NCADC would like to thank Simon Cox of Doughty Street Chambers for this briefing.

Iraqis refused refugee status by the Home Office between 1 October 2000 and 20 March 2003 on the ground that they could relocate from Government-controlled Iraq to the Kurdish Autonomous Zone ('KAZ') in Northern Iraq are now entitled to ask the Home Office to grant indefinite leave to remain. That is because, until 21 March 2003 the Home Office had a policy of not arguing for internal flight to KAZ in such cases. This has been confirmed in the judgments of the High Court and Court of Appeal in Bakhtear Rashid v Secretary of State for the Home Department. The courts decided that it was an abuse of power for the Home Office to deny indefinite leave to remain to Mr Rashid, even if he could have relocated to KAZ or could now go to Government-controlled Iraq.

A person can benefit from this ruling if ALL of the following apply

- S/he is a national of Iraq

- Before s/he left Iraq, the person's home area was in the part of Iraq which was controlled by the Saddam regime when asylum was refused

- S/he was first refused asylum by the Home Office before 21 March 2003 (even if there was then an unsuccesful appeal or reconsideration)

- The Home Office refusal letter argued that the person could relocate to the KAA.

- S/he has not been granted indefinite leave to remain.

This argument can be used where the person's appeal was finally dismissed whether or not they raised an argument about internal flight. Mr Rashid won even though his appeal had been dismissed.

This argument may be available to people who were refused asylum but granted limited leave to remain, such as exceptional or discretionary leave.

A person who thinks they benefit from this ruling should arrange for a written request to be made to the Home Office asking for indefinite leave to remain. That request should refer to the Rashid case and explain why it applies. Where possible, that request should be made through a solicitor. The request should be made as soon as possible.

If the Home Office refuses the request or fail to deal with it within a reasonable period of time, the person concerned should ask a solicitor for advice on claiming judicial review of the Home Office.

Further details:
The High Court judgment of 22 October 2004 is at <http://www.bailii.org/ew/cases/EWHC/Admin/2004/2465.html>http://www.bailii.org/ew/cases/EWHC/Admin/2004/2465.html
The Court of Appeal judgment of 16 June 2005 is at <http://www.bailii.org/ew/cases/EWCA/Civ/2005/744.html>http://www.bailii.org/ew/cases/EWCA/Civ/2005/744.html

The Home office's policy was "a general policy that internal relocation to the former KAZ [Kurdish Autonomous Zone, sometimes described as 'Area'] from government controlled Iraq would not be advanced as a reason to refuse a claim for refugee status. This was based on the stance of the Kurdish authorities of not admitting to their territory those who were not previously resident in that area because of a lack of infrastructure and resources."

The Home Office has accepted that there were no exceptions to this policy, even for those with close relatives in the KAZ: see paragraph 23 of High Court judgment.

Simon Cox
Doughty Street Chambers
10-11 Doughty Street
London
WC1N 2PL

"Simon Cox is a barrister. Barristers can only advise individuals if asked to do so by a solicitor or similar professional. Simon Cox therefore is unable to deal directly with queries from individual asylum-seekers.'