowed to enter and legally reside in the area of relocation and had family, community and or political links there enabling them to survive.
7.	Richards LJ considered the matter on paper and said the Tribunal had proper regard to the Country Guidance case of NS and gave a properly reasoned and rational basis for concluding, on the evidence before it and by reference to the applicant’s particular circumstances, that the applicant could relocate to the north of Iraq.  The reason why Richards LJ came to that conclusion was because NS did not specifically refer to the position of doctors and other medical practioners in its reasoning, whereas before this Tribunal there was, on the contrary, considerable evidence about the need for, and the reception of, doctors in the KRG.
8.	Ms Brown has renewed the application before me today and she has pointed out that in paragraphs 11 to 16 of the determination the Tribunal relied on various documents which were said to have been produced by the representative of the Home Office only on the morning of the hearing rather than the documentation relied on in NS.  That is true to a limited extent but the fact is that although that complaint is made, the whole case was presented by Mr Dillane, who was then representing the applicant to the Tribunal, on the basis, as recorded in paragraph 27 of the decision, that although the Kurds are crying out for doctors, they would not want a person with a background of the appellant who had been a member of the Ba’ath Party, albeit that the appellant did little in relation to that position.  That submission was undermined by the appellant’s own evidence and, as the Tribunal pointed out in paragraph 41, it was a precondition of becoming a doctor in the time of Saddam Hussein that doctors should belong to the Ba’ath Party.  
9.	Moreover the Tribunal had before it a County of Origin Information Report on Iraq of 30 April 2007 in which it was said that some internationally displaced persons were indeed offered employment by Kurdish officials and specifically doctors and dentists in the health sector were mentioned in that report.  And in paragraph 17 of that decision the AIT also refer to an article from Voice of America News, which was actually in the appellant’s own objective bundle of evidence, called “Iraqis Flee to Kurdish North in Search of Safety”, dated  6 June 2007, and the Tribunal’s recitation of the contents of that report ends with the words: 
“In general, Kurdish officials say they let in professional workers, such as doctors and engineers, or those who can have a local resident vouch for them.”

10.	It can be seen that there was a considerable amount of material before the Asylum and Immigration Tribunal in relation specifically to doctors and, as I have said, the case was presented on the basis that although the Kurdish region was in fact crying out for doctors, nevertheless this doctor would not be admitted. 
11.	In the light of the way things developed in front of the Tribunal, it is not at all surprising that they came to the conclusion that they did that the likelihood was that KJ would, in fact, be admitted to the Kurdish autonomous region.  So I find myself agreeing with Richards LJ in his paper refusal.  However, Ms Brown had one further shaft to her bow.  She has produced two documents, which are new documents, in relation to the possibility of settling in the KRG.  The contents of the documents are the same and so it is sufficient to refer to the document of February 2007 from the Immigration and Nationality Directorate to the Refugee Legal Centre, which sets out the Directorate’s then understanding of the criteria used for identifying suitable Iraqi nationals for enforced return and that sets out a number of criteria including this:
 “Subjects must originate from Sulaymaniya, Dohuk or Erbil governorates in northern Iraq.  The KRG authorities will only accept someone who originates from or has strong connections with the area, i.e. lived and worked there.  If the information we have is that they originate from an area outside of the three governorates listed above and merely spent three or four years in one of the above governorates before leaving Iraq, they should be excluded.  Please note that Kirkuk, Mosul and Makhmur are not part of the KRG area.”

12.	So one asks oneself whether, if that information had been before the Tribunal that would have made any difference to their conclusion, but the answer must be no because that document preceded the documents I have already referred to of 30 April and 6 June 2007, which the AIT were, in my judgment, entitled to proceed upon.  As so often happens, of course, counsel in this court seek to put the case in a slightly different way from the way in which it was put before the original Tribunal and whereas sometimes that may be a useful way of proceeding one has to very cautious.  It is clear, to my mind, as I say, the matters in issue were really those set out and which I have already identified in paragraph 27 of the decision and the Tribunal came to a decision which was open to them and certainly one which had no error of law.  In those circumstances it would not be a profitable exercise for me to give permission to appeal and the application must be refused.
Order: Application refused