The decision


Mr. A Sheikh, a Senior Home Office Presenting Officer, appeared on behalf of the Appellant . Mr. N. M. Shoffa, a Solicitor’s Clerk, appeared on behalf of the Respondent.


1. The Appellant is the Secretary of State for the Home Department. The Respondent is a citizen of Iraq from Mosul, in what was, until comparatively recently the Saddam Hussein government controlled area of Iraq.

2. The Appellant appeals against the decision of an Adjudicator, Mr. D. N. Mallinson who in a determination promulgated on 13 February 2003, following a hearing at Birmingham on 27 January 2003, allowed the appeal by the Respondent against the decision of the Appellant, taken on 17 July 2001 to direct his removal after refusing asylum.

3. The Respondent claimed to have arrived in the United Kingdom clandestinely on 18 February 2000 and applied for asylum on the same day. The Respondent’s removal directions were to Iraq, but it is clear from the Adjudicator’s determination (see paragraph 39) that an undertaking was given on behalf of the Appellant that the Respondent would only be returned to the Kurdish autonomous area of Iraq and not to a part of Iraq controlled by the government of Saddam Hussein. The Adjudicator allowed the appeal on the basis that the Respondent was from Mosul, in the Saddam Hussein government-controlled area of Iraq and according to a Home Office Operational Guidance Note which was before him (dated October 2002), the authorities in the Kurdish autonomous area had made it clear that they would only readmit to the territory they control those who could show that they were previously resident there. The Operational Guidance Note said, ‘internal flight for other Iraqis to the KAA is not therefore a viable option’. The Adjudicator rejected most of the Respondent’s account, and gave reasons why he did not believe there to be a reasonable likelihood that he had been arrested, detained and imprisoned as he had claimed. However, the Adjudicator believed that as a failed asylum seeker, this Respondent would be at risk of persecution on return to the Saddam Hussein controlled area of the country. In the light of the Home Office operational guidance note, Mr. Mallinson concluded that the Respondent could not be returned to the Kurdish autonomous area because he would not be readmitted there.

4. The grounds of appeal assert that the Adjudicator concluded that it would be unduly harsh or unreasonable to expect the Respondent to relocate to the Kurdish autonomous area. It refers to an Operational Guidance note of February 2003 which, it is said, no longer includes the advice the Adjudicator drew from the previous operational guidance note. A Country Information Policy Unit run bulletin of February 2003 relates a different situation and paragraph 6.6 of that bulletin shows that Kurds do sometimes move voluntarily from the central part of Iraq to the Kurdish autonomous area.

5. The Tribunal drew Mr. Sheikh’s attention to the judgement of Schiemann LJ in Oleed v the Secretary of State for the Home Department [2003] INLR 189, where he said:-

‘Mr. Wilkin submitted, as I understood him, that even if we were to allow the appeal and quash the decision of the Tribunal, the effect of that would be to revive the appeal before the Tribunal. He submitted that the situation was changing in Sri Lanka and that it would be useful for the Tribunal to consider the position in the light of the present day position.

‘It might well be useful but I do not consider that it would be a proper use of this Court’s powers now to send the case back to the Tribunal. The powers of this court are set out in Civil Procedure Rules 1998, R52.10. We have all the powers of the lower court. We may set aside or vary any order made by the lower court. Those provisions give us the power to allow the appeal from the Tribunal, set aside its determination, substitute a determination dismissing the appeal from the Adjudicator and thus restore his determination. The present is, in my judgement, an appropriate case in which to exercise that power. I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of its determination. However, in the present case in my judgement there is nothing wrong with the Adjudicator’s determination, there was therefore, no reason to appeal it, and it would be wrong for the Home Secretary, on the back of an appeal which has been dismissed, to seek to re-examine the threat to the refugee with reference to a date later than the Adjudicator’s determination. To permit this would merely encourage appeals by a party who has no ground for appeal but hopes that the situation would change sufficiently to enable him to advance different arguments on different facts on appeal. Such procedures would not be in anyone’s interests’.

6. Mr Sheikh submitted that the Adjudicator was wrong to decide that it would be unduly harsh to find that the Respondent could not relocate. On the basis of the decision of the Court of Appeal in Ravichandran [1996] Imm AR 97, there would be no risk to the Appellant today.

7. We indicated to Mr. Shoffa that we did not need to hear from him and reserved our determination.

8. We have decided that we must dismiss this appeal. Mr Sheikh, to be fair to him, displayed no great enthusiasm for his argument, which, we believe was flawed. It is of course the duty of an Adjudicator when deciding an asylum appeal to assess the risk of persecution facing an Appellant as at the date of the hearing. However, this Adjudicator did not consider that it would be unduly harsh for this Respondent to relocate. What he did, was to quite properly look at the objective evidence and conclude that since this Respondent had never lived in the Kurdish autonomous area, on the basis of the evidence before him taken from the Home Office Operational Guidance Note, it was clear that there was no internal flight option available to the Respondent in the Kurdish autonomous area because the authorities there would not admit him unless he could show that he had previously lived there. There was no evidence before this Adjudicator that the Respondent had previously lived in the Kurdish autonomous area.

9. We accept that evidence which came to light within what can only have been a matter of weeks, disclosed that the situation was not as it had been described in the Operational Guidance Note of October 2002, but there was no available evidence before this Adjudicator to indicate that the situation had changed, and the only evidence before Mr. Mallinson was that this Respondent would not be permitted to enter the Kurdish autonomous area. The Appellant’s own Operational Guidance Note reported that “internal flight…is not therefore a viable option”.

10. We believe that the Tribunal would be wrong to interfere with the Adjudicator’s findings since they were not plainly wrong or unsustainable or perverse. On the evidence before him, the Adjudicator was entitled to reach the conclusion he did. The situation in Iraq has, of course, changed dramatically since 27 January last when this appeal was heard by Mr. Mallinson, but that, of itself, does not entitle the Tribunal to interfere with his decision.

11. For all these reasons we dismiss this appeal.

Richard Chalkley
Vice President