Please take below to solicitors of any detained Iraqi's, it may be of help.
HH Iraq IA/08213/2006; 12 June 2008
Decisions to deport or to make administrative removal directions regarding Iraqis during the period in which it might be said that the country was an "active war zone" are not in accordance with the law and must be remade
[Instructions in this case were provided by Julian Bild of the Immigration Advisory Service]
NCADC are not the authors of this briefing any queries you may have must be made to the Immigration Advisory Service
Contact the Immigration Advisory Service to see if the judgement HH Iraq (IA/08213/2006; 12 June 2008; Mr Ockelton, Professor Grubb, Dr Storey) may be of help is staying the removal of those presently detained Iraqi's facing removal
"Active War Zone"
1. The Home Office policy which prevented enforcement action regarding "active war zones" was found, until its withdrawal on 14 January 2008 (when the Secretary of State cancelled it, in one of that Office's less fine moments, in a desperate attempt to diminish its impact in the Iraqi test case litigation) in the Operational Enforcement Manual addressing enforcement action regarding decisions to deport, in Chapter 12, at para 12.3; it also appeared at para 10.4 of the Chapter on Administrative Removal.
2. The policy stated that "enforcement action should not be taken against nationals who originate from countries which are currently active war zones. Country Information Policy Unit (CIPU) or Enforcement Policy Unit (EPU) will provide advice on this." It was not a policy that resulted in the grant of leave to remain: it was one which demanded the suspension of removal. And it did not only prevent removal: it prevented the commencement of removal action.
3. As is well known, where the Secretary of State has declared a policy in relation to a category into which the Claimant falls, a decision that on its face fails to apply the policy may found a successful appeal on the ground that the decision "was not in accordance with the law". The Tribunal found in AG and others (Policies; executive discretions; Tribunal's powers) Kosovo [2007] UKAIT 00082 (07 August 2007) that this looked backwards to the date of decision: so the withdrawal of the policy in January 2008 does nothing to legalise decisions that were already unlawful for a failure to take the policy into account.
4. In a case that will probably be known as HH Iraq (IA/08213/2006; 12 June 2008; Mr Ockelton, Professor Grubb, Dr Storey) the Tribunal that determined KH Iraq have now issued their determination on HH (which was joined to KH). They find that the failure to take the policy into account made the decision to deport unlawful. They note their ruling "may affect a substantial number of other cases" (para 26).
5. So what? The policy has been withdrawn. So in future the Tribunal cannot, unfortunately, rule upon whether a country is presently an "Active war zone" and then give a direction that there should be no removal pending cessation of hostilities.
6. The policy was in place from before the Human Rights Act came into force (ie prior to 2 October 2000) until 14 January 2008 (these dates are clear from the letter withdrawing the policy). These are some of the possible consequences for some asylum seekers.
(a) Decisions to deport or to make administrative removal directions regarding Iraqis during the period in which it might be said that the country was an "active war zone" are not in accordance with the law and must be remade (para 26 HH), generating further rights of appeal.
(b) Decisions to deport or to make administrative removal directions regarding nationals of countries which it might be said were at the relevant time "active war zones" from at least 2 October 2000 until 14 January 2008 are not in accordance with the law and must be remade, generating further rights of appeal (for overstayers whose existing decision pre-dates 1 October 2004 this would bring the "full" right of appeal recognised by the Tribunal in EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062 (12 July 2007)).
(c) The failure to disclose the policy may make many historic detentions unlawful as the inability to commence enforcement action might well mean that there was no real expectation of removal and hence detention was not a legitimate exercise of power.
(d) The fact that the policy existed at all, combined with the conspicuous unfairness of failing to reveal it, surely improves the backdrop regarding the establishment of private and family life for nationals of war zone countries. Absent the policy it would be argued that they established that life in the face of the prospect of removal. However when that private and family life is assessed on the basis of an entitlement to stay in order to avoid removal to a war zone, the balance surely moves in favour of the immigrant.
(e) In submissions that do not seem to have been quite comprehended by the Tribunal in HH the Appellant argued that the conspicuous unfairness and maladministration shown by the endemic official ignorance of the policy was such that the most appropriate course of action now, in the light of the failure to apply the policy in the Appellant's favour during its actual currency, would be to confer its benefit upon him now notwithstanding its withdrawal: to make good the long period where he faced an illegitimate threat of return to an active war zone, when there was a policy not to make such returns, by holding that the Appellant should now not be removed until the country in question is no longer an active war zone. Public law increasingly recognises that the historic fact of a (broken) promise is something to be taken into account in future decision making.
7. The Tribunal have not found it necessary to rule upon the definition of "active war zone" - in the light of the Secretary of State's concession for the purposes of article 15(c) of the Refugee Qualification Directive that Iraq was in a state of "internal armed conflict" they consider that it would have to be conceded to be an "active war zone" (para 15).
8. There is much more to be said regarding how one might argue that a territory was an "active war zone" and what the most convenient sources of evidence would be (a dictionary definition might suffice for the former, UN Security Council Resolutions would be a strong candidate for the latter), and whether the policy would apply to the whole territory or just to returns to a dangerous part of it, but all that is beyond the scope of this brief note.
9. Instructions in this case were provided by Julian Bild of the Immigration Advisory Service: their Tribunal and Research and Information Teams have done a great deal of work on issues surrounding the armed conflict in Iraq, alongside the Solicitors and Legal Officers amongst others at the Refugee Legal Centre.
