Azad Gardi v. Secretary of State for the Home Department

Author: Court of Appeal (Civil Division)
Document source:

United Kingdom: Court of Appeal (England and Wales)
Date:
24 May 2002

In this section

This appeal from the Immigration Appeal Tribunal ("IAT") concerns the meaning of "refugee" in Article 1 of the 1951 Convention Relating to the Status of Refugees (the "1951 Convention"), as amended by the 1967 Protocol. The appellant also made a complaint about the procedure adopted by the IAT in dealing with this case.

"The appellant, Mr Azad Gardi, is a national of Iraq. He is ethnically a Kurd. He claims to have arrived in the United Kingdom on 8 August 2000 hidden in a lorry. He had no valid travel documents and was an illegal entrant. He claimed asylum by post, but his claim was refused by the respondent on 7 January 2001.

By a notice dated 12 January 2001, Mr Gardi was informed that directions had been given for his removal as an illegal entrant. He appealed to a Special Adjudicator under section 69(5) of the Immigration and Asylum Act 1999 on the basis that his removal in pursuance of directions would be contrary to the 1951 Convention. His appeal was heard on 12 April 2001 and decided by a determination promulgated on 27 April 2001.

Mr Gardi had lived in the northern part of Iraq within the Kurdish Autonomous Region (""KAR""), also referred to as the Kurdish Autonomous Zone (""KAS"") and the Kurdish Autonomous Area (""KAA""), an area which borders upon Iran, Turkey and, to a limited extent, Syria. That region had been granted considerable devolved powers of internal self-government by a statute of 1975, but violent conflict between the Iraq government and the Kurds continued. Since the 1991 Gulf War, the KAR has benefitted from the Western-imposed ""no-fly zone"". The evidence showed that the KAR was not a single unified area but rather one where different parts were controlled by the Kurdistan Democratic Party (""KDP""), the Patriotic Union of Kurdistan (""PUK"") and to a lesser extent the Islamic Movement for Iraq Kurdistan (""IMIK""). The KDP and PUK had fought one another from 1994 until a ceasefire in 1998, but relations between them remained strained.

Mr Gardi put forward two bases for claiming that he had a well-founded fear of persecution for a Convention reason. The first was that he had avoided taking part in military service with the Iraqi government, because he did not want to fight his own people. That meant he would now be shot by the Iraqi authorities if caught. Secondly, he claimed that he was at risk from the KDP because he was a supporter of the PUK. He had been a telephone operator for the PUK and had been detained for three years by the KDP, during which time he had been tortured. "

"Paragraph 38: Had it been necessary to decide it, I would have been inclined to find in favour of the appellant on the ?protection test?. However, that is the second stage of any assessment of a claim by a person to be a refugee. The first stage requires him to meet the ?fear test?, and for the reasons set out I can only conclude that that test is not met. The IAT was right to conclude that the appellant is not a person who has a wellfounded fear of persecution for a Convention reason.

Paragraph 44: I am satisfied that there was here a significant procedural error which deprived the appellant of the opportunity to present his case in full. It is right that there can sometimes be circumstances where it is obvious that, despite a procedural error, the conclusion arrived at was inevitable and it would not be appropriate to remit the matter to the tribunal below. This, however, is not such a case. The Special Adjudicator?s conclusion on the appellant?s credibility involved, as so often in these cases, a process of setting his account against the backcloth of information about the situation in his country and in particular in this case the KAR. The appellant?s advisers put in fresh evidence to the IAT on the background of the situation in the KAR, and one cannot accept that the evidence against Mr Gardi was so overwhelming that the outcome on these further issues was inevitable. Particularly in asylum cases, where a tribunal has to give ?the most anxious scrutiny? to a decision refusing asylum (see R ?v- Home Secretary, ex parte Bugdaycay [1987] AC 514, per Lord Bridge), it would only be in an extreme case that such a procedural error could be treated as of no practical effect. This case does not come into that category.

Paragraph 45: I would, therefore, dismiss this appeal insofar as it relates to the meaning of ?refugee? under the 1951 Convention, but allow it on and only on the procedural issue. In those circumstances I would remit this case to the IAT for there to be a hearing on the factual issue relating to whether or not the appellant has a well-founded fear of persecution in the KAR."

Appeals must be dismissed. The Court found that there was a significant procedural error which deprived the appellant of the opportunity to present his case in full. Appeal allowed to the extent that it could be remitted to the Immigration Appeal Tribunal for the determination of the factual issue relating to whether or not the appellant had a well-founded fear of persecution in the Kurdish Autonomous Area of Iraq.

Author

Court of Appeal (Civil Division)

Title

Azad Gardi v. Secretary of State for the Home Department

Document source

United Kingdom: Court of Appeal (England and Wales)

Date

24 May 2002

Document number

C/2002/0193; EWCA Civ 750

Document type

Case Law

Additional document information

Collection

Case Law

Legal instruments

1951 Refugee Convention

1967 Protocol relating to the Status of Refugees

Country

United Kingdom of Great Britain and Northern Ireland (the)

Iraq

Keywords

Well-founded fear of persecution

Region

Europe

Protected persons

Asylum-seekers

Comments:

Dismiss this appeal insofar as it relates to the meaning of ?refugee? under the 1951 Convention, but allow it on and only on the procedural issue; Permission to appeal to this court was granted by the IAT itself.

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Azad Gardi v. Secretary of State for the Home Department

Azad Gardi v. Secretary of State for the Home Department

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