Tribunal decisions

The decision

AH(Kurd-PKK-Risks in KDP area) Iraq CG [2004] UKIAT 00318
IMMIGRATION APPEAL TRIBUNAL

Date of Hearing: 28 July 2004
Date Signed: 200
Date Determination Notified: 200
08/12/2004

Before:
Mr A R Mackey – Vice President
Ms D K Gill – Vice President
Ms P L Ravenscroft

Between

Appellant

and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

For the Appellant:
Miss J Stevens, of counsel representing Wesley Gryk Solicitors, London
For the Respondent:
Miss J Sigley, Home Office Presenting Officer

DETERMINATION AND REASONS

1. The appellant, a national of Iraq of Kurdish ethnicity, from the Northern Iraqi town of Duhok, an area currently controlled by the Kurdish Democratic Party (KDP). He appeals the decision of an Adjudicator Mrs C M Howden-Beale, promulgated 12 December 2003, wherein she dismissed the appeal made against the decision of the respondent, who had issued removal directions on 17 July 2003, and refused asylum and human rights claims.

Preliminary Matters

2. At the outset Ms Gill disclosed that she had had some prior family association with the firm of Wesley Gryk, although there was no current contact or association. There was no objection to her proceeding to hear the matter by either party.

3. Ms Stevens provided us with a skeleton argument, dated 28 July 2004, which had attached to it part of the United States Department of State “Country Reports on Human Rights Practices: Iraq”. We were also provided with a full appellant’s bundle running from A1 through to E42. The latest Home Office CIPU Report was also provided.

4. The bundles contained an updated expert report written by Professor Emile George Howard Joffe, dated 8 July 2003, relating specifically to the appellant and a detailed commentary prepared by Prof Joffe on the CIPU Country Report of April 2002. Prof Joffe attended the hearing and gave evidence.

5. In reaching our determination we have considered all the material placed before us, the skeleton argument, and the evidence of Prof Joffe, along with the submissions of both parties.

6. This matter came before us after Statutory Review by the High Court. Mr Justice Collins had concerns that the matters relied on by the Adjudicator were not properly put to the appellant’s advisors and the “Joffe report” was not dealt with. In addition the relocation issue was not referred to by the Adjudicator. We thus had before us the grounds for Statutory Review, as well as the grounds of appeal, which were originally presented in support of the application for permission.

The Adjudicator’s Determination

7. Both parties were represented before the Adjudicator, Miss Stevens appearing for the appellant on that occasion as well. The Adjudicator found that the appellant was a 35 year old man who had arrived in this country on 9 February 2000 and lodged a statement of evidence(SEF) on 28 November 2000. He was interviewed on 7 March 2003 and his asylum application was refused on 2 July 2003. He gave evidence before the Adjudicator and supplied a witness statement and a report by Prof Joffe, along with other objective evidence, all dated 2003, including reports from Amnesty International, UNHCR, The Guardian, Christian Aid, Agence-France Presse, Radio Free Europe and International Crisis Group.

8. The appellant claimed that his father had been a member of the KDP, and the family had always been perceived as KDP supporters. The appellant was educated in Duhok, and set up a car repair business. In 1991 he took part in the Kurdish uprising and helped the Peshmergas to free Duhok, for the KDP. In an Iraqi counter attack in 1992 he had moved to Turkey temporarily. After his return in 1993 he sold his business and he and his cousin started trading with the major Turkish/Kurdish opposition group, the PKK. Business was good and, at that time, the KDP were also helping the PKK. However, in 1994 the Patriotic Union of Kurdistan (PUK) and the PKK fell out. Also at this time the PUK left Duhok leaving the KDP in control. Soon after the appellant claimed that the KDP and the PKK relationships also had soured and the KDP began to seek out those in KDP areas who had or were assisting the PKK. As a result of this his cousin and business partner was arrested, presumably by the KDP, and his whereabouts are unknown to this day.

9. At the time of the cousin’s arrest the appellant claimed he was away of business on the Turkish/Iraqi border. His cousin’s brother travelled to meet him and warned him that the same fate awaited him and therefore the appellant should flee. The appellant then walked until he entered the government controlled area of Iraq ( Sheikhan, in En Sufni province), where he remained until 5 October 1999, repairing cars with a friend. On that night someone fired on a house of a kinsman of Saddam Hussein. The appellant was then arrested as a suspect and an outsider. He was handcuffed and blindfolded and taken to detention in what he later discovered was Mosul. On11 November 1999 he was placed with another prisoner who he was being taken away for execution. This scared him as he thought he would have the same fate. He continued to be held until January 2000 when an Iraqi officer came to see him and effectively asked him to work for the Iraqi government(BP) as a spy within the KAZ. He was that if he did so he would be released. The appellant agreed because he feared he would be executed like his fellow prisoner if he did not. He was given a small sum of money.After staying for three days in Mosul ,so as not to allay suspicion, he then hired a taxi ( on 10 January 2000), and made his way to the Iraqi -KAZ border. He then claimed he had walked across the border to Duhok. He went to stay with his sister, in secret, for two days. On the third day his brother in law took him to the Turkish border where they found an agent who eventually delivered him to the UK.

10. The appellant claimed his wife and children had left Duhok at the beginning of 2002, because the KDP kept harassing them, and asking for his whereabouts. His wife had told the authorities that he was En-Sufni and that he had been arrested and she knew nothing of his whereabouts. He further claimed that his wife had paid an agent to take her and the children to Mosul, but he had no further contact with them since the coalition invasion of March/April 2003.

11. Because of the challenge to the Adjudicator’s findings in paragragh 54 of the decision, it is important to record the Appellant’s evidence , from the Interview record sheet, as it relates to his wife’s movements in Iraq. The reply to Question 64 is relevant.

12. This states :“ Q64-Since leaving , have you had any contact with anybody living in Iraq(both KAA/Iraq)? Reply-

“ Yes, I phone my sister to know my own families destiny. They were in my sisters’s house until 2000, they had been taken to the security department twice. Wife and children move to Duhok in beginning of 2000 to sister’s house, they taken to security for questioning twice and they could not stand it, so they return to Mosul in 2002.”

13. Although he claimed his father had been a KDP member and the family were perceived as KDP supporters, he personally had never been a member or politically active. Also he had not been a PKK activist or supporter. He stated he had merely done business with them . He did know that they were illegal organisation but apart from being aware they were against the Turkish government, little else.

14. He claimed that now that the Saddam Hussein regime no longer existed he could not live anywhere in Iraq because the KDP had a strong influence, not only in the former KAZ, but also in other parts of Iraq, and they would be able to find him where-ever he went. He was sure that his cousin had been killed by the KDP for trading with the PKK and that he would face a similar fate if returned. Finally he confirmed that despite agreeing to spy for the Iraqis (BP) he never actually gave them information and the small amount of money given to him was only for travel arrangements.

15. After hearing submissions from both parties the Adjudicator went on to consider the objective information. In relation to the PKK she noted that it had been formed in 1978 and had actively advocated the arms struggle to achieve an independent Kurdish state, which included parts of Turkey, Syria, Iran and Iraq. When its leader ,Abdullah Ocalan, was captured by the Turks in 1999, the PKK ceased its violent operations, although the Turkish government did not agree to the ceasefire. She noted that in 1999/2000 Turkish forces had invaded the PUK and the KDP controlled areas in search of the PKK, and in July 2000 the PUK had attempted to remove the PKK from it’s area with casualties on both sides. Subsequently a ceasefire was agreed between those two parties and she noted it that, in July 2003, a United Kingdom/Danish fact finding mission report had stated that there was no longer any PKK activity in Iraq.

16. The Adjudicator concluded her determination noting the dramatic change in Iraq and the collapse of the BP regime. She considered the appellant was no longer at risk from the BP.

17. In relation to the KDP risks she noted that, at a time when the appellant fled to En-Sufni, in 1995, the conflict between the KDP and the PKK was at its height, as were the conflicts between the PKK and the Turkish Government. She noted however that in 1999 the PKK gave up its fight against the Turkish government. She acknowledged however that the PKK had recently indicated it had abandoned the ceasefire but she was unaware of any clashes between the Turkish government and PKK at the present time. She also noted that in 2000 the PUK and the PKK declared a ceasefire.

18. She went on to note that the appellant had been captured by the previous Iraqi regime and released in 2000 and had then been able to return to Duhok, for a short time, before fleeing the country. She noted that the situation had completely changed since the appellant fled and that there were no reported clashes between the PUK or the KDP and the PKK since 2000.

19. At paragraph 54 the Adjudicator stated:

“The appellant claims that the security forces had been looking for him and have questioned his wife as to his whereabouts while she was living in Duhok, on two occasions. He claims that as a result of the harassment she fled to Mosul at the beginning of 2002. She has not been questioned or harassed since then. I note that having questioned his wife in Duhok the security forces do not appear to have questioned his sister, who was and still is in Duhok, and, with whom, the appellant is in contact. I find it unlikely that the security forces, if they were interested in the appellant, would only question his wife and not the rest of his family, who live in the city. I do not accept therefore that his wife was questioned as he claimed, particularly since she was not questioned between 1995 and 1999, when he was in El-Sufni, but only when he fled to the United Kingdom in 2000.”

20. She then stated that, bearing in mind the lack of hostilities between the KDP and the PKK, and lack of hostilities between the PKK and the Turkish Government she did not find, after this length of time, that the security forces would “have the slightest interest in a former trading partner with the PKK. The current situation in Iraq means they have far more important things on their minds. I do not find therefore that the Appellant has a well –founded fear of persecution either from the old regime or the KDP.”

21. She then considered whether there would be a breach of Article 3 on return, and did not consider there were substantial grounds for believing the appellant would be at a real risk of ill-treatment “from the KDP for something he was doing over eight years ago and which at the time all Kurds were doing”. She concluded that in any event he could live with his family in Mosul where his wife has allegedly has been since 2002, without any problems. She therefore dismissed the appeal on both asylum and human rights grounds.

Professor Joffe’s evidence

22. Prof Joffe was called and we heard evidence from him, which was followed by cross-examination and re-examination.

23. The written material before us from Prof Joffe consisted of:- a report dated 30 September 2003, consisting of 19 pages, and relating directly to the appellant; a commentary on the CIPU Country Report (April 2004) contained in the bundle A4-A19; a short letter dated 8 July 2004 which sets out comments on recent events dealing with the current status of Kadek, previously known as the PKK. Prof Joffe sets out at the commencement of the letter of 8 July 2004 that he had been unable to provide a report specifically related to this appellant’s situation for reasons explained to the instructing solicitors. We understand that this came about due to a lack of continuing funding being available to the Appellant.

24. Firstly Miss Stevens asked Prof Joffe his opinion as to what risks were faced by the appellant,on return to his home district of Duhok, given the background and perceived risks from the KDP?

25. Prof Joffe stated that his reply was somewhat conjecture but fell into three parts. Firstly the risks to this appellant would appear to be not only from the perceived associations with the PKK, going back to 1995, but also that he hdd effectively joined the BP. This would be an additional matter that could cause offence to the KDP.

26. Next was the question of whether, after the period time that had elapsed he would be so recognised? His view was that, given the nature of Kurdish society, which is intensely tribal and kin related through extended families, it was almost inevitable he would be recognised, within that family structure and within a short time. This was quite different to the anonymous situation people could achieve within Europe. He therefore stated there was considerable danger the appellant would be identified and his past attributed to him.

27. Thirdly, he considered the attitude of the KDP to the PKK and BP had to be taken into account. He considered that the antagonistic attitude towards the PKK had intensified since 1 June 2004 and, at this time, there where direct tensions between the KDP and the PKK, as the KDP wished to avoid Turkish interest being taken in the KDP area. His view was that, particularly in the Duhok area, those with PKK links would be under intense suspicion by the KDP. To this had to be added, the BP issue. All Kurds in the former KAZ, with past BP associations, would be seen as people who had betrayed the Kurdish interest. He saw no reason for this to change.

28. He also confirmed that the Duhok area was very much in the control of the KDP who carried out the policing in that area.

29. He was then cross-examined by Miss Sigley. She asked whether it was common for people, such as the appellant, to trade with the PKK in the KDP from 1990-1995. Prof Joffe considered it was not common, but was not unknown up to 1995, and tat that time, in effect, the KDP tolerated the PKK because it was another Kurdish nationalist movement, although admittedly primarily operating within Turkey. Hostility arose when the Turks intervened and placed their forces within the KDP area. The PKK response to this was to try and reinforce their position in Iraqi Kurdistan. This antagonised the KDP and thus those trading with the PKK would be seen as politically suspect. Thus in 1995 the KDP moved against the PKK supporters in its area and rounded up those connected with the PKK. Both the KDP and the PUK had tried to move against PKK enclaves within Iraqi Kurdistan. This was part of the spur for tension between them.

30. Miss Sigley then asked whether the KDP would have a serious interest in the appellant given his current profile. Prof Joffe considered he would be seen as a threat because of his past commercial links and that these could be also seen as possible political links. He noted that Duhok was close to the former border between the former KAZ and the government controlled Iraqi area, and that there was a very permeable border. He also noted that there had been a very strong intelligence service operated by the KDP and thus, although the appellant had been outside of the KDP controlled area and thus avoided risk, there would have been, over the period 1995-2002, a likelihood that the KDP intelligence would have known of his activities.

31. Miss Sigley then referred to Prof Joffe to the Fact Finding Mission Report Danish/UK, of July 2003, which set out that the PKK did not appear to be operating in Iraq. He was asked to comment on this.

32. Prof Joffe noted that between 1999, when Oclan was captured, until possibly June 2004, that the PKK had operated a type of ceasefire. This impacted on their operations in Iraqi Kurdistan. However, now that 5,000 Kadek (PKK) remained inside Iraqi Kurdistan, in the KDP area, near the border between Turkey, Iran and Iraq, there was heightened tension. The Turkish government had tried to get the United States to end the PKK presence, but there had been no response from the United States to this recent request. Therefore Turkey continued to contain the PKK within an area in the northern KDP controlled zone of influence. This lifted tensions in the area dramatically and thus the situation that prevailed, when the Fact Finding Report of July 2003 took place, should no longer be seen as the current situation.

33. He agreed that there had been a lull in activities between 1999 and 2003. He did not consider that this meant the KDP dropped it’s interest in PKK problems and that people, such as the appellant, were not still be seen as of interest during that period, and also at the present time. When asked to give examples of this he said that he constantly monitored the Kurdistan Observer (an English Newspaper) which showed a number of examples of people being picked up and detained for suspicious links or otherwise with the PKK. He had not provided copies of that newspaper because of the limitations of the latest letter, as discussed above.

34. Miss Sigley then asked for comment on a report from the “Washington Institute for Near East Policy (USA) – The PKK’s New Offensive Implications for Turkey, Iraq, Kurds in the United States” of 25/06/2004, which was set out from A72 of the appellant’s bundle. She asked us also to note several parts of this report. At the outset this report stated that from 1 June 2004 the PKK had declared it had rescinded its unilateral ceasefire of February 2000 and the implications for heightened PKK violence were also grave for Iraqi Kurds and the United States. It stated that the PKK had more than 5000 loyalists in portions of Northern Iraq controlled by the KDP and the PUK. She noted the report went on to state that:

“The PKK is also distanced from the PUK in Iraq, in his new role as an Iraqi statesman, PUK leader Jalal Talbani has publicly sided with Turkey against the PKK’s latest offensive. Moreover, amid reports that Iraqi Kurdish members of the PKK are leaving the terrorist organisation to join the KDP, former KDP official and current Iraqi Foreign Minister Hoshwar Zebari promised to allow the PKK to remain in Iraq. Nevertheless, the PKK is still very much active in Northern Iraq.”( Italics added)

35. Prof Joffe commented that the KDP wished to break up the power of the PKK and at the time this was written it appeared that the KDP were accepting defectors. However he considered that those who did not come forward could still have problems from the KDP.

36. Miss Sigley asked whether this was the situation for someone who had only sold provisions to the PKK? Prof Joffe considered if the appellant returned he would face problems as even if he apologised for his PKK associations, and that where accepted, he would still have problems because of his former BP association.

37. He was asked why there would be any knowledge of his BP association given that he never operated as a spy and left after only apparently a few days? Prof Joffe considered that the KDP intelligence network system, in former Saddam controlled Iraq, was a very good one and that on occasions the KDP formally co-operated with the Iraq security forces. Thus, those of particular interest such as BP informers, would be likely to be known to the KDP. There were thus grounds to believe the KDP would know of the appellant’s acceptance of BP membership. He also considered that even after the appellant’s refusal to operate for the BP this information could be passed on to the KDP, as a potential form of punishment to the appellant for not carrying out his role as a spy. He was however unable to comment as to whether contacts made with the family were because of his possible BP associations. He was also unable to give examples of low-level BP party member’s receiving maltreatment in the KDP area. He explained that these were unlikely to be reported in respect of those with a low-profile. The reports he read were usually one or two lines. However, the failure to report did not mean that it was not taking place.

38. He expanded on this further with questions from ourselves. He advised us that the reports contained in the Kurdistan Observer were along the lines : “Two people arrested in Duhok suspected of links with PKK”. No further detail on this was usually provided. He explained that there was also a Turkish News Agency reporting similar matters and further reports, were possibly available from Radio Free Europe – Radio Liberty, although he had no specific evidence on this. He agreed with our summary that he was not aware of any people who had previous trading links with the PKK, which had ceased nine years ago, now being suspected and punished for those links by the KDP. He agreed that there would have been many people with such trading links in the past but those people would have come under pressure if they had substantive links with the PKK. How they responded was up to the individual. As with this appellant he had moved across the border and that was rational response in the situation.

39. There was no re-examination and we then excused Prof Joffe.

The Appellant’s Submissions.

40. Miss Stevens expressly contested the negative credibility findings in paragraph 54 of the determination.

41. She submitted that the Adjudicator had failed to put the issue of the questioning of the appellant’s wife to the appellant. Had this taken place the appellant would have clarified that his wife did not remain in Duhok, she also relocated to En-Sufni and it was only in 2000, after the appellant fled to the United Kingdom that the appellant’s wife returned to Duhok. Had this issue been raised the Adjudicator would also have been referred to the appellant’s answers to question 64, of the interview ,where he stated that it was at the beginning of 2000 that his wife and children moved back to Duhok to stay with his sister. In addition it was not put to the appellant whether or not his sister was actually questioned. Given that his wife was living with his sister the authorities would have clearly visited the sister’s house. Thus it would not have been surprising if the focus of attention as to the appellant’s whereabouts had been on the wife, as she had suddenly returned to Duhok after a number of years, without the appellant returning with her. In this situation therefore the Adjudicator had made an error of fact in her conclusions. This was therefore an error on her part and accordingly we were placed in a situation where there were actually no negative credibility findings against this appellant. Thus we should therefore treat his evidence at its highest.

42. Miss Stevens submitted that it was important that we look at the current climate between the KDP and PKK and the new interim government of Iraq, in reaching our conclusions. She referred us to a list of bullet points relating to the PKK in Iraq set out in her skeleton argument. In particular the last three bullet points on page 3 under “The PKK in Iraq”, these stated:

-“On 25 June President Bush pledged to work with Turkey and the new Iraqi administration to deal with the PKK (A74 bundle).

- One of the first actions of the new Iraqi government after taking over sovereignty from the US-led coalition on 28 June, was to include the PKK in a list of terrorist organisations (A86).

- On 3 July the Iraqi interim government announced it was drawing up a strategy to rid Iraq of the PKK. The Ministry of Defence stated that the interim government would work with Turkey and the Kurdish Administrations in Erbil and Suleymaniya in Northern Iraq in this matter (A79).”

43. She submitted this indicated heightened tension around the PKK issue and thus this appellant could be perceived not just as a former trader with the PKK, but as a supporter. We needed to keep in mind that the appellant’s cousin had been arrested for this reason and that must be coupled with the possible BP association of this appellant in the past. She submitted that therefore, even if he stated he had nothing more to do with the PKK, there was still a residual suspicion. Past trading associations could also show useful information possibilities in a crackdown on the PKK. This again could lead to the KDP taking interest in him.

44. She then referred us to an Amnesty International report set out in A25 of the bundle. She submitted this indicated suspected terrorists could be in danger throughout the whole of Iraq. She also referred us to examples of persons detained and set out at A26 of the bundle in the same Amnesty International report.

45. In summary therefore she submitted that there were continuing risks to this appellant in the KDP area, despite the length of time since he had trading links with the PKK. Given the level of intelligence, indicated by Prof Joffe, and held by the KDP, including the possibility of his BP links being known, he would be seen as a person who has betrayed KDP interests.

The Respondent’s Submissions

46. Miss Sigley firstly addressed paragraph 54 of the determination and the non acceptance by the Adjudicator that the appellant’s wife had been questioned, as he claimed. She submitted this was a safe conclusion, open to the Adjudicator, particularly as no evidence had been produced by the appellant as to where his wife was and what she was doing during the period 1995 to 1999. While the appellant gave evidence that his wife had returned to Duhok no evidence had been supplied as to where she had been during the period the appellant had been in En-Sufni, outside the former jurisdiction of the KDP. The evidence, at best, did not make it clear where his wife had been. In this situation the Adjudicator was able to reach the conclusions she did, in a valid manner. She submitted there was no need for the Adjudicator to go through the evidence point by point, but an overall conclusion could be reached, in the manner set out in paragraph 54. She submitted that all of the evidence in this regard was flimsy, however particularly since the appellant had left in1995.

47. In relation to Prof Joffe’s evidence that the intelligence forces of the KDP were very effective and it was likely would have records on the appellant’s activities over the period 1995 to 2000, she submitted that this conclusion by Prof Joffe was speculative and did not appear to have objective and sourced material to back it up. She submitted that if the KDP authorities had been looking for the appellant it was strange that they would not have done anything for a period of five years (1995-2000) and this supported the Adjudicator’s findings. She asked us to note that during the period 200-2003, there was a lull in KDP interest in PKK activities and supporters, yet this was the time when the appellant had claimed his wife had been approached. This also appeared to support the Adjudicator’s conclusions on credibility in paragraph 54. She then moved to the core issue of the risk to this appellant on return. She submitted that this was a man who had traded a few items with the PKK, for a short period in the mid 1990’s, when it was legitimate. He was clearly not a terrorist or a person who would arouse suspicion. She submitted that the objective evidence showed an increasing Turkish interest in the PKK, in an enclave they appeared to hold within the KDP controlled area and this was where KDP interest was also directed. There was nothing to show, from the objective evidence, a current interest in a person such as the appellant, who was of no profile. It was far-fetched to consider that there were substantive risks to a person of the appellant’s profile, particularly given the nine year gap. She also referred us again to the article in “Washington Institute for Near East Policy (USA) , The PKK’s New Offensive – Implications for Turkey, Iraq, Kurds and the United States” – 25/06/2004

48. She submitted that this quote showed that there was a defector situation taking place. This did not indicate an oppressive attitude towards Iraqi Kurdish members of the PKK. She noted that possible terrorists with strong associations to the PKK, may be still questioned and be at risk, but this appellant clearly was not. She submitted that if the PPK members were able to defect it was highly unlikely that the KDP would be taking interest in someone of the appellant’s profile, given the minor associations; by way of trading only, this appellant had in the past with the PKK.

49. In respect of his possible BP linkage, she noted firstly that this was a late addition to the appellant’s case. She submitted that Prof Joffe’s evidence in this regard had again been speculative. There was no evidence that the appellant, had actually signed on to join the BP. The only evidence was that almost at once, after being approached to become a spy for them, he had escaped, without conducting any activities from them. She also submitted that it was highly speculative and unlikely that the former Saddam regime would have passed on information to the KDP, firstly that they had recruited him as a spy and secondly that he had refused to carry out his activities as such. Indeed she submitted if the intelligence of the KDP had been so good then the appellant would have been caught during the three days when he returned to Duhok. She also noted that the appellant’s wife had been able to return to Mosul without problems. If she had been the wife of a suspected spy this would have been highly unlikely.

50. Against the evidence, when logically and objectively assessed therefore, she submitted that the appellant could now be safely returned to the KDP controlled area of Iraq.

51. As an alternative she submitted that if the KDP did wish to talk to the appellant about his previous activities that this, of itself, would not lead to persecution or a breach of Article 3 of the ECHR. She submitted that firstly it was unlikely that a prosecution against him would be pursued after some nine years, and secondly, even if it was, the objective information showed that the judiciary was functioning effectively in an independent manner in the KDP controlled area (CIPU paragraph 5.28) and that general human rights obligations were observed (CIPU paragraph 5.30). She submitted that while torture may have been used in the past by the KDP, it was unlikely in the current situation that this would be carried out, given the clear desire by the KDP to present itself as a viable governing body in Northern Iraq, which observed international norms of good government.

52. She submitted therefore even on this alternative basis the appeal should be dismissed.

Reply

53. In reply Miss Stevens submitted that the issue of whether or not there was an independent judiciary in the KDP area had been considered in the original Prof Joffe report and we were referred to that.

54. In relation to the submission by Miss Sigley that the KDP had not taken interest in the appellant’s wife moving to Mosul, she asked us to note this issue had been before the Adjudicator who did not find against the appellant on this point. She agreed with us that this was a submission only made by the respondent and not a challenge to credibility.

55. In relation to the lull of the KDP actions against the PKK over the period 2000-2003, she submitted that this did not indicate there had been an lack of adverse interest continuing against PKK supporters by the KDP. It should be noted, in ground 1(e) of the application for permission to this Tribunal that the Adjudicator failed to take evidence of continuing interest over the period 2000-2003 into account, even though the objective evidence showed clashes continued. She submitted this did not effect the current risk to the appellant from the KDP, who she submitted ,on the evidence, were prepared to act against members and supporters of the PKK.

56. In relation to the claim by Miss Sigley that there was a gap in the evidence relating to the appellant’s wife’s activities from the period 1995-2000 she submitted that it was only in the year 2000 that the appellant ( and his wife) had returned to Duhok and this would explain why she was not questioned during that period. In addition the appellant had never been asked about his wife’s sister or her activities during the hearing. Beyond this she submitted that as the evidence of the appellant was that his wife had been staying with his sister in Duhok over the period 2000-2002, it was logical to assume that when his wife was taken to the security services , twice, his sister would also have been questioned by those forces of the KDP. She agreed with our comment that no evidence on this point had actually been given by the appellant as well.

57. We reserved our determination noting that if it arguable that there was a well-founded fear to this appellant on return to the KDP controlled area of Northern Iraq there would be a need to either resume this hearing to consider issues of an internal relocation or to submit pending country guidance cases to the parties for written submissions. Clearly if we found there were no real risks to the appellant on return to Duhok that would be the end of the matter.
Issues

58. It was agreed by both parties that the central issues before us for determination were:

a. whether the Adjudicator was correct in her assessment of the appellant’s evidence relating to his wife’s situation as concluded in paragraph 54 of the determination? If the Adjudicator was incorrect in her conclusions on credibility at this paragraph could we reach our own conclusions in this matter treating the evidence at its highest. If not, would this matter have to be remitted for clear findings on this potentially critical issue of continuing interest in the appellant?

b. the risks of persecution or maltreatment to this appellant, on return to Iraq from the KDP, because of his past associations, perceived or real, with the Kurdish Workers Party (PKK) and/or the Ba’ath Party (BP)? If this is established then –

c. whether an internal relocation or flight alternative (IFA) was available to this appellant. If so to where, and would it be unduly harsh or unreasonable to expect him to so relocate? In relation to the IFA issue it was agreed that this matter would not be argued unless it became necessary, based upon our conclusions on the first two issues. In such case we undertook to distribute a forthcoming country guidance case to the parties, in which Prof Joffe had also given evidence. In that situation it was agreed that, after the country guidance case had been distributed, the possible issues arising would either be dealt with by way of written submissions or the reconvening of this hearing. In the circumstances, for the reasons set out below, as we do not consider that this appellant would be at a reasonable likelihood of being persecuted on return to his home district and we find no substantial reasons for concluding a real risk of a breach of any of the provisions of the ECHR on return to his home district, it has become unnecessary to determine this third, (IFA), issue.

Decision

59. We turn to the first issue, the negative credibility assessment made in paragraph 54 of the determination. As stated above the Adjudicator did not accept that the appellant’s wife was questioned as he claimed. He also considered that the security forces did not appear to have questioned the appellant’s sister who was, and still is in Duhok. However, as is clear from question 64 of the appellant’s interview record sheet the evidence given by the appellant was that his wife had been living at his sister’s house in Duhok from the beginning of 2000 until he returned to Mosul in 2002. It would appear that the submissions of Miss Stevens in this regard have merit. It would appear the Adjudicator has not fully read the answer to question 64. It is logical that if the appellant’s wife was living with his sister, the security forces would have at least been aware of the appellant’s sister in Duhok and have possibly questioned her. If the Adjudicator had concerns in this regard this issue should have been raised with the appellant for clarification. His conclusions therefore that there was a lack of continuing interest in the appellant because they have only questioned his wife and not the rest of the family does not appear to be a safe one based on the actual evidence the appellant provided. To this extent the findings of the Adjudicator are flawed and in error.

60. This then leaves the situation where we must decide, on the basis of the findings of the Adjudicator, which we consider are unsafe on the issue of contacts with the appellant’s wife and sister, there is sufficient evidence for us to reach our own conclusions on the objective evidence before us?

61. We find that the question of continuing interest in the appellant after he left Duhok himself in early 2000 is one that is critical to this determination. Clearly if there is continuing interest established and accepted as credible then the assessment of whether there is a real risk to this appellant from the PKK at this time, on return to the Duhok area, may well be very different to a situation where this continuing interest is not accepted. We do not find the conclusions of the Adjudicator sufficiently clear in this regard and, as it is an issue that goes to the core of the appellant’s claim, we find that the only pragmatic and expedient way of determining this appeal is for it to be allowed to the extent that it should be remitted for hearing afresh before another Adjudicator apart from Mrs Howden-Beale. At the time of the remittal the Adjudicator will be able to take into account all of the objective evidence set out above and the determination of the Tribunal in EH (HX/52571/2003) a country guidance case on the returnability of applicants to the former Kurdish Autonomous Zone.

62. This appeal however, is allowed to the above extent only.

A R Mackey
Vice President