MH (Iraq) v Secretary of State for the Home Department

In an internal relocation case, acceptance of risk in the claimant’s home area does not require a finding of risk throughout the country. The decision-maker must assess the proposed place of relocation, including the real risk of identification and subsequent ill-treatment and whether relocation would be unduly harsh. An asylum seeker bears the burden of establishing the claim, but for future events that burden is met by showing a real, rather than fanciful, risk. A tribunal’s assessment will not be irrational merely because country evidence is conflicting or permits another view, provided its reasons engage with the evidence. A general observation that evidence about a purported hit list is vague does not impose a requirement for positive proof that the claimant’s name appears on it.

The appellant, an Iraqi Sunni Muslim and former member of the Iraqi army and Ba’ath party, claimed asylum after leaving Iraq. The adjudicator accepted that he faced a well-founded fear of reprisals in southern Iraq but found that internal relocation to Baghdad or another northern area would not be unduly harsh.

The Asylum and Immigration Tribunal found errors of law in the adjudicator’s treatment of the objective evidence and ordered reconsideration. The reconsideration was limited to the possible application of Article 1F of the Refugee Convention and the safety and reasonableness of relocation. The Senior Immigration Judge rejected the Article 1F argument, found no real risk of identification and persecution outside the south, and rejected the Article 3 claim. The appeal concerned alleged irrationality, misuse of the evidence concerning hit lists, and application of the standard of proof.

Appeal dismissed. The Court of Appeal, in a judgment given by Lord Justice Laws and agreed with by Lord Justice Mummery and Mr Justice Blackburne, held that the Senior Immigration Judge’s determination disclosed no error of law.

1. Internal relocation. The case concerned internal flight. Risk in the appellant’s home area was accepted, so the relevant question was whether he faced a real risk of identification and subsequent ill-treatment in the proposed area of relocation, and whether relocation would be unduly harsh. The assessment properly included practical matters concerning movement and documentation, as well as the appellant’s personal circumstances. The conclusion that relocation to Baghdad or a predominantly Sunni area was not unduly harsh was open to the tribunal: Januzi was applied in the assessment.
2. Irrationality. Country evidence concerning former Ba’ath party members and hit lists was mixed and did not provide an unequivocal prediction of future events. An appellate court should not interfere where the tribunal has reached a considered judgment within the range of rational decisions and its reasons track the evidence. The Senior Immigration Judge’s reasoning was not a bizarre departure from the evidence.
3. Hit-list evidence. The Senior Immigration Judge’s observation that there was no evidence about the nature of the lists or the likelihood that persons such as the appellant would appear on them did not impose a requirement for positive proof that his name was listed. It was an assessment of the vague and unparticularised nature of the material.
4. Standard of proof. The burden rests on the asylum seeker. In relation to future events, it is discharged by showing a real, rather than fanciful, risk. This lower standard was correctly stated and applied: Aziz v Secretary of State [2003] EWCA Civ 118, Sivakumaran [1998] IAR and Kacaj [2002] Immigration Appeal Reports.
5. Article 3. The appellant accepted that essentially the same arguments applied to Article 3 as to undue harshness, and there was no contention that conditions in Iraq generally crossed the Article 3 threshold. The rejection of the internal-relocation claim therefore also disposed of the Article 3 claim.

The appeal was dismissed. The costs order against the appellant was not to be enforced without leave of the court, and the appellant’s publicly funded costs were to be subject to detailed assessment.

• Court of Appeal (Civil Division): Appeal against the Senior Immigration Judge’s October 2006 determination dismissed. [2007] EWCA Civ 852.
• Asylum and Immigration Tribunal: On 9 March 2006, the Tribunal found errors of law in the adjudicator’s decision and ordered reconsideration. Following reconsideration, the Senior Immigration Judge rejected the Article 1F argument, found that internal relocation was available, and dismissed the appellant’s claim.
• Adjudicator: The appellant’s asylum appeal was dismissed on 3 August 2004. The adjudicator accepted risk in southern Iraq but found an internal flight alternative in Baghdad or elsewhere.