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

Internal relocation requires two distinct inquiries. First, the claimant must not face a real risk of persecution in the proposed destination. Secondly, relocation must not be unduly harsh. The second inquiry is distinct from persecution and does not require persecution-level harm. It requires assessment of the claimant’s circumstances against conditions generally prevailing in the country and destination, including security, employment, accommodation and other practical difficulties. Specialist country-guidance should be followed unless evidence clearly shows that it is inapplicable or out of date. An appellate court should not decide a new accessibility issue where the tribunal made no findings on it and removal arrangements remain unsettled.

The appellant, an Iraqi Kurd from Kirkuk, challenged an Asylum and Immigration Tribunal decision on a stage 2 reconsideration. The tribunal accepted that he was at risk of persecution in his home region but held that he could safely relocate to Baghdad and that relocation would not be unduly harsh. It relied on the country guidance in SM [2005] UKAIT 00111 and rejected the contention that later evidence required departure from that guidance.

Before the Court of Appeal, the appellant argued that the tribunal had conflated safety with undue harshness, wrongly rejected expert evidence, and failed to consider the dangers and practicalities of reaching Baghdad. The central issues were the correct approach to undue harshness, the continuing effect of country guidance, and whether the unpleaded accessibility issue could be addressed on appeal.

1. Appeal dismissed. The tribunal had not erred in law in finding that the appellant could safely relocate to Baghdad and that relocation would not be unduly harsh.
2. Safety and undue harshness are separate questions. The tribunal had addressed the risk of persecution by reference to ethnicity and then considered matters relevant to undue harshness, including the appellant’s age, health, employment prospects, homelessness and the widespread security and socio-economic conditions in Iraq. Such general conditions were relevant context and could contribute to the assessment; the comparison was not confined to persecution-level harm. This approach was consistent with Robinson [1998] QB 929 and Januzi [2006] 2 AC 426.
3. The tribunal was entitled to follow SM [2005] UKAIT 00111 unless persuaded that its country guidance was inapplicable or out of date. SI [2008] UKAIT 00094, which considered the later evidence, confirmed that relocation of a Kurd to central or southern Iraq could generally be effected without undue harshness, including Baghdad where there was a significant Kurdish community, subject to exceptionally high-profile cases. The Court would not second-guess the specialist tribunal’s assessment of the evidence.
4. The tribunal had not required corroboration of the expert’s evidence. It was entitled to attach weight to the absence of supporting evidence, the lack of detail and the absence of public documentation, and to accept some parts of the expert evidence while rejecting another part.
5. The alleged dangers of access to Baghdad had not been raised below, so no factual findings had been made. In addition, no removal directions had been settled. Accessibility, safety and practicality therefore could not yet be judged meaningfully. If settled removal directions later created a real risk of breach of the Refugee Convention or the European Convention on Human Rights, they could be challenged separately. The approach to obvious points was explained by reference to Robinson and A (Iraq) [2005] EWCA Civ 1438.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 462: appeal from the Asylum and Immigration Tribunal dismissed.
• Asylum and Immigration Tribunal — stage 2 reconsideration in AIT No AA/14270/2006: found that the appellant could relocate to Baghdad without facing persecution or undue harshness.