The decision

NA (Oleed - Proper Ambit) Iraq [2003] UKIAT 00148


Date heard: 14 September 2003
Date notified 14 November 2003








1. This case is being reported in order to clarify the proper ambit of the “Oleed point” insofar as it identifies an exception to the Ravichandran principle that the relevant date for assessment of risk in an asylum appeal is the date of hearing.

2. The appellant, the Secretary of State, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr R A Prickett, allowing the appeal of the respondent, a national of Iraq, against the decision to give directions for removal having refused asylum. Mr C Buckley appeared for the appellant. Mr E Waheed of Counsel instructed by Fisher Jones Greenwood appeared for the respondent. To avoid confusion the respondent is hereafter referred to as “the claimant”.

3. The Tribunal has decided to dismiss this appeal.

4. The basis of the claimant`s claim was that he had left Iraq illegally with his mother some 13 years ago when he was 7. The Iraqi government had executed his father because of his association with the Kurds.

5. The adjudicator accepted that the claimant was only 7 when he left Iraq. In the light of the expert evidence from Dr Fatah, he accepted that his account of his father`s membership of KDP and subsequent execution was credible and that it was also likely that upon return the claimant would face difficulties for not having done his military service and because he had left Iraqi illegally.

6. The grounds of appeal maintained that the adjudicator had failed to identify from whom the claimant would have a well-founded fear and had not justified his finding that there was a Refugee Convention reason. They further argued that in view of the finding by the Tribunal in Issa [2002] UKIAT 04759 that Dr Fatah lacked impartiality, he should not have attached as much weight as he did to this man’s report.

7. Both parties submitted that the Tribunal had to decide this appeal in the light of the Court of Appeal judgment in Oleed [2003] INLR 179 at 189 per Rt Hon Schiemann LJ. The Oleed principle, perhaps more usefully described as the “Oleed exception” to the Ravichandran approach of current risk, was stated in this judgment as follows:

“I accept that the Tribunal examines the situation in the country from which the refugee is fleeing as at the date of determination. However, in the present case in my judgment there was 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 grounds 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 interest”.

8. The potential relevance of this principle to this case arose from the fact that this too was a Secretary of State appeal and one in which there had been a major change in country circumstances between the adjudicator’s decision and the hearing before the Tribunal. At the date of the hearing before the adjudicator (17 February 2003), the Saddam Hussein regime was still in power in Iraq. Mr Buckley submitted that this was not a case in which the Tribunal was confined by the Oleed principle to assessing the claim as at the date of hearing before the adjudicator. Oleed, he argued, only applied to cases in which the adjudicator had made an error of law. Mr Waheed maintained that the Oleed exception did apply in this case since the adjudicator, he submitted, had not erred. The adjudicator had been entitled, he contended further, to rely on the country expert. The Tribunal in Issa did not have the country expert’s credentials before them. Furthermore, it was open to the adjudicator to conclude, on the basis of the findings of the Tribunal in Sabah, that any national of Iraq who had exited illegally would face a disproportionate punishment consisting in a 10 year sentence served in conditions of detention that would be inhuman and degrading.

9. Had it been open to us to decide this appeal on the basis of the situation in Iraq as at the date of hearing before us, we would have had no hesitation in allowing the appeal of the Secretary of State. The Baath Party regime is no more.

10. However, we have to consider whether the Oleed exception applies. As the Tribunal made clear in S (Sri Lanka) [2003] UKIAT, that principle causes difficulties for a straightforward application of the current risk test enunciated in Ravichandran [1996] Imm AR 97. Nevertheless, its ambit is limited. The exception Oleed creates to the current risk test is carefully limited by the requirement that, for this exception to apply, the decision of the adjudicator must first be shown to be “plainly wrong or unsustainable” (see paragraphs 29, 35 and 57 of the judgment).

11 In this case we are not satisfied that the adjudicator’s decision was either plainly wrong or unsustainable. Accordingly this is a case in which the Oleed exception applies so that the relevant date is the date of hearing before the adjudicator.

12. In seeking to persuade us otherwise, Mr Buckley asked us to identify two errors in the adjudicator’s determination. One was his decision to rely on the evidence of Dr Fatah. The other was his assessment that the Baath Party regime would apply penal sanctions for illegal exit against a person who was only 7 years old when he left Iraq.

13. As regards the adjudicator’s reliance on the expert report of Dr Fatah, the first important point to note is that when it was submitted on 3 December 2002 and the Home Office representative asked for time to consider that report, an adjournment had been granted in order that he could do so. Yet when the appeal came before the adjudicator on 17 February 2003, there was no Home Office representative nor had any Home Office letter been submitted making any challenge to the report of Dr Fatah. In our view the Secretary of State, having failed to avail himself of the opportunity specifically afforded to him to consider the report, was not entitled to challenge it after the adjudicator had written his determination. In the second place, the evidence which the adjudicator had before him was not confined to the report. He noted that in addition to the interview record, the reasons for refusal letter and a witness statement from the claimant, there were also a number of reports on Iraq. We have noted that these reports included the US State Department report dated March 2002 which included an entry dealing with freedom of movement stating that: “A November 1999 law provides for additional penalties for citizens who attempt to leave the country illegally. Under the law, a prison term of up to 10 years and “confiscation of movable and immovable property” is to be imposed on anyone who attempts to leave illegally. ..”. Thirdly, the report drew in a number of respects on established sources including ones from the British government and the US State Department and, having compared its contents with the US State Department report and others included in the bundle, we can find no significant inaccuracy in relation to what is said in it concerning the penalties imposed under the Baath Party regime for those who have failed to perform national service and how the authorities of that regime viewed persons who were family members of someone who had been executed by the regime for pro-Kurdish activities. In such circumstances it does not seem to us that any bias Dr Fatah might possess in favour Kurdish asylum seekers was relevant.

14. Mr Waheed urged us to reject the IAT view of Dr Fatah taken in the case of Issa. He argued that there was no proper examination of his credentials in that case, whereas in another case - Abdullah [2002] UKIAT 8174 - the Home Office was recorded as having checked Dr Fatah`s credentials and being satisfied by them. One unedifying feature of the arguments raised concerning Dr Fatah by both parties is that neither has had the courtesy to furnish the Tribunal with a copy of Issa. Since it was cited in the grounds, the Home Office should have adduced it. Mr Waheed sought to argue that it was not his responsibility to adduce the case. That is strictly correct, but his own skeleton argument referred to it in several places and he had not checked beforehand to see whether the Home Office had adduced a copy. We wish to remind parties appearing before the Tribunal that if they wish us to decide issues they raise and to decide them properly, it does not assist if they seek merely to sit on their hands. The primary duty of representatives must be to assist the court.

15. Since for reasons already given we do not think that in respect of this particular report any possible partiality on the part of Dr Fatah has affected its contents in any event, we are quite frankly not prepared to expend any further time in the context of this appeal assessing his credentials as an expert more generally.

16. Mr Buckley contended that the adjudicator erred in law in his reliance on the Tribunal decision in Saber [2002] UKIAT 3240 for concluding that the claimant would be at risk of persecution. He pointed out that in Saber the Tribunal had allowed the appeal not on the basis of any examination of the evidence, but simply because the Home Office representative conceded the appeal.

17. Mr Buckley is quite correct to point out that the adjudicator did place principal reliance on Saber in respect of his assessment that any citizen who left Iraq under the Baath Party regime could be sentenced to up to 10 years in prison and serve his sentence in conditions which would be “extremely poor and life threatening”. He is also right to note that the Tribunal in Saber allowed the appeal in the light of the Home Office representative conceding it. However, we have had no evidence placed before us to demonstrate that the assessment recorded in Saber concerning the consequences for those who leave the country illegally was erroneous. Moreover, as already noted, the adjudicator had before him objective country evidence confirming that assessment.

18. By reference to ground 3, Mr Buckley sought to argue that the claimant would have been of no adverse interest on his return (as at the date of hearing before the adjudicator) since he had left 14 years ago, when he was only seven. However, despite being the party who has brought this appeal, he did not support that argument with any objective evidence indicating that the travel laws were only applied against persons who were adults at the time they left Iraq. And in any event, the consequence of violation of the travel laws was only one of three main reasons relied upon by the adjudicator for concluding the claimant would be of adverse interest on return. The first reason, based on the claimant`s own evidence as well as the objectively sourced evidence of Dr Fatah, was that the regime would identify him as the son of an executed pro-Kurdish enemy of the regime and in consequence would seek to ill-treat him also. The second reason was the fact that he was someone who had not done military service when he should have.

19. The existence of more than one reason why the regime would have an adverse interest in the claimant also serves as an answer to the question concerning whether the real risk of serious harm upon return would have been for a Refugee Convention reason. Entirely in accord with the objective country evidence, Dr Fatah`s report provided support for the claimant`s fear that if returned as at the date of hearing the Baath party regime would have imputed the (pro-Kurdish) political opinion of his father to him and would have sought to persecute him by reason of that political opinion.

20. It must be borne in mind that the claimant in this case had been found to be the son of a pro- Kurdish activist. His home area was Basra. Furthermore, if he had been returned at the date of hearing before the adjudicator, as a young man of 20 claiming to have left there 14 years earlier, it was more than reasonably likely in our view that he would have become the subject of close interrogation. In the course of that interrogation, it was reasonably likely that he would not have been able to conceal his family history or the circumstances under which he had left Iraq. Whilst in considering the claimant`s case in the light of such factors the adjudicator may have been side- tracked to some extent by formalistic submissions based on a previous Tribunal case, he essentially based his decision to allow the appeal on palpable evidence indicating that the claimant would face a real risk of serious harm upon return.

21. Accordingly, we consider that the adjudicator was entitled to allow the appeal. The Oleed exception applies: this was to an appeal brought by the Secretary of State in relation to a determination which was not plainly wrong or unsustainable. This result may seem somewhat artificial, but, following Oleed, we see no other course open to us.

22. For the above reasons the Secretary of State`s appeal is dismissed.