In HM and others (Article 15(c)) Iraq CG  UKUT 331 (IAC), the UT concluded that the removal of failed asylum seekers to Government Controlled Iraq (GCI) was not in unlawful: there was no general risk of a breach of either the Refugee or the Human Rights Conventions, nor in general was protection required under the Qualification Directive because of risks from indiscriminate violence.
SSHD relied on the above decision to certify Qadar’s fresh asylum claim as clearly unfounded. In challenging those decisions the appellant relied on two arguments. First, there was new country material, which should have impacted on the decision-making; and second that the challenge to HM by way of appeal to the Court of Appeal ought to have an impacted on the SSHD’s reliance on it.
The Danish Immigration Service fact-finding Report (10.09.10): this report predated but was not before the HM Tribunal. Qadar contended the report cast doubt on the HM tribunal’s findings because it recorded an increased number of civilian casualties and that the situation in Kirkuk “is fragile”. The Court observed use of the present tense was misleading because as the report cautioned: “…the report does not contain information other than that which was gathered up until mid-April 2010”. It was therefore not more up-to date than that before the HM Tribunal in the summer of 2010 but simply one further piece of information in an assemblage that the Tribunal recognised did not present a “uniform picture.”
News and other reports about the treatment of individuals returned to Iraq in 2010: a number of returnees claimed they had suffered ill-treatment on return to Iraq. This was recorded by the media and the UNHCR, and formed part of the new material. The HM Tribunal treated such claims with scepticism, and so did the Court, particularly because the SSHD had representatives on the plane and was thus able to take a view about the credibility of what was being said. The Court held that a Home Office report:
… makes reference throughout to verifiable evidence in the form of videotape records, and contemporary records in the form of notes on the passengers’ meals and visits to the WC. It is clear that that evidence shows that what was said to the press and the UNHCR cannot be the truth…
The Judgment of the Supreme Administrative Court of Finland (30.12.10): held an appellant from Iraq was entitled to protection of the Qualification Directive. The Court held the judgment to be of little value mainly because it was an appeal looking historically at the sustainability of an earlier judgment; the appellant had given credible evidence of having suffered in the past, and most important, the judgment did not purport to be a review of the country information anywhere near the scale undertaken in HM.
Accordingly, there was no basis for saying the new material cast any doubt on the conclusions in HM.
Challenge to the Court of Appeal
The second argument was that because HM was under challenge in the Court of Appeal, the SSHD was not entitled to rely on its findings; it was procedurally unfair to certify Qadar’s claim and so remove a right of appeal, when in another similar case there was a pending appeal, and that the grant of permission to appeal in HM obliged the SSHD to treat the new submissions as a fresh claim carrying a right of appeal if refused. The Court rejected this argumen:
The proposition that a decision endorsed as country guidance by the President of the Immigration and Asylum Chamber of the Upper Tribunal loses its force by being challenged, or even by permission to appeal it being granted, I regard as entirely unarguable. The Tribunal has reached a reasoned decision after a review of a mass of relevant evidence. That conclusion remains binding within the terms of the Practice Direction, unless or until it is overturned on appeal or replaced by other guidance. And even if that were not so, it remains in the highest degree relevant to the issues that a decision-maker (whether the Secretary of State, or a representative seeking to advise a claimant) needs to take into account.
As such, neither argument found favour and the Court refused permission.