DK v Secretary of State for the Home Department

In refugee protection cases, the question is whether the relevant state or de facto authority is capable of providing adequate and effective protection. The standard does not demand absolute or round-the-clock protection. Nor must an applicant show that the protective machinery has totally collapsed. An appellate tribunal must engage with material expert evidence, explain why it rejects that evidence, and respect accepted findings of fact made by the hearing adjudicator. A tribunal that doubts an accepted incident, overlooks relevant evidence, or substitutes an unsupported inference for an accepted factual finding errs in law. The appeal was allowed and remitted for reconsideration on the accepted facts and up-to-date evidence.

DK, an Iraqi Kurd, arrived in the United Kingdom in 1999 and claimed asylum based on a longstanding blood feud with the Rash family. The Secretary of State refused the claim on 23 May 2001. An adjudicator dismissed his appeal on 21 January 2002. The Immigration Appeal Tribunal then dismissed a further appeal on 9 August 2002: [2002] UKIAT 03608. It held that protection was available in KDP-controlled areas and questioned whether a 1998 shooting had occurred. The appeal concerned the Tribunal’s approach to the capability of protection and to evidence concerning the shooting, threats and alleged feud. Refugee Convention and Article 3 human-rights grounds remained in issue.

Appeal allowed unanimously and remitted. Brooke LJ gave the judgment, with which Sedley LJ and Hughes LJ agreed. The matter was remitted to the Asylum and Immigration Tribunal for reconsideration.

1. The IAT’s treatment of Dr O’Shea’s evidence was unsatisfactory. Her evidence was clear and coherent on material issues. The IAT did not say that it rejected her evidence, but merely stated that it did not greatly assist DK without explaining why.
2. The IAT was wrong to infer that the blood feud had ended with the killing of DK’s father after finding that the Rash family had no causal responsibility for that killing. It also overlooked DK’s evidence that threats had been made against him as his father’s eldest son.
3. The adjudicator had accepted DK’s evidence that he could identify the member of the Rash family who shot at him from a taxi. The IAT had not heard DK give evidence and therefore could not properly doubt whether the incident had occurred.
4. The relevant protection issue was whether the KDP was capable of providing adequate and effective protection, not merely whether its police were willing to do what they could. Protection on an absolute or 24-hour basis could not reasonably be required, applying the principle in Horvath v Home Secretary [2001] 1 AC 489. However, an applicant need not establish that protective machinery had totally collapsed, applying Noune v SSHD [2001] INLR 526.
5. The Refugee Convention and human-rights appeals were to be reconsidered on the basis that the adjudicator’s factual findings stood and on up-to-date evidence about conditions in Kurdish Iraq.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the Refugee Convention and human-rights appeals to the Asylum and Immigration Tribunal for reconsideration on accepted facts and up-to-date evidence.
• Immigration Appeal Tribunal: On 9 August 2002, dismissed DK’s appeal from the adjudicator’s determination: [2002] UKIAT 03608.
• Adjudicator: On 21 January 2002, dismissed DK’s appeal against the Secretary of State’s refusal of his asylum claim.
• Secretary of State for the Home Department: On 23 May 2001, refused DK’s asylum claim.