Gardi v Secretary of State for the Home Department

Refugee status requires both a current well-founded fear of persecution for a Convention reason and inability or unwillingness to avail oneself of national protection. Where a claimant can safely return to a home area, danger elsewhere in the country does not satisfy the fear test. A claimant need not be returned through territory where persecution would occur, since that would breach non-refoulement. However, practical inability to reach a safe home area does not itself create refugee status where the Secretary of State undertakes not to use a Convention-incompatible route. In asylum appeals, a tribunal must give anxious scrutiny to material factual grounds and should remit the case where a significant procedural error deprived the claimant of a fair opportunity to present them.

Mr Gardi, an Iraqi Kurd from the Kurdish Autonomous Region, claimed asylum after entering the United Kingdom. The Special Adjudicator rejected his account of persecution in his home area but allowed his appeal because return via Baghdad exposed him to a real risk of persecution.

The Immigration Appeal Tribunal treated the case as a test case, accepted an undertaking that he would not be returned through Iraqi-government territory unless a Convention-compliant route existed, and allowed the Secretary of State’s appeal. The Court of Appeal considered whether the inability presently to reach the Kurdish region made Mr Gardi a refugee and whether the Tribunal had unfairly determined the legal issue without hearing his factual challenge.

Keene LJ delivered the leading judgment. Sir Martin Nourse and Ward LJ agreed. The appeal was dismissed insofar as it concerned the meaning of refugee under the Convention, but allowed on the procedural issue and remitted.

1. Article 1A(2) imposes two cumulative requirements: a fear test and a protection test. Following Adan v Secretary of State for the Home Department [1999] AC 293, a current well-founded fear is required. The court accepted that current fear is sufficient for the first limb.
2. The court followed the approach in Canaj [2001] INLR 342 and approved the summary in Dyli [2000] INLR 372. If a claimant has no well-founded fear in the home area, danger in other parts of the country does not make the claimant a refugee. The home area must not be defined too narrowly where ordinary daily movement extends beyond a village or town. The principle in R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929 supported the same conclusion.
3. Removal through Baghdad or other territory controlled by the Iraqi government would breach the non-refoulement principle reflected in Article 33 of the Refugee Convention and Article 3 of the European Convention on Human Rights. The Secretary of State’s undertaking meant that such removal would not occur unless a Convention-compliant route became available. Mere practical inaccessibility of a safe home area therefore did not satisfy the fear test.
4. The court did not need to decide the protection test. Keene LJ indicated that protection appeared to require an internationally recognised entity capable of assuming responsibility under international law, which the Kurdish Autonomous Region did not meet. That reasoning was expressly unnecessary to the result.
5. The Tribunal had committed a significant procedural error by deciding the legal issue on the assumption that there was no risk in the Kurdish region, without hearing the factual grounds in the respondent’s notice or considering fresh background evidence. Given the requirement of the most anxious scrutiny in asylum cases, the outcome was not inevitable. The case was remitted for determination of the risk of Convention persecution or treatment prohibited by the European Convention on Human Rights. There was no order as to costs, save detailed assessment of publicly funded costs.

• Court of Appeal ([2002] EWCA Civ 750 ): dismissed the appeal on the Convention interpretation issue, but allowed it on procedural grounds and remitted the factual and human-rights issues to the Immigration Appeal Tribunal.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal, treating the Secretary of State’s undertaking as binding and concluding that Mr Gardi was not a refugee.
• Special Adjudicator: allowed Mr Gardi’s appeal because return via Baghdad presented a real risk of persecution.