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

On a renewed application for permission to appeal in an asylum case, permission should be granted where the tribunal arguably failed to engage with material evidence bearing on real risk, including the persistence of a blood feud, obstacles to mediation and the adequacy of state protection. An issue of internal relocation may fall within the scope of a remittal where it follows from the remitted human-rights appeal and was argued without objection. Where relocation is affected by a pending Court of Justice ruling on Article 15(c) of the EC qualification directive, the court may stand that issue over while allowing an application to have the appeal proceed together.

An Iraqi Kurd claimed asylum on the basis of a blood feud and alleged inadequate state protection. The Secretary of State refused the claim. An adjudicator accepted the appellant as credible but dismissed the appeal, finding no persecution for Refugee Convention purposes.

An earlier Court of Appeal decision allowed an appeal and remitted the matter for reconsideration on the basis of the adjudicator’s factual findings and up-to-date evidence concerning Kurdish Iraq. The Asylum and Immigration Tribunal then found no real risk of persecution and held that the appellant could relocate within the Kurdish Regional Government area or elsewhere in Iraq. It refused permission to appeal. The central questions were whether permission should be granted on risk and relocation, and whether the relocation issue should be stood over pending [2008] UKAIT 00023 and the reference in Elgafaji.

1. Risk. The application for permission to appeal on risk was granted. The tribunal had reasoned that evidence of blood feuds in the Kurdish Regional Government area was limited, that it was unclear whether this feud persisted, that mediation might resolve it, and that sufficient state protection existed. There was, however, material evidence which the tribunal had not properly addressed.
2. The evidence included the operational guidance note, the ECRE guidelines and Ms O’Shea’s evidence that Iraq had a culture of blood feuds. Her evidence was that such feuds could persist for many years or generations. She also identified a political dimension because the families belonged to different political parties, making mediation extremely difficult or impossible. Evidence that the police had previously been unable to protect the appellant or other family members, together with further evidence from Ms O’Shea and ECRE, also required engagement. These omissions provided sufficient grounds for permission, notwithstanding the earlier paper refusal based on whether the tribunal’s treatment of Dr George’s evidence was perverse.
3. Relocation. The relocation issue was before the tribunal. It was a consequence of the remittal, became relevant through consideration of the human-rights appeal and was addressed by both parties without objection. The appellant could not therefore contend that relocation was outside the scope of the tribunal’s consideration.
4. Case management. Permission on relocation was stood over. The court granted liberty within fourteen days to apply for the whole appeal to proceed together. Otherwise, the relocation issue was to be considered by the court hearing the risk appeal or after the likely test case following the Court of Justice’s judgment on Article 15(c) of the EC qualification directive, referred to as Elgafaji. The formal order was that the application was granted in part.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted on the risk issues. Permission on relocation was stood over, with liberty to apply within fourteen days for that issue to proceed with the risk appeal.
• Asylum and Immigration Tribunal: Following remittal, the tribunal found no real risk of persecution, held that internal relocation was available within the Kurdish Regional Government area or elsewhere in Iraq, and refused permission to appeal.
• Earlier Court of Appeal stage: The court had allowed an earlier appeal and remitted the case for reconsideration on the existing factual findings and up-to-date evidence about Kurdish Iraq.