BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]

Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ibrahim, Re Application for Leave to Appeal [2007] ScotCS CSIH_29 (20 April 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_29.html
Cite as: [2007] CSIH 29, [2007] ScotCS CSIH_29

[New search] [Help]

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Macfadyen

Lord Wheatley

Lord Mackay of Drumadoon

 

 

 

 

 

 

[2007] CSIH 29

XA95/05

 

OPINION OF THE COURT

 

delivered by LORD WHEATLEY

 

in

 

APPLICATION FOR LEAVE TO APPEAL TO THE COURT OF SESSION

 

under section 103B of the Nationality Immigration and Asylum Act 2002

 

by

 

SAEED MOHAMMED IBRAHIM

Applicant

 

against

 

A decision of the ASYLUM AND IMMIGRATION TRIBUNAL dated 23 August 2005

 

_______

 

 

 

Act: Forrest; Livingstone Brown

Alt: Lindsay; Solicitor to the Advocate General

 

20 April 2007

 

[1] The appellant is a citizen of Iraq, who arrived in the United Kingdom on 14 July 2000. In 1993 a man named Omer Hamakiki, who was a member of an organisation called the Patriotic Union of Kurdistan (the "PUK"), murdered the appellant's uncle, Mulla Omer. Together with the Kurdistan Democratic Party (the "KPD"), another organisation operating in that part of Iraq, the PUK are in effect responsible for much of the government of the Kurdish Autonomous Area (the "KAA") in Northern Iraq where the appellant comes from. Omer Hamakiki was also a member of the Jaff tribe which is powerful and has significant influence with the PUK, with which organisation it has many common members. In June 2000, Aso Omer, who was the son of Mulla Omer, who was the appellant's cousin, was staying with the appellant. One day, Omer Hamakiki passed the appellant's place of business, and as he did so the appellant's cousin killed him in circumstances where it appears clear that the appellant was also present. Both the appellant and his cousin thereafter immediately made off, but the cousin was apprehended on the next day by the PUK, and was immediately handed over to relatives of Omer Hamakiki, who were members of the Jaff, who summarily executed him on the following day. The appellant's brother, who does not seem to have been present at the time of the murder, was also apprehended, but subsequently released. The appellant's position is that, although he is innocent of the murder of Omer Hamakiki, he is apprehensive that should he return to Northern Iraq he will be apprehended by the PUK and that he too would be handed over to the Jaff and meet the same fate as his cousin. He was satisfied that he will not receive the necessary degree of protection from retribution by the Jaff. He also contends that it is a matter of some significance is that, following his departure from Iraq, the PUK issued what appear to be accepted as warrants for his apprehension, with a view to putting him on trial for complicity in the murder of Omer Hamakiki.

[2] On his arrival in the United Kingdom, the appellant applied to the Secretary of State for the Home Department for asylum. His application was refused. The applicant sought leave to appeal to an adjudicator, who upheld the Secretary of State's decision on 11 December 2005. The appellant was granted leave to appeal to the Immigration Appeal Tribunal on 26 June 2004, and his appeal was conjoined with two other similar appeals. The Immigration Appeal Tribunal dismissed the appellant's appeal on 28 June 2005. Leave to appeal against that decision was refused by the Tribunal on 23 August 2005, and it is against that decision that the present appeal is taken. In essence the basis of the appellant's first stated ground of appeal is that the Tribunal erred in law in holding that there was no arguable error of law in its conclusion that the appellant did not face a real risk of persecutory ill-treatment or breach of his human rights on his return to Iraq. Further, the appellant claims in his second ground of appeal that the Tribunal erred in holding that there was no arguable error of law in concluding that if there was a risk to the appellant on his returning to Iraq, there would be a sufficiency of protection available to him from the relevant authorities there.

[3] In considering the appeal, the Tribunal had at its disposal a number of documents. The adjudicator in his determination and reasons had found that the appellant was a credible and consistent witness, and that he had produced documents which confirmed his account of what had happened to him. In particular, the adjudicator accepted the appellant's evidence that he was not involved in the murder. He also accepted that the appellant fears persecution by the deceased's family and the Jaff because the PUK will not be able to protect him. The appellant made it clear to the adjudicator that he did not claim that he would be persecuted by the PUK, but the adjudicator accepted that there was a risk that the deceased's family would retain an interest in the appellant, presumably with a view to exacting some form of revenge for the murder of Omer Hamakiki. However, the adjudicator noted that there was political will within the PUK and the KDP to address the issue of honour killings and to do something about them, and that sanctions against those who commit such murders might now be regarded as more effective. Accordingly, although the adjudicator had some reservations about the efficacy of the protection that might be available throughout the KAA for someone in the appellant's position, and that such protection would be limited, he concluded that there would be a sufficiency of protection for the appellant should he return to the area controlled by the PUK. In particular he concluded that the appellant could seek the protection of the PUK and that they would be willing to protect him.

[4] The Immigration Appeal Tribunal agreed in principle with the adjudicator's decision. They considered expert evidence from Dr. Fateh and Ms. Laizer, both specialists in Middle East, and especially Iraqi, affairs, and their reports were also before the Tribunal. Ms. Laizer informed the Tribunal that the appellant was not affiliated to any particular tribe. The Tribunal also considered the Dutch Official General report on Northern Iraq dated April 2000. This report noted, among other things, that in Northern Iraq and Kurdistan, blood feuds and practices are settled by people taking the law into their own hands, although blood feuds were now less common. The report also noted that the PUK and the KDP cannot always provide effective protection against such vendettas, which sometimes cost lives. Efforts were currently being made in terms of the report to resolve such feuds by peaceful means.

[5] Having considered these various documents and testimony, the Tribunal, relying particularly on the Dutch Official 2000 Report, came to the conclusion that they did not consider that the appellant faced a real risk of persecutory ill-treatment should he return to Northern Iraq (paragraph 303). They noted that the Jaff Tribe which posed the potential problem was by general agreement powerful, and a major force in the PUK. The man killed by the appellant's cousin was clearly of some influence in the PUK. It was accepted that the PUK had issued what were effectively arrest warrants against the appellant which would be exercised on his return to Iraq. It was in particular observed that the appellant did not claim to fear persecution by the PUK, but rather by the Jaff, who would, in his view, be determined to kill him. It was noted that the appellant's cousin had killed Omer Hamakiki some years after Mr. Hamakiki had killed the cousin's father, and that the appellant's brother, who appeared to be wholly uninvolved in the killing, had been arrested and subsequently released. It is unclear exactly what inference, if any, the Tribunal drew from this latter consideration.

[6] The Tribunal provided three specific reasons for their conclusion that the appellant would not face any risk of persecution should he return to Iraq. The first was that the appellant was not affiliated to any tribe, and a consequence of this was that any affront to the Jaff tribe would not be of the same order had a member of a similar tribe killed one of its own members. While it is clear that there was evidence that the appellant was not so affiliated, particularly from Ms. Laizer, the inference that that would make a revenge killing less likely is not clearly vouched in the evidence, although the extent and nature of any risk to the appellant is a matter on which the Tribunal might reasonably be expected to apply its own experience and rationality. However, this adminicle of evidence does not seem to us to be particularly persuasive in the matter of assessing the risk that the appellant would face of persecutory ill-treatment on his return to Iraq, a view which seems to have been shared by the Tribunal.

[7] The second reason which the Tribunal gave in support of their conclusion that the appellant faced no risk on his return to Iraq was that there had now been two killings on the side of the appellant's family and only one of the Jaff side. The Tribunal seemed to consider that this was an indication that the Jaff's thirst for revenge had been satisfied and that therefore its members would not pursue any feud against the appellant. We find it difficult to understand how this conclusion was reached. A basis for it cannot be found anywhere in the evidence before the Tribunal. It must therefore be the case that the Tribunal reached this conclusion from its own resources. While this can be a legitimate exercise, there has to be some form of justification for the conclusions drawn, and those conclusions have to be in some respect referable to the evidence available to the Tribunal. The fact that the Jaff are a major influence in the PUK, and that the PUK have issued warrants for the appellant's return, would suggest that interest in the appellant by the PUK and the Jaff had not diminished. In these circumstances, it would have been helpful to have a fuller discussion on what lay behind this particular justification for the Tribunal's decision.

[8] However, the principal determinative reason (described as "free-standing" by the respondent's counsel) as to why the Tribunal concluded that the appellant did not face a real risk of persecution should he return to Iraq lay in the issue of warrants by the PUK for the apprehension of the appellant (paragraph 304). The Tribunal concluded that, so far as they were concerned, the issue of these warrants clearly indicated that the PUK had decided that they will deal with the matter of the appellant's complicity in the murder. The Tribunal then go on to note that this decision can hardly have been reached without any involvement of the Jaff, given their power and influence within the PUK. Nonetheless, the Tribunal were satisfied that a decision has been made that the matter will be dealt with by the PUK rather than by the appellant being placed in the hands of the Jaff, or that tribe having the opportunity of getting their hands on the appellant, assuming they retain an interest in his fate. We are not persuaded that this line of reasoning is wholly convincing, although the Tribunal do go on to set their decision in this respect against the background that they also accept that the PUK operates a judicial system of some independence in the area under their control.

[9] However, we have come to the view that this conclusion by the Tribunal is flawed in one significant respect. In reaching their view that the appellant could safely return to Northern Iraq in the face of competing submissions on that matter, it would appear that the Tribunal has completely failed to take into account the appellant's main argument in support of his contention that it would not be safe for him to do so. At paragraph 248 of the Tribunal's decision it is clear that, in summing up, counsel for the appellant submitted that what had happened to the appellant's cousin was of particular importance. The cousin had been detained by the PUK the day after the killing in 2000, and a day later he was dead at the hands of the Jaff. That experience seems directly to contradict the reasoning adopted by the Tribunal in reaching their conclusion that the appellant did not face any risk on his return, and the evidence about what happened to the cousin was uncontested. In properly considering the risks to the appellant should he be returned to Northern Iraq, therefore, the Tribunal had a duty to consider what in fact had happened to the appellant's cousin, and decide what effect this had on their assessment of the risk that might await the appellant should he return home. Although what happened to the appellant's cousin is only one issue in a lengthy, detailed, and useful determination by the Tribunal, we have come to the view that it is of sufficient significance to cast doubt on the validity of the Tribunal's conclusion on the fate that may await the appellant should be return. In that respect, therefore, the Tribunal's decision can be described as unreasonable.

[10] In these circumstances it is unnecessary to consider the question whether, given such a risk exists, the protection available to the appellant by the State against persecutory ill-treatment by non-State agents (namely the Jaff tribe) would be sufficient. As is often the case in matters of this sort the issues which determine whether or not there is a risk of persecutory ill-treatment are inextricably bound up with the question of whether there is adequate provision to protect against that risk. In the present case the considerations which affect each of these issues are almost identical. The risk to the appellant is not that he would be apprehended by the PUK in execution of the warrants they have issued, but that the PUK would thereafter hand him over to the Jaff. The question of sufficiency of protection depends therefore on whether the PUK would be able to insist that they retain control of any process that follows on from the appellant's apprehension, and do not find themselves constrained to hand the appellant over to the Jaff. It is in this respect that the history of what happened to the appellant's cousin is again of considerable significance. Finally, we should make it clear that in this appeal the question of internal relocation, should the risk of persecutory ill-treatment to the appellant be established, and the protection available against that risk being found to be inadequate, was not dealt with in the course of the hearing. Counsel for the respondents conceded that the matter had not been put before the Tribunal, and therefore could not be raised now.

[11] In these circumstances we are minded to set aside the decision of the Tribunal dated 23 August 2005, refusing the appellant leave to appeal against the decision of the Tribunal dated 28 June 2005, in terms of section 103B(4)(b) and (c) of the Asylum Immigration (Treatment) Etc. Act 2004. We accordingly remit the case back to the Tribunal for reconsideration by a differently constituted Tribunal. For the avoidance of doubt, we consider that the question of whether there is a risk of persecutory ill-treatment to the appellant should he return to Iraq, the sufficiency of the protection available to him, should that risk be established, and the matter of internal relocation should that protection appear to be inadequate, should all be considered by the reconstituted tribunal.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_29.html