Iraqi who fled Greece after ‘Golden Dawn’ attacks wins right to ‘in-country’ appeal against refusal of UK asylum and human rights claims

The decision meant that Sharif Kadir would be unable to appeal the decision from within the UK, but a judge in the Court of Session ruled that he should have the right to have his case decided in an “in-country” appeal and that an immigration judge could legitimately take a different view and find in his favour.

Lord Mulholland heard that the petitioner, 54, a Sunni Muslim from an area of Iraq governed by the Kurdish Regional Government, moved to Baghdad but was forced to move eight or nine times to avoid abuse due to the Kurdish war.

Having decided to leave Iraq he left for Turkey in 1998 and then moved to Greece where in June 1999 he applied for asylum.

In 2000 he was granted an entitlement to lawfully remain there and he worked and paid taxes for the next 12 years, before being granted asylum in 2012.

He lived in Greece without significant incident until 2009 when the factory where he worked closed down and thereafter he would attend a local square in Athens where unemployed migrants could seek work.

But while in the square migrants would be targeted and attacked by the ‘Golden Dawn’, which was described as a Neo-Nazi, racist and xenophobic political party.

When the petitioner did not find regular work in the square he sold jewellery in a small shop, in a port region of Athens, but the Golden Dawn sabotaged his stock.

They also patrolled the area, wearing black clothing and engaged in violence towards migrants.

In December 2013 the petitioner’s property was attacked by the Golden Dawn and a petrol bomb was thrown at his home.

He complained to the police but they told him they could not support him, to get out of Greece and that he was not wanted, following which he left the country and entered the UK in February 2014 and claimed asylum.

He claimed that to remove him would be contrary to his human rights in that he had a fear of persecution and harm in Iraq due to his imputed political opinion and a well-founded fear of persecution and harm in Greece due to his race.

In a decision letter dated 3 March 2015, the respondent rejected the petitioner’s claim and certified his asylum and human rights claims as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002 – the effect of which was that he was unable to appeal the decision from within the UK.

The petitioner was subsequently detained and directions were issued for his removal to Greece, but recalled pending the outcome of his application for judicial review.

The petitioner argued that the respondent erred in holding that he would not be persecuted if returned to Greece; that he would be “adequately protected” if returned to Greece, having regard to comparison of the extracts of reports mentioned in the decision letter with the United Nations High Commission for Refugees (UNHCR) report dated December 2014; and that he could live elsewhere in Greece.

It was submitted that certification was a “draconian and formidable measure” reserved for claims which were unarguable and it could not be said that the claim was clearly unfounded when applying anxious scrutiny.

A tribunal judge could hold that the petitioner would be persecuted upon his return to Greece and that an immigration judge would undertake a more detailed examination of the facts and law in contrast to the more “rudimentary process” that the decision maker is able to undertake and reach a different view to that of the respondent.

Further, it was argued that there were substantial grounds for believing that, contrary to article 3 of the European Convention on Human Rights, there was a “real risk” that he would be subjected to inhuman or degrading treatment.

The respondent failed to evaluate the evidence of the petitioner in his interviews, which was consistent with “hostility to migrants” as confirmed by the respondent’s own guidance and relevant ECHR and UNHCR reports on the situation of asylum in Greece.

In a written opinion, Lord Mulholland said: “The respondent has certified the claim as clearly unfounded. In my view an Immigration Judge having considered the COI material set out in the decision letter together with the UNHCR report dated December 2014 and the petitioner’s accounts could legitimately take a different view to that of the respondent and find in favour of the petitioner.

“I am therefore of the view that the respondent erred in holding that the claim was clearly unfounded. An immigration judge could agree with her decision, but looking at the COI (Country of Origin Information) material and the UNHCR report a judge could legitimately take a different view and there is a real prospect of success. The petitioner should have the right to have this decided in an ‘in-country’ appeal.”

He added: “Given this decision it is unnecessary for me to determine the petitioner’s human rights claim and the internal relocation issue which are covered in the same broad territory as the sufficiency of protection and persecution issues that I have ruled on. These issues are best left to a tribunal judge to deal with.”