Inner House refuses permission to appeal asylum decision by Iraqi policeman who claimed to have witnessed corruption



Lord Turnbull
Lord Turnbull

An Iraqi police officer who sought asylum on the basis that he was at risk of persecution if he returned to Iraq has been refused permission to appeal against a decision not to allow him to proceed with a judicial review of the decision to reject his application.

The appellant, referred to as COF, had been refused permission to appeal against a decision of the First-tier Tribunal to uphold the decision of the Secretary of State for the Home Department. The Lord Ordinary rejected his petition on the basis that it did not have a real prospect of success.

The appeal was heard in the Inner House of the Court of Session by Lady Paton, Lord Turnbull, and Lord Woolman. The appellant was represented by Winter, advocate, and the Home Office by G Middleton, advocate.

Uncovered persecution

It was claimed by the appellant that he, while working near an oil refinery in the Kurdistan region of Iraq in December 2018, had attempted to prevent the removal of oil from the refinery by five tanker drivers who claimed to be operating under the instruction of the Patriotic Union of Kurdistan (PUK). He was subsequently told by his superior officer to allow the tankers to take the oil.

Following this incident, on the evening of 1 January 2019, the appellant and a colleague of his were fired on from a car while they were walking to a coffee shop, resulting in the death of his colleague. He fled from Iraq the next day.

The appellant claimed he was at a real risk of persecution if he returned to Iraq, on the basis that he had uncovered corruption carried out by the PUK and, having voiced opposition to this, his life was in danger. In support of his application, he relied on a document bearing to be a warrant for his arrest and a country expert report. However, the First-tier Tribunal largely disbelieved his account of the events that took place at the oil refinery and refused his application.

Permission to appeal the decision of the FtT was refused by the Upper Tribunal on the ground that no arguable error of law was disclosed by the appeal. The petition for judicial review was based on assertions that the Upper Tribunal had erred in not recognising that the FtT gave inadequate reasons for rejecting the evidence of the appellant and had failed to recognise the duty of the Home Secretary to verify the content of the arrest warrant.

The Lord Ordinary held that there was no valid criticism of the FtT’s assessment of the evidence, observing that the country expert report referred to risk to activists and journalists but not to police officers. He accepted there was a duty to investigate documents to determine their provenance if they were central to the issue to be decided, but in this case that was not necessary as the FtT had rejected the appellant’s account on the basis of inconsistencies in his evidence.

Counsel for the appellant submitted that the FtT judge had provided no good reason for giving the arrest warrant little weight, and that due to the centrality of the warrant to his claim the respondent ought to have verified it, especially given that the specified offence in the warrant carried the death penalty. Further, when read properly the country report indicated that those who were at risk were persons who had uncovered and exposed corruption and did not indicate that the appellant’s claim was unfounded.

Beyond criticism

Delivering the opinion of the court, Lord Turnbull said of the FtT’s judge’s analysis: “The First-tier Tribunal judge considered that the terms of the warrant were remarkably wide, being addressed to ‘anyone receiving this arrest warrant’. He also noted that there was no evidence to suggest that this was a normal provision. He was entitled to make such an observation given that evidence had been led from a country expert who had not been asked to support or comment on the authenticity of the warrant. The judge’s decision to give little weight to the arrest warrant is beyond criticism.”

He continued: “Since there is no obvious or logical connection between the arrest warrant and the account of events given by the appellant, the warrant cannot be said to be central to his request for protection. There was therefore no duty on the respondent to verify its authenticity. In any event, it adds nothing to the claim for protection.”

Considering the judge’s assessment of the country report, Lord Turnbull said: “It is to be noted that the report did not provide direct support for any aspect of the appellant’s claim. It did not vouch the existence of a refinery at the location described by the appellant, it provided no support for the suggestion of theft of oil by the PUK and it provided no support for the authenticity of the arrest warrant, far less for the suggestion as to why it might be issued.”

He concluded: “The arguments presented on behalf of the appellant have no merit. There was no error of law on the part of the Upper Tribunal. It follows that we are not satisfied that the application has a real prospect of success, or that the appellant has made out legally compelling reasons for allowing the application to proceed.”

The appeal was therefore refused.

© Scottish Legal News Ltd 2021



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