[2004] UKIAT 68
- Case title: ZK (Country expert, Partisan)
- Appellant name: ZK
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Iraq
- Judges: Dr HH Storey, Mrs A J F Cross De Chavannes, Mrs M Padfield JP
- Keywords Country expert, Partisan
The decision
ar ZK (Country Expert - Partisan) Iraq [2004] UKIAT 00068
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 11 March 2004
Date Determination notified:
.......8th April 2004......
Before:
Dr H H Storey (Chairman)
Mrs M Padfield, JP
Mrs A J F Cross de Chavannes
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Representation
For the appellant : Mr A. Taylor, Counsel, instructed by Harehills and Chapeltown Law Centre for the appellant; Mrs R. Giltrow for the respondent
DETERMINATION AND REASONS
1. The appellant is a national of Iraq. He appeals with leave of the Tribunal against a determination of an Adjudicator, Mr C.B. Kealy, dismissing his appeal against the decision refusing to grant leave to enter on asylum grounds.
2. The grounds of appeal stretched to twenty points. As the Vice President who granted leave rightly observed, a number lacked substance. But essentially they consisted in two main points. Firstly, they contended that the Adjudicator had erred in his assessment that the appellant had not given a credible account. Secondly, it was argued that the Adjudicator had erred in concluding in the alternative that even if the appellant's account was accepted as credible, he would be able to obtain effective protection in his home area or, failing that, in other parts of Iraq.
3. We do not propose to set out in detail the submissions that were made to us, relating to the Adjudicator's adverse credibility findings. That is because we are satisfied there were significant errors in his assessment. In particular, he failed in our view, to take proper cognisance of what had been said by Mr Justice Collins when remitting this appeal to him. The then President described “his then solicitor’s apparent total failure to behave as any competent solicitors should”. That description should have made the Adjudicator far less ready to overlook the various complaints the appellant had made about the serious inaccuracy of his SEF statement.
4. Mrs Giltrow sought to argue that, even if no reliance was placed on the SEF statement, the Adjudicator's adverse credibility findings were still sustainable, since they also identified significant inconsistencies between the appellant's interview record and his more recent statement. However, having examined both of these accounts we fail to see any serious discrepancies.
5. Whilst we would accept it remains arguable that the appellant's account lacked credence, we are prepared, in view of the shortcomings identified above, to approach this case on the basis that the appellant's account should be regarded as credible. We notice that the Adjudicator did go on in the alternative, to consider his account on this basis, so we have a basis against which to assess whether his resultant conclusions were sound.
6. Given that on the appellant's own account the family of the wronged girl, the Ahmads, were powerful in the KDP (and possibly had influence within the fundamentalist United Islamic Party as well), we are also prepared to accept that the Adjudicator was wrong to conclude that he would be able to obtain effective protection in his home area or indeed anywhere within the KAZ. The Adjudicator was entitled to observe that the KDP and the PUK are now both firmly opposed to the tradition of honour killings and can in general afford protection to those affected. However, he failed to consider whether this appellant’s circumstances fell outside the general run of cases. He should have recognised that if the Ahmad family were powerful in the KDP they would be in a position to influence significantly the willingness and ability of the authorities to protect this particular appellant.
7. Given further the closer cooperation now practised between the KDP and PUK we are also prepared to accept that internal relocation within the KAZ would not obviate the real risk the appellant would face from the Ahmads of serious harm against which neither the KDP or PUK would be minded to protect.
8. It remains, however, to consider whether the appellant has a viable internal relocation alternative outside the KAZ. The Adjudicator did not go on to consider this because of his view that the appellant could achieve safety within the KAZ. But it remains an issue. We had the benefit of hearing submissions from both parties on it.
9. Mr Taylor submitted that the appellant would not be safe anywhere in Iraq. If he went to any area where Kurds lived, he would be in real danger of identification by other Kurds who would know of the Ahmad family’s adverse interest in him. If he went to a non-Kurdish area he would face discrimination and hostility making it unduly harsh for him to relocate there. Finally Mr Taylor pointed out the general backdrop to all of this was that Iraq post-Saddam continues to experience high levels of violence and instability.
10. We found ourselves unable to accept Mr Taylor’s submissions. Taking first the appellant's position in a non-Kurdish area, we do not consider that the objective country materials bear out that Kurds in such areas face a real risk of serious harm. Certainly there are significant levels of violence directed against Kurds. However, the extent and frequency of such incidents fall well short of establishing in non-Kurdish areas a consistent pattern of gross or flagrant violations of the basic human rights of Kurds.
11. Mr Taylor said there was a special reason why this appellant would “stick out” in non-Kurdish areas, namely that he only spoke Bardini. However, this appellant had not said when he served in the Iraq army that language had been a particular difficulty. And in any event, the objective country materials do not identify any particular difficulties for Bardini speakers.
12. Even within Kurdish areas outside of the KAZ, e.g. Kirkuk and Mosul, we do not consider it reasonably likely the appellant would face in such areas a real risk of identification and attack by members of the Ahmad family or others acting on their behalf.
13. Here it is important to focus on the actual position of this family. Even assuming they are powerful within the KDP and possibly within fundamentalist Islamic groups as well, there is no satisfactory evidence to show that the KDP, PUK or indeed any fundamentalist Islamic organisations seek out, on behalf of powerful families who enjoy close links with them, persons wanted by reason of a family feud or honour killing. Furthermore, on the very evidence adduced by the appellant's representatives, the Ahmads were part of the 100,000-strong Doski tribe. This tribe was based primarily in Dihok (which was in PUK territory) and on and over the Turkish border. There was no evidence that it had any particular influence or presence outside the far north.
14. In seeking to persuade us otherwise Mr Taylor placed particular reliance on the expert evidence of Dr Fateh. The Adjudicator had been wrong, he said, to reject that evidence on the basis that Dr Fateh is a “pro-Kurdish polemicist”. Mr Taylor asked us to regard this judgment on Dr Fateh as prejudicial since his qualifications made clear that he had very specialised knowledge of Iraqi affairs.
15. We do not consider that it is an error for an Adjudicator, when evaluating expert evidence, to take into account by reference to an expert’s curriculum vitae, indications that the person concerned holds partisan views in relation to the issues on which he gives evidence. However, we do not think that Dr Fateh’s statement of his background demonstrated that he was a “pro-Kurdish polemicist”. We note that he had said he had “no political involvement with any political organisations”. If an Adjudicator sees fit to classify an expert as partisan, it should be on the basis of evidence, either that put before him or that established through his own examination of it.
16. In the absence of any further examination of Dr Fateh’s bona fides, we are prepared (at least for the purposes of this case) to accept him as an expert witness and attach due weight to his evidence. However, the question remains, does his evidence establish that the appellant would face a real risk of serious harm in Kurdish areas of Iraq outside the KAZ? In considering this question we have also to take account of other objective materials including the CIPU Report.
17. We do not think that the objective evidence does demonstrate a real risk of serious harm in such areas. Certainly (as Dr Fateh’s report illustrates) such evidence does indicate that Iraq continues to experience high levels of violence and to remain unstable. Certainly too, (as Dr Fateh’s report illustrates) there are a significant number of incidents in which Kurds have been targeted by Arabs: Dr Fateh notes, for example, a May 2003 Baath loyalist tribe attack on Kurds in Kirkuk. However, his report certainly does not demonstrate in Kurdish or non-Kurdish areas outside of the KAZ a consistent pattern of gross, flagrant or mass violations of the human rights of Kurds.
18. Accordingly, we are not satisfied that the Adjudicator erred in concluding that the appellant upon return to Iraq would not face a real risk of serious harm: he had a viable internal relocation alternative.
19. For the above reasons this appeal is dismissed.
H.H. STOREY
VICE PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date of Hearing : 11 March 2004
Date Determination notified:
.......8th April 2004......
Before:
Dr H H Storey (Chairman)
Mrs M Padfield, JP
Mrs A J F Cross de Chavannes
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Representation
For the appellant : Mr A. Taylor, Counsel, instructed by Harehills and Chapeltown Law Centre for the appellant; Mrs R. Giltrow for the respondent
DETERMINATION AND REASONS
1. The appellant is a national of Iraq. He appeals with leave of the Tribunal against a determination of an Adjudicator, Mr C.B. Kealy, dismissing his appeal against the decision refusing to grant leave to enter on asylum grounds.
2. The grounds of appeal stretched to twenty points. As the Vice President who granted leave rightly observed, a number lacked substance. But essentially they consisted in two main points. Firstly, they contended that the Adjudicator had erred in his assessment that the appellant had not given a credible account. Secondly, it was argued that the Adjudicator had erred in concluding in the alternative that even if the appellant's account was accepted as credible, he would be able to obtain effective protection in his home area or, failing that, in other parts of Iraq.
3. We do not propose to set out in detail the submissions that were made to us, relating to the Adjudicator's adverse credibility findings. That is because we are satisfied there were significant errors in his assessment. In particular, he failed in our view, to take proper cognisance of what had been said by Mr Justice Collins when remitting this appeal to him. The then President described “his then solicitor’s apparent total failure to behave as any competent solicitors should”. That description should have made the Adjudicator far less ready to overlook the various complaints the appellant had made about the serious inaccuracy of his SEF statement.
4. Mrs Giltrow sought to argue that, even if no reliance was placed on the SEF statement, the Adjudicator's adverse credibility findings were still sustainable, since they also identified significant inconsistencies between the appellant's interview record and his more recent statement. However, having examined both of these accounts we fail to see any serious discrepancies.
5. Whilst we would accept it remains arguable that the appellant's account lacked credence, we are prepared, in view of the shortcomings identified above, to approach this case on the basis that the appellant's account should be regarded as credible. We notice that the Adjudicator did go on in the alternative, to consider his account on this basis, so we have a basis against which to assess whether his resultant conclusions were sound.
6. Given that on the appellant's own account the family of the wronged girl, the Ahmads, were powerful in the KDP (and possibly had influence within the fundamentalist United Islamic Party as well), we are also prepared to accept that the Adjudicator was wrong to conclude that he would be able to obtain effective protection in his home area or indeed anywhere within the KAZ. The Adjudicator was entitled to observe that the KDP and the PUK are now both firmly opposed to the tradition of honour killings and can in general afford protection to those affected. However, he failed to consider whether this appellant’s circumstances fell outside the general run of cases. He should have recognised that if the Ahmad family were powerful in the KDP they would be in a position to influence significantly the willingness and ability of the authorities to protect this particular appellant.
7. Given further the closer cooperation now practised between the KDP and PUK we are also prepared to accept that internal relocation within the KAZ would not obviate the real risk the appellant would face from the Ahmads of serious harm against which neither the KDP or PUK would be minded to protect.
8. It remains, however, to consider whether the appellant has a viable internal relocation alternative outside the KAZ. The Adjudicator did not go on to consider this because of his view that the appellant could achieve safety within the KAZ. But it remains an issue. We had the benefit of hearing submissions from both parties on it.
9. Mr Taylor submitted that the appellant would not be safe anywhere in Iraq. If he went to any area where Kurds lived, he would be in real danger of identification by other Kurds who would know of the Ahmad family’s adverse interest in him. If he went to a non-Kurdish area he would face discrimination and hostility making it unduly harsh for him to relocate there. Finally Mr Taylor pointed out the general backdrop to all of this was that Iraq post-Saddam continues to experience high levels of violence and instability.
10. We found ourselves unable to accept Mr Taylor’s submissions. Taking first the appellant's position in a non-Kurdish area, we do not consider that the objective country materials bear out that Kurds in such areas face a real risk of serious harm. Certainly there are significant levels of violence directed against Kurds. However, the extent and frequency of such incidents fall well short of establishing in non-Kurdish areas a consistent pattern of gross or flagrant violations of the basic human rights of Kurds.
11. Mr Taylor said there was a special reason why this appellant would “stick out” in non-Kurdish areas, namely that he only spoke Bardini. However, this appellant had not said when he served in the Iraq army that language had been a particular difficulty. And in any event, the objective country materials do not identify any particular difficulties for Bardini speakers.
12. Even within Kurdish areas outside of the KAZ, e.g. Kirkuk and Mosul, we do not consider it reasonably likely the appellant would face in such areas a real risk of identification and attack by members of the Ahmad family or others acting on their behalf.
13. Here it is important to focus on the actual position of this family. Even assuming they are powerful within the KDP and possibly within fundamentalist Islamic groups as well, there is no satisfactory evidence to show that the KDP, PUK or indeed any fundamentalist Islamic organisations seek out, on behalf of powerful families who enjoy close links with them, persons wanted by reason of a family feud or honour killing. Furthermore, on the very evidence adduced by the appellant's representatives, the Ahmads were part of the 100,000-strong Doski tribe. This tribe was based primarily in Dihok (which was in PUK territory) and on and over the Turkish border. There was no evidence that it had any particular influence or presence outside the far north.
14. In seeking to persuade us otherwise Mr Taylor placed particular reliance on the expert evidence of Dr Fateh. The Adjudicator had been wrong, he said, to reject that evidence on the basis that Dr Fateh is a “pro-Kurdish polemicist”. Mr Taylor asked us to regard this judgment on Dr Fateh as prejudicial since his qualifications made clear that he had very specialised knowledge of Iraqi affairs.
15. We do not consider that it is an error for an Adjudicator, when evaluating expert evidence, to take into account by reference to an expert’s curriculum vitae, indications that the person concerned holds partisan views in relation to the issues on which he gives evidence. However, we do not think that Dr Fateh’s statement of his background demonstrated that he was a “pro-Kurdish polemicist”. We note that he had said he had “no political involvement with any political organisations”. If an Adjudicator sees fit to classify an expert as partisan, it should be on the basis of evidence, either that put before him or that established through his own examination of it.
16. In the absence of any further examination of Dr Fateh’s bona fides, we are prepared (at least for the purposes of this case) to accept him as an expert witness and attach due weight to his evidence. However, the question remains, does his evidence establish that the appellant would face a real risk of serious harm in Kurdish areas of Iraq outside the KAZ? In considering this question we have also to take account of other objective materials including the CIPU Report.
17. We do not think that the objective evidence does demonstrate a real risk of serious harm in such areas. Certainly (as Dr Fateh’s report illustrates) such evidence does indicate that Iraq continues to experience high levels of violence and to remain unstable. Certainly too, (as Dr Fateh’s report illustrates) there are a significant number of incidents in which Kurds have been targeted by Arabs: Dr Fateh notes, for example, a May 2003 Baath loyalist tribe attack on Kurds in Kirkuk. However, his report certainly does not demonstrate in Kurdish or non-Kurdish areas outside of the KAZ a consistent pattern of gross, flagrant or mass violations of the human rights of Kurds.
18. Accordingly, we are not satisfied that the Adjudicator erred in concluding that the appellant upon return to Iraq would not face a real risk of serious harm: he had a viable internal relocation alternative.
19. For the above reasons this appeal is dismissed.
H.H. STOREY
VICE PRESIDENT