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DK v Secretary of State for the Home Department

DATE: 25 May 2006

The appellant (D), who was an Iraqi Kurd, appealed against a decision of the Immigration Appeal Tribunal upholding the refusal of his claim for asylum. D claimed asylum on his arrival in the United Kingdom through fear of persecution from a long-standing blood feud between his family and another family (R). R had been involved in a plan to remove Iraqi Kurds from their villages to a camp. The feud had arisen when D’s father (F) had been implicated in the killing of a member of R. Some eight years later, F was killed by security forces. D believed that that was revenge from R, who had strong connections with the Iraqi government. D had been made aware that revenge would also be taken against him as the eldest son of F. He and his family moved to another area and obtained the protection of the Kurdish Democratic Party (KDP), and they were initially relatively safe. However, D’s uncle was killed in a fight between two political parties and, four years later, D was shot at from a taxi and he recognised the perpetrator as being a member of R. He notified the police but they were unable to provide him with 24-hour protection and so he left the country. The adjudicator rejected his claim under the Convention relating to the Status of Refugees 1951 (United Nations) on the basis that R were not agents of persecution: it was merely a feud between two families and it was safe for him to return to the areas controlled by the KDP. Before the IAT, evidence was led from an academic (S) who had specialist knowledge of Iraqi Kurdish society. S gave detailed evidence that there had been a distinct breakdown of law and order in Iraq, which made it difficult for the authorities to provide sufficient legal and physical protection. Moreover, she explained that revenge killings were frequent in Iraq and they could last for generations. The IAT did not find that evidence of great assistance to D, and believed that the authorities were able and willing to offer a sufficiency of protection within their capability, and that the 24-hour protection that D had hoped for was simply not practical. The IAT also held that there was no causative link between R and the killing of F, but that nevertheless if there was a blood feud, the killing of F had brought it to an end. Moreover, the IAT doubted whether D had actually been shot at and found that, even if he had, the police had taken steps to catch the offender. D submitted that the IAT had erred in its approach to the issue of protection in fact, and had erred in law in its approach to the evidence, particularly in relation to the alleged shooting of D and the existence of the blood feud.

Held, allowing the appeal, that (1) the IAT had failed to explain why the evidence of S did not assist D. (2) The IAT should have determined whether the KDP was capable of providing D with adequate protection and it was quite clear from the evidence of S that she strongly believed it was not capable of doing so. Moreover, it was not necessary for D to show that Iraq’s protective machinery had totally collapsed before he could successfully claim refugee status, Noune v Secretary of State for the Home Department [2001] I.N.L.R. 526 CA (Civ Div) considered. (3) It had not been open to the IAT, after finding that R had nothing to do with F’s death, to decide that the killing of F had brought the blood feud to an end. (4) D’s evidence that he had been told that revenge would be taken out on him as he was F’s eldest son had been overlooked. (5) The IAT should have accepted the adjudicator’s finding of fact that D had been shot at. (6) The IAT’s approach to the facts was unsatisfactory and the matter had to be remitted.