Yusef Yusef Anwar

Permission to appeal may properly be granted where the proposed appeal raises an arguable legal distinction material to the outcome. A case concerning a person who could not yet be safely returned to the country of origin may not determine the position of a person who is arguably already a refugee and whose proposed internal relocation is to a different region. The practical accessibility of a safe internal relocation area and the reasonableness of relocation are distinct questions.

The applicant appealed from the Immigration Appeal Tribunal in proceedings concerning removal to Iraq and the possibility of internal relocation to the Kurdish Autonomous Region. Permission had previously been refused on the papers. The refusal relied on Gardi [2002] 1 WLR 2755, where the applicant was found not to have a well-founded fear of persecution in the Kurdish Autonomous Region, and on the need for an applicant to establish undue hardship in relying on internal relocation. The central issue was whether the applicant's different place of origin created an arguable distinction affecting refugee status and the internal relocation question.

1. The applications were allowed and permission to appeal was granted. The substantive appeal was not determined.

2. Per Lord Justice Simon Brown, the applicant came from the Ba'ath Party-controlled area of Iraq, unlike the applicants in Gardi and the other cases raising the same points, who came from the Kurdish Autonomous Region. That factual distinction gave rise to a reasonable prospect of arguing that the applicant was a refugee, whereas Gardi had been treated as involving a person who was not a refugee but could not yet be safely returned home.

3. The question whether a person who is a refugee can reasonably be expected to relocate to the Kurdish Autonomous Region, once that relocation can safely be achieved, was materially different from the question considered in Gardi. The protection test could therefore not be treated as irrelevant at the permission stage.

4. The court regarded the reasoning in Gardi as deserving considerable respect and as remaining persuasive despite its formal annulment, while distinguishing its application on the materially different facts. Lord Justice Clarke agreed.

5. The secondary grounds concerning undue hardship were treated with caution. The court considered that the reasoning relied on in refusing permission substantially answered that point, although it did not exclude argument on it without hearing counsel.

• Immigration Appeal Tribunal: decision under appeal; the judgment does not give a citation.
• Court of Appeal (Civil Division): applications allowed and permission to appeal granted under [2002] EWCA Civ 1726. The substantive appeal was directed to be heard by three Lords Justices.