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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> AM (IWCP, Conditions in Mosul) Iraq CG [2004] UKIAT 00263 (22 September 2004) URL: http://www.bailii.org/uk/cases/UKIAT/2004/00263.html Cite as: [2004] UKIAT 00263, [2004] UKIAT 263 |
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AM (IWCP – Conditions in Mosul) Iraq CG [2004] UKIAT 00263
Date of hearing: 13 & 14 July & 4 August 2004
Date Determination notified: 22 September 2004
Secretary of State for the Home Department | APPELLANT |
and | |
AM | RESPONDENT |
The Respondent's Claim
The Adjudicator's Determination
"I find that [ ] is an Iraqi Kurd; that he was a member of an IWCP cell; that his home was raided; and that he feared persecution from the former Iraqi regime."
7.2 In August 2003 the UNHCR noted that the prevailing conditions in Iraq are characterised by an absence of law and order in many parts of the country. UNHCR is not yet promoting voluntary returns. They advise states to be mindful of the possibility of persecution emanating from non-state agents, particularly given the absence of effective national protection in Iraq. Similarly, atrocious forms of past persecution should favourably be taken into account in the determination process.
7.3 Since August 2003, the security situation in Iraq has not improved. Commentators have suggested that, in spite of the appearance of the Interim Advisory Council, in reality there is a political and security vacuum in Iraq. There are daily reports of attacks on coalition forces. ICRC has, very unusually in such situations, closed its Baghdad and Basra offices after a car bomb at their headquarters killed 12 people. In August 2003, 22 people were killed in a car bomb attack on the UN headquarters in Baghdad. As a result, in September 2003, the UN cut the number of its international staff in Iraq, leaving fewer than 50 foreign employees in the country. There is much evidence to show that the coalition forces are not able to secure that they are effectively protected, let alone a position to offer protection to Iraqi civilians. The attacks are not confined to the coalition forces: radical Islamist groups have threatened people whom they perceived as presenting an obstacle to their policies. It is estimated that thousands of Iraqis have been killed since the end of the war.
7.4 The CIPU report (August 2003) suggests that persons within the former Kurdish autonomous zone (KAZ) who have a localised problem can safely and reasonably relocate within the former KAZ to the Kurdish dominated areas outside of the former KAZ or elsewhere. The KDP and the PUK are in de facto control of the KAZ and are considered capable of offering protection to those who reside in their respective territories and there is a system in place to provide such protection. In September 2003 a car bomb exploded in the Iraqi Kurd region, killing 1 and injuring 47
7.5 With regard to the IWCP, its relationship with the official Kurdish parties has been strained over the years. It is not being allowed to operate in the Kurdish controlled area of Iraq. The organisation's activities have been banned by the KDP. It is the only party which had no office, no radio station and was not allowed to publish a newspaper (although the organisation published papers which were distributed in secret). The secret police of the KDP keep the IWCP under constant surveillance and have arrested their activists. In the past, the regional government of Kurdistan (which represented both the KDP and the PUK) have backed the Islamists against the IWCP.
1. The Respondent, when he came to the UK to seek international protection had a well founded fear of persecution from the Saddam regime. The Adjudicator had to consider whether in the light of the current circumstances and the overthrow of the Saddam regime that fear is still well founded
2. IWCP represents a political philosophy that is outside the mainstream policies of the activist groups in Iraq. Historically, it has been disliked by the radical Islamists, who are presently seeking to entrench and spread their support. From the objective material it is clear that anyone who is openly flouting radical Islamic principles (such as the selling alcohol) is being threatened by the Islamists. The IWCP was equally seen by the Baath regime as presenting a real threat to their power base in Iraq and the incidents of persecution under the Saddam regime are well recorded.
3. The Respondent remains an activist within IWCP and cannot be expected to relinquish his ideals. If he were to go to Baghdad and continue his activities, there is a real danger that Islamists and other groups opposed to IWCP would pose a real threat to him.
4. The coalition forces are not in a position to protect themselves or the international organisations, let alone Iraqi individuals who fear persecution.
5. The Respondent could not go to the KAZ because the KDP and the PUK have been traditionally strongly opposed to the IWCP. They would offer some reasonable protection to their own within their region but that would not include members of IWCP.
8.8 Taking into account all of the above, I am sure that this [Respondent's] fears of persecution as a member of the IWCP may well be realised if he is returned. He is a member of the IWCP whose home has been raided. He is known therefore as an activist. He remains an activist. As such, he is vulnerable wherever he goes in Iraq. He cannot call upon the coalition forces for protection. He cannot go to the KAZ or any other Kurdish dominated area and seek protection for reasons I have outlined above. For these reasons I do not consider that "internal relocation" is a viable option for [ ].
The Grounds of Appeal
1. It is respectfully submitted that the Adjudicator has erred in his determination in failing to cite the source of the objective evidence that a member of the Iraqi Workers Communist Party would be liable to persecution at the present time in Baghdad (paragraph 8.4 of the determination) or in the Kurdish Autonomous Zone (paragraph 8.6). Since we do not have the sources, we cannot consider any such objective evidence
2. It is again submitted (as was stated by the Respondent at the hearing, paragraph 8.3 of the determination refers) that the coalition forces are taking steps to control the actions of activists in the Baghdad area, which, it is submitted, would minimise any possible risk to an IWCP member from Islamic extremists.
Therefore the determination cannot stand.
Submissions
Assessment of Adjudicator's Determination
"In every case the Appellant assumes the burden of showing that the judgment appealed from is wrong. The burden so assumed is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. An Appellant, if he is to succeed, must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and indeed may express itself in such terms. The true distinction is between the case where the court of appeal might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning and the application of the relevant law, require it to adopt a different view. The burden which an Appellant assumes is to show that the case falls within this latter category."
Risk as a Member of IWCP
Iraqi Workers' Communist Party (IWCP/WCPI)
The IWCP is represented in KDP territory although, strictly speaking, an illegal party there, not being officially registered and authorised to engage in political activities. The IWCP increasingly includes extreme left-wing Iranians. The party's supposedly anti-nationalist and anti-religious leanings cause friction with the KDP and have of late also been giving rise to trouble with the PUK.
The IWCP is nevertheless officially represented in PUK territory, having its head office and radio station in Sulleymania. The party publishes the newspaper "Bopeshawa". Relations between the IWCP and the PUK could until a short while ago be described as reasonably good. The PUK used to assist the IWCP by means of monthly donations. Recently however some tension has arisen, partly as a result of an accusation of illegal fundraising levelled at the IWCP by the PUK and an investigation into IWCP involvement in the deaths of two former IWCP members. There are also rumours abroad of an IWCP rapprochement with Baghdad. Fierce animosity is felt between the IWCP and the Islamic Movement in Kurdistan (IMIK). The IWCP arouses irritation, not only on the part of IMIK, by its extreme political views, which often run directly counter to Kurdish traditions. At the funeral of the IWCP's founder, Farad Farradj, for instance, the Internationale blared forth. IMIK was suspected of involvement in the murder of two IWCP members in Sulleymania in October 1999. IWCP earlier accused "Islamic groups in the city of Arbil" of the murder of two IWCP members on 18 April 1998. To the best of our knowledge however there have been no really large-scale incidents between IMIK and IWCP.
Workers' Communist Party of Iraq (WCPI or Iraqi Workers' Communist Party (IWCP)
The Workers Communist Party of Iran website reported on 25 April 2003 that the WCP of Iraq had established two offices in the Bab-al-Sharjy and Keradeh districts in Baghdad, in Kirkuk and in several other Iraqi cities. A meeting with cadres and members was held in Nasiriyah and mass meetings held in Baghdad, Mosul, Tuz and Kirkuk. Several thousand copies of the weekly newspaper were distributed.
On 26 June 2003 the Independent Media Centre Ireland carries what appears to be a news release by IWCP itself. It announced that:
Following ten years of clandestine activity, the WCPI has begun overt activities in Baghdad and in central and southern cities of Iraq.
WCPI launched a wide movement to set up mass organisations, trade unions and workers councils, supporting women in Iraq to establish their organisations
WCPI's radio and offices in Kirkuk are the only part of the city's politics to which people could turn, in order to stop the bloody ethnic cleansing and national conflicts.
IWCP was formed in 1993 from four small communist groups. The IWCP accused the PUK of attacking the organisation's office in Sulleymania in 2000. The PUK also reportedly prevented the IWCP from holding its second conference in December 2002, according to a report by the BBC on 13 January 2003.
"Over the years, the WCPI has fought for the overthrow of the Baathist regime and has been unequivocally opposed to the economic sanctions and the war against Iraq. Following the fall of the Baathist regime, the WCPI has announced that the USA-imposed government has no legitimacy as far as the people of Iraq's interests are concerned. The WCPI has strongly condemned a US envoy, General Garner's attempts to impose such a government as well as the efforts of Islamic groups to determine the future government of Iraq into a religious one".
"He is a member of the IWCP whose home has been raided. He is known, therefore, as an activist. He remains an activist. As such, he is vulnerable wherever he goes in Iraq.
Risk as a Kurd in Mosul
"A UK/Danish fact-finding mission report to Damascus, Amman and Geneva reported in August 2003 that in Mosul and Kirkuk the situation was good immediately after the war but had since deteriorated, with increasing tension between Kurds and Arabs over de-arabisation, although these problems had not been as severe as anticipated. Nonetheless, the situation remained much better than in Baghdad and the Sunni triangle. However on 27 April 2004 the Lebanese newspaper the Daily Star reported that "in recent weeks many Kurds have been killed in Mosul, where Kurds from Irbil and Dohuk now avoid travelling."
Decision
Spencer Batiste
Vice-President
Approved for electronic transmission