Kurdu, R (on the application of) v Immigration Appeal Tribunal

In assessing refugee status, internal relocation must be considered holistically. A well-founded fear of persecution in the claimant’s home area does not necessarily establish refugee status if there is another part of the country where the claimant would be safe and could reasonably be expected to live. The fear and protection aspects of the Refugee Convention are distinct but interconnected; they should not be treated as wholly separate compartments. Access to the safe area may be addressed by an undertaking concerning safe return. A decision-maker need not refer expressly to every item of evidence if the essential issues are addressed and the reasoning shows that the relevant evidence was considered.

The claimant, an ethnic Kurd from Halabja, sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The Adjudicator accepted that he had a well-founded fear of persecution in Halabja because of his ethnicity and political opinion. She nevertheless dismissed his asylum appeal after finding that he could relocate to another part of the Kurdish Autonomous Region where the Islamic Movement of Kurdistan had no influence and that relocation would not be unduly harsh.

The claimant challenged the Adjudicator’s approach to internal relocation, her treatment of practical access to northern Iraq, and her consideration of the evidence. The central issue was whether the existence of a safe and reasonably accessible internal protection alternative could defeat the asylum claim.

1. Judicial review dismissed. The Adjudicator had not misdirected herself in asking whether the claimant could relocate to an area where he would be safe and where it would not be unduly harsh for him to live. Her formulation was a succinct statement of the question required by the Refugee Convention.
2. The distinction between the “fear test” and the “protection test”, recognised in Adan v Home Secretary [1999] 1 AC 293, did not require the issues to be treated as wholly separate. Applying the holistic approach recognised in Horvath v Home Secretary [2000] 3 WLR 379, matters relevant to one aspect could also bear on the other.
3. The reasoning in Gardi v Home Secretary [2002] 1 WLR 2755 supported the conclusion that a person who could reasonably relocate to a safe part of the country would not necessarily be a refugee merely because the safe area was not under the control of a body equivalent to a state. The practical difficulty of reaching northern Iraq did not alter that principle. The Secretary of State’s undertaking that return would occur only when safe, and would not be via Baghdad, provided a relevant measure of protection.
4. The observations in Karanakaran v Home Secretary [2000] 3 All ER 449 required care because that case had not directly decided the issue. They nevertheless illustrated the unitary and holistic evaluation required by the Convention.
5. The IAT was entitled to refuse leave because the material before it disclosed no obvious ground of appeal with a strong prospect of success, applying R v Home Secretary ex parte Robinson [1998] QB 929. The Adjudicator was not required to refer to every item of evidence where she addressed the essential issues and gave adequate reasons.

Permission to appeal was subsequently granted because the parties identified four other appeals raising essentially the same legal issues. The usual costs order was made against the publicly funded claimant.

1. High Court (Administrative Court): Judicial review of the IAT’s refusal of leave was dismissed. Permission to appeal to the Court of Appeal was granted because other appeals raised essentially the same legal issues.
2. Immigration Appeal Tribunal: On 18 September 2001, the IAT refused leave to appeal from the Adjudicator’s decision.
3. Adjudicator: On 20 August 2001, the appeal against the Secretary of State’s refusal of asylum and removal directions was dismissed.