Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 63
P965/13	OPINION OF LORD DOHERTY in the Petition of H M R (AP) Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department dated 10 July 2013 ________________

Petitioner: Caskie; Drummond Miller LLP

Respondent: McIlvride; Office of the Advocate General

3 April 2014

Introduction

[1] The petitioner seeks judicial review of a decision of the Secretary of State for the Home Department dated 10 July 2013 in terms of which she decided that the petitioner's representations of June 2013, taken together with his previous representations, did not give rise to a fresh claim. The matter came before me for a first hearing.

[2] The petitioner is national of Iraq. He claimed asylum in the UK on 17 October 2007. His claim was refused by the Secretary of State. The petitioner's appeal from that decision was refused by an Immigration Judge on 4 June 2008. The Immigration Judge did not find the petitioner's account to be credible. The petitioner applied for leave to appeal against that decision and his application was refused on 24 July 2008. He has been appeal rights exhausted since 23 October 2008. Between that date and 25 April 2013 the petitioner made further submissions in terms of rule 353 on five occasions and on each occasion it was determined that his further submissions did not give rise to a fresh claim for asylum. In October 2012 the petitioner presented a petition for judicial review of the decision of the Secretary of State of 4 April 2012 that his further submissions of 21 March 2012 did not give rise to a fresh claim for asylum. The petition was dismissed on 31 July 2012.

[3] In June 2013 the petitioner submitted further representations the thrust of which was that the petitioner would not be able to obtain a travel document whilst outside Iraq. A report dated 6 June 2013 prepared by Dr Rebwar Fatah was submitted with a letter dated 26 June 2013. The letter stated:

"[I]n the interim representations ... [w]e also highlighted that the expert report would be significant in light of our client's rights under Article 8 ECHR.

We now attach the report from Dr Fatah which outlines all the obstacles facing a failed asylum seeker without any form of Iraqi identification, in obtaining a relevant travel document. The report concludes that Mr R would not be able to obtain travel documents or identification documents from an Iraqi Embassy outside Iraq. In light of the enclosed report, we would be grateful if you would consider granting our client leave to remain in the United Kingdom."

Dr Fatah's report

[4] Dr Fatah is a Middle East specialist. Sections 4 and 5 of his report were in the following terms:

"4. Issues of the report

26. I have been instructed to address and give my opinion on the following issues:

i. What documentation is required from Iraqi nationals in the UK for an Iraqi passport and/or laissez-passer document to be issued?

ii. the procedure for, timescales of, and difficulties in obtaining the above; and

iii. the likelihood that Mr R could obtain such a travel document given that there is no-one in Iraq to assist him in collating the requisite copy documents.

5. Obtaining a laissez-passer document

27. This section outlines the steps that must be taken to acquire a laissez-passer document, the documents required to do so, and the procedure to follow...

28. In order to be able to obtain a laissez-passer document, a person will need to fall into one of the following categories:

i. When a "citizen" loses his passport and is willing to return to Iraq

ii. When a citizen's passport is withdrawn and [he] wants to return to Iraq

iii. When a person is being deported to Iraq.

5.1 Required documents

29. In order to apply for a laissez-passer document, the applicant must have the following documents

In his/her possession:

i. Iraqi Civil Staus ID (ICSID) card

ii. Iraqi nationality Certificate

iii. One passport-size photo.

30. According to the official at the Iraqi Embassy with whom I spoke, the applicant must be able to identify him/herself as Iraqi with a document showing the applicant's name and place of birth, which must match records in the relevant district in Iraq:

In order for a person to apply for a laissez-passer, he would need to provide his Iraqi Nationality Certificate and his Civil Status ID. This way we are able to produce a laissez-passer document.

However, if a person cannot provide any of the above it is possible for him to have them produced in Iraq provided he has a Birth Certificate or a copy [photocopy or scan] of a lost Civil Status ID or Iraqi Nationality Certificate. If he cannot provide any of the above, he must have a copy of his father's, brother's, uncle's or his unmarried sister.

In addition the person must have a legal representative [a lawyer or a proxy with power of attorney] in Iraq who would be permitted to apply for the re-issuing of these documents. It must be understood that even if the person can provide a Birth Certificate to trace his records in the General Directorate of Nationality or the Civil Status Affairs Directorate, he must have a legal representative in Iraq to follow up the process ..." (emphasis added).

[5] Section 6 of Dr Fatah's report (paragraphs 39-45) dealt with how an individual could obtain a Civil Status ID, and section 7 (paragraph 46) related to the obtaining of an Iraqi Nationality Certificate. Section 8 of the report provided:

"8. Obtaining ICSIDs and Nationality Certificates in London

47. The Iraqi Embassy is unable to issue Civil Status IDs or Iraqi Nationality Certificates in London. However, the Iraqi Embassy in London can take the above necessary documents and post them to the relevant authorities in Iraq. The Iraqi Embassy in London advised that either a lawyer in Baghdad should be hired or relatives in Baghdad should be asked to follow up on obtaining the Civil Status ID and the Iraqi Nationality Certificate after the Iraqi Embassy in London has sent the documents to the relevant authorities in Iraq ..."

[6] In section 10, paragraph 56 of the report Dr Fatah concluded:

"56. According to the objective evidence, without any form of identification (a Birth Certificate, Iraqi Civil Status ID card, or Iraqi Nationality Certificate) proving his Iraqi nationality, and without the means or support (i.e. family members to call upon) to access any documentation from inside Iraq, Mr R would not be able to obtain travel documents or identification documents from an Iraqi Embassy outside Iraq."

The Secretary of State's decision letter

[7] In her decision letter of 10 July 2013 the Secretary of State made reference to the history of the petitioner's failed asylum application, and to the adverse credibility findings which the immigration judge had made in his appeal determination of 6 May 2008. She considered whether the new material taken together with the previous representations would create a realistic prospect of success before another immigration judge. She noted (paragraph 9) her policy that factors that affect the practicality of return, such as the difficulty or otherwise of obtaining a travel document, should not be taken into account when considering the merits of an asylum or human rights claim; and that there was no policy which precluded the return to Iraq of failed asylum seekers who have no legal basis of stay in the UK. The decision letter continued:

"10. Iraqi nationals may return voluntarily to Iraq at any time in one of three ways; (a) leaving the UK by themselves, where the applicant makes their own arrangements,(b) leaving the UK through the voluntary departure procedure, arranged through the UK Border Force, or (c) leaving the UK under one of the Assisted Voluntary Return (AVR) schemes. The AVR scheme is implemented on behalf of the UK Border Agency by Refugee Action and co-funded by the European Refugee Fund. Refugee Action will provide advice and help with obtaining any travel documents and booking flights, as well as organising reintegration assistance in Iraq. The programme was established in 1999, and is open to those awaiting an asylum decision or the outcome of an appeal, as well as failed asylum seekers.

11. Your client stated in court on 06/05/2008 that he had been in contact with his wife and mother in Syria and had obtained the undated letter in support of his claim from them. Given that he has now stated in the precognition document dated 03/01/2013 that his mother and sister now live in Mosul, it is considered that he could obtain the relevant identity documents from them to enable his return to Iraq.

12. A summary of your client's position appears to be that his refusal to apply for a passport or Laissez Passer from the Iraq authorities, taken in conjunction with the Home Office's failure to enforce removals to Iraq in recent months means that your client's Article 8 rights are not (sic) disproportionately breached by the Secretary of State's failure to grant leave to remain.

13. The recent authority of Abdullah [2013] EWCA Civ 42 has been considered regarding this matter. In that case, the Court of Appeal considered the appeal of an individual whose background and history had resulted in difficulties in determining his ability to return to Saudi Arabia. [The letter then cited passages from paragraphs 19 - 22 of Sir Stanley Burnton's judgment].

14. Your client's position is not wholly analogous with the appellant in Abdullah; his ability, or more pertinently his willingness, to avail himself of a Passport or travel document for return to Iraq is the sole factor in his being able to return safely to Iraq, rather than issues surrounding citizenship. It is understood he is not putting forth a case whereby he is anything other than an Iraqi national with a right to reside in that country. Instead, it is his continued refusal to apply for, and be issued with, a suitable travel document which currently precludes his return to that country. There are absolutely no factors known to the Home Office, or put forward within your latest representations which indicate that obtaining such a document is not entirely within his gift. That he chooses not to do so cannot be accepted as grounds for him being granted leave to remain.

15. Therefore Dr Fatah's report does not create a realistic prospect of success in front of an Immigration Judge applying the rule of anxious scrutiny."

The petitioner's submissions

[8] Mr Caskie moved the court to reduce the respondent's decision of 10 July 2013. The previous adverse credibility findings were irrelevant because the issue was whether the petitioner could obtain a travel document. Even if the proper conclusion was that the petitioner was not co-operating in obtaining such a document, that would be irrelevant if in fact he would not have obtained one anyway even if he had co-operated (cf. R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671, per Lord Dyson at para. 127). In applying the general policy described in paragraph 9 of the decision letter the Secretary of State had left out of account a relevant, or potentially relevant, consideration: that it was conceivable that there might be cases where the possibility of return being achieved was so remote that it would be wrong for an applicant for leave to remain in limbo (R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 per Lady Hale at para. 4). An immigration judge could take the view that the petitioner was in just such a position. In that connection, while the respondent had provided statistics showing that in the first six months of 2013 around 191 failed asylum seekers returned to Iraq voluntarily from the UK and around 50 had been subject to forced return, the respondent had not demonstrated that any of the 50 had obtained a travel document while in the UK. All 50 might have had travel documents already - unlike the petitioner. It was implicit in the terms of the letter of 26 June 2013 that the petitioner was claiming to be without any form of Iraqi identification. Dr Fatah's report showed that to get a travel document the petitioner would need to have, or to obtain, other documentation identifying who he was. It was clear from reading the report as a whole that in order to obtain the documentation the petitioner would have to have either a lawyer in Baghdad or relatives in Baghdad. He had no relatives in Baghdad and he had no funds with which to hire a lawyer there. An immigration judge could take the view that he would not be able to obtain a travel document; that as a result the possibility of his being able to return was so remote that he was in the category contemplated by Lady Hale; and that in those circumstances the point had been reached where it would be a disproportionate interference with his article 8 rights to family and private life for him to be refused leave to remain. It followed that the Secretary of State's refusal to accept that the further representations taken with the previous representations amounted to a fresh claim had been unreasonable and unlawful. For a summary of the correct approach in such cases reference was made to HSP (Bangladesh) v Secretary of State for the Home Department [2011] CSOH 111 at paragraphs 6-10. Hamzeh & Ors v Secretary of State for the Home Department [2013] EWHC 1276 (Admin), Abdullah v Secretary of State for the Home Department [2013] EWCA Civ 42, and HF (Iraq) v Secretary of State for the Home Department [2013] EWCA Civ 4113 were distinguishable. Here the petitioner had adduced the positive evidence contained in the expert report (cf. the position in Hamzeh). While the petitioner's claim for asylum had been rejected, it would be wrong to proceed on the basis that he had not had a good reason to "flee" Iraq given the distressing conditions there in 2007 (cf. Abdullah). HF had concerned the position in Iraq in 2013, not the position in 2007.

The respondent's submissions

[10] Mr McIlvride's motion was for the petition to be refused. It was accepted for the purposes of the proceedings that, at present, the petitioner could not be returned to Iraq without a passport or laissez-passer. He submitted that five propositions could be derived from the relevant authorities (R (Khadir) v Secretary of State for the Home Department, supra, per Lady Hale at para. 4, Lord Brown at paras 6-7; Hamzeh, supra, paras 47-52, 74-77, 96, 110-111; Abdullah, supra, per Sir Stanley Burnton at paras 4, 7, 14, 16, 19, 21-22; per Beatson LJ at paras 25, 28-29; HF (Iraq), supra, per Elias LJ at paras 102-104):

1. Article 8 ECHR did not confer a right to reside in the country of one's choice.

2. There might conceivably come a time when the prospects of return were so remote that it would be irrational not to grant leave.

3. The fact that there were practical difficulties in returning someone at a particular time did not mean that there was no possibility of removal in the future.

4. The onus was on a petitioner to prove, on the balance of probabilities, that the prospects of removal were so remote as to make it irrational to refuse to grant leave.

5. A failure to co-operate in obtaining necessary documentation was a factor to which the court could have regard in deciding whether the prospects of return had indeed become so remote.

[11] Here the petitioner was a failed asylum seeker. He had been appeal rights exhausted since October 2008. He had no right to remain in the UK. He had taken no steps at all to return voluntarily; or to attempt to obtain a travel document; or to attempt to obtain documents to enable him to obtain one. The report from Dr Fatah proceeded on a false premise - that the petitioner had no-one in Iraq who could assist him to obtain any documents he needed. In fact he did - his mother and sister. The petitioner had not put material before the respondent which demonstrated (i) that those relatives in Iraq would be unable to obtain any documents he required; (ii) that he would not be in a position to satisfy any requirements of the Iraqi authorities. The representations had not highlighted any specific respects in which the petitioner was said to have established a family or private life in the UK. They relied rather on the contention that refusing him leave to remain when the prospects of his being returned were remote was a disproportionate interference with his Article 8 rights; but it had not been demonstrated that the prospects were indeed as he claimed they were. As matters stood the respondent had been entitled to decide that there was no realistic prospect of the petitioner succeeding before an immigration judge. Her decision was not Wednesbury unreasonable (Dangol v Secretary of State for the Home Department 2011 SC 560). Nor had she erred in law in applying the policy described in paragraph 9 of the decision letter. A policy along such lines was not unlawful. It had not been suggested that the policy was in fact a rule allowing no scope for exceptions. Rather, the criticism was that it should not prevail if on the facts the scenario contemplated by Lady Hale had come to pass. The short answer to that was that it had not.

Discussion and decision

[12] In my opinion Mr Caskie's submissions fall to be rejected. I am in very substantial agreement with Mr McIlvride's submissions.

[13] The petitioner was found to be incredible in relation to his account of the circumstances in which he left Iraq. It is not appropriate to approach matters (as Mr Caskie suggested the respondent and the court should) on the basis that, notwithstanding his false account, he had a good reason to "flee".

[14] The foundation of the petitioner's case was Lady Hale's obiter dictum in Khadir, supra:

" ...There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would irrational to deny him the status which would enable him to make a proper contribution to the community here, but that is another question. It certainly did not arise on the facts of this case. "

The context of that observation was, of course, somewhat different from the present case. The claimant there had been granted temporary admission and the grant had been extended periodically. The issue was whether it had been lawful for the Secretary of State to continue to grant temporary admission. The observation was obiter because Lady Hale was very clear that even if it was conceivable that such a time might arrive, it certainly had not done so in Mr Khadir's case. Mr Khadir was an Iraqi from the Kurdish autonomous area ("KAA") of northern Iraq. He had no well-founded fear of persecution there. He had entered the country illegally in November 2000 and had immediately claimed asylum. His claim had been refused by the Secretary of State on 29 January 2001, and his appeal against refusal had been dismissed by an adjudicator on 9 August 2001. Mr Khadir had then applied for exceptional leave to enter the UK on the basis that, although he would be safe in the KAA if returned, there was not a safe way of enforcing his return there. That application was finally refused by the Secretary of State on 3 May 2002. On 29 July 2002 Crane J had quashed that decision. On 3 May 2003 the Court of Appeal had allowed the Secretary of State's appeal. At the time of the House of Lords' refusal of the claimant's appeal in June 2006 the Secretary of State had not yet been able to find a safe means of enforcing Mr Khadir's return.

[15] The considerations in the present case do appear to me to be similar to the considerations in Abdullah and Hamzeh. In Abdullah Mr Abdullah claimed to have left Saudi Arabia in 2003. He entered the UK illegally in July 2005. He claimed asylum. At that stage he claimed to be of Palestinian origin. He went to ground. He obtained a false French passport and he worked illegally. He was arrested in November 2007 and in January 2008 he was sentenced to 9 months imprisonment for using a false instrument. At interview in 2008 he claimed to be a stateless Bidoon. The Secretary of State believed that he was a national of Saudi Arabia but did not accept that he was stateless. She rejected his claim for asylum. Mr Abdullah appealed. The Immigration Judge refused his appeal on 20 January 2009. There then followed what Sir Stanley Burnton described as a proliferation of proceedings, culminating in a decision of the Upper Tribunal which dismissed the appeal (it had been advanced on asylum, humanitarian protection and human rights grounds). In paragraph 45 of its determination the Senior Immigration Judge stated:

"45. It may be that the appellant cannot in fact be returned to Saudi Arabia as he is not accepted as a national of that country. He did not arrive in this country from Saudi Arabia and there is no reason at present to believe that he would be admitted there. It must now be for the respondent to consider in the light of any further inquiries and evidence what further decisions should be made about the appellant's status in this country. Mr Jacob sought to argue that the appellant should have leave on article 8 grounds while any such inquiries are made but I am not satisfied that article 8 is engaged in these circumstances."

[16] Before the Court of Appeal the only ground of appeal was that the judge had erred in law in holding that Article 8 was not engaged. The court refused the appeal. Sir Stanley Burnton observed:

"16 ....In my judgment (with which Mummery LJ agreed) in MA (Ethiopia) v Secretary of State for the Home Department [2009] EWCA Civ 289, at paragraph 78, I said that, in contrast to the question of risk of persecution on return, inability to return is to be proved on the balance of probabilities. The Senior Immigration Judge rejected the Appellant's claim that he would be persecuted if returned to Saudi Arabia. In these circumstances it was and is for the Appellant to prove on a balance of probabilities that he is a Palestinian and for that reason unable to return to Saudi Arabia....

18 It is not surprising that the Senior Immigration Judge was unable to make a positive finding that the Appellant is of Palestinian origin, and unable to return to Saudi Arabia on that account, given the inconsistencies in his previous claims and the lack of any objective evidence supporting his present claim.

19 I reject the submission that because the Secretary of State was at the date of the decision of the Upper Tribunal unable to enforce the return of the Appellant to Saudi Arabia, article 8 required her to grant him leave to remain. Article 8 does not confer a right to reside in the country of one's choice. The Appellant chooses to seek to reside in this country, but was not compelled to come here by any threat of persecution. Mr Jacobs accepted that if the Appellant could be returned, he could have no article 8 claim to remain here. That is doubtless because there was no evidence before the Upper Tribunal that he had established any personal or family life here.

20 The Appellant's situation is of his own doing...

21 The Appellant relies on what was said obiter by Lady Hale in Khadir v Secretary of State for the Home Department [2005] UKHL 39 [2006] 1 AC 207 [2005] 3 WLR 1 , at paragraph 4:

'There may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would irrational to deny him the status which would enable him to make a proper contribution to the community here, ...'.

However, the Senior Immigration Judge expressly envisaged that there was a prospect of further enquiries being made and further evidence being obtained that would bear upon the Secretary of State's decision. Indeed, as I have already mentioned, it was only pending such enquiries that Mr Jacobs submitted in the Upper Tribunal that leave to remain should be given.

22 I would dismiss this appeal on the ground that the Immigration Judge was entitled to conclude that at the date of his decision Article 8 did not require the Secretary of State to grant the Appellant leave to remain while seeking to secure his return to Saudi Arabia. If Article 8 was engaged, there could be only one answer to the balancing exercise required by Article 8.2, namely that the Secretary of State's refusal to grant leave to remain was justified by the need to maintain a system of sensible immigration control."

Lord Justice Beatson added:

"25 I have read the judgment of Sir Stanley Burnton in draft and respectfully agree with his conclusion that this appeal must be dismissed for the reasons he gives.

26 I add two observations. The first concerns the submissions of Mr Jacobs based on the statement of Baroness Hale in Khadir's case, and Sedley and Toulson LJJ in MS and others [2009] EWCA Civ 1310 at [2], [27] and [45], on the so-called 'limbo' point. It also concerns his reliance on analogical support from the decision of Blake J in Tekle's case [2008] EWHC 3064 (Admin) that denying the right to work to applicants for asylum whose applications remain undecided for substantial periods breaches their rights under Article 8 .

27 Mr Jacobs argued that the appellant's statelessness meant that, at the time of the Upper Tribunal's decision, there was no prospect of removing him and that consequently Article 8 was engaged and entitled him to limited leave. He maintained that Article 8 gave the appellant the right to have a private life 'somewhere', which, because, as at the date of the decision there was no prospect of removing him to Saudi Arabia, had to be this country. He argued that leaving the appellant without status and consequently with limited access to healthcare, no right to work and no right to social security benefits deprived him of the ability to have a private life and left him in a sort of 'limbo.'

28 There may at some stage come a time when the 'limbo' argument becomes a live question, but I consider it simply unarguable that it had done so at the time of the Tribunal's decision in this case. Given the limited information provided by the Appellant and the inconsistencies in the accounts he has given, the Secretary of State was entitled to further time to make inquiries.

29 My second observation concerns the length of time for such inquiries before the 'limbo'" argument could conceivably come into play. I consider that, in this context, some assistance can be gained from the decisions concerning the legality of the detention of persons the Secretary of State seeks to deport while efforts are made to establish their nationality or to obtain the requisite documentation of their nationality. One of the factors which has been held to affect the period of detention which is lawful is whether the detained person has co-operated with attempts to obtain documentation: see, for example, R (MH) v SSHD [2010] EWCA Civ 1112 at [44] and [68(iii)], per Richards LJ. Similarly, the time after which the "limbo" argument can come into play may depend on the attitude of the individual concerned to efforts to establish his or her nationality or to obtain documentation."

[17] In Hamzeh all five claimants were failed asylum seekers from Iran. Each had entered the UK illegally. Each had been the subject of adverse credibility findings. Each argued, inter alia, that they were "irremovable" and in a state of limbo that constituted a disproportionate interference with their rights to family or private life under Article 8. In dismissing the applications Mrs Justice Simler DBE stated:

"The legal consequences of being "irremovable"

47 The obligation to leave the UK where a person does not have any basis for remaining here is a fundamental tenet of the immigration system.

48 Where voluntary departure does not take place, enforced removal will follow but it is necessary for the person being removed to have a valid travel document. In many cases the person being removed will use their own valid passport. In cases in which the person does not have a passport the Defendant can apply to the UK Embassy of the destination state for an emergency travel document ('ETD').

...

50 However, no general policy or practice has been identified or established by the Claimants to the effect that persons whose removal from the UK cannot be enforced, should, for this reason alone, be granted leave. It is not difficult to see why this should be the case. A policy entitling a person to leave to remain merely because no current enforced removal is possible, would undermine UK immigration law and policy, and would create perverse incentives to obstruct removal, rewarding those who fail to comply with their obligations as compared to those who ensure such compliance. Moreover, in the same way as immigration law and policy may change, so too the practical situation in relation to enforcing removal may change or fluctuate over time so that any current difficulties cannot be regarded as perpetual.

...

Issue 3: Has the Defendant's failure to remove (or to take steps to re-document etc) the Claimants led to them being in a state of limbo that constitutes a disproportionate interference with their rights to family or private life under Article 8 of the Convention?

74 Mr Turner submits that the consequence of the fact that the Claimants are un-documented Iranians and irremovable is that the failure to grant them leave will leave them in limbo, and that this amounts to a breach of their article 8 rights. In Khadir v. SSHD [2005] UKHL 39 at paragraph 4, Lady Hale observed that there may come a time when the prospects of the person ever being able safely to return, whether voluntarily or compulsorily, are so remote that it would be irrational to deny him the status that would enable him to make a proper contribution to the community in the UK. The short answer to this point is that no positive evidence has yet been adduced by the Claimants (on whom the burden must rest) to establish that voluntary departure is so remote as to be practically impossible.

76 The 'limbo' argument was considered and rejected in Abdullah v SSHD ...[most of paragraph 19 and all of paragraphs 22 and 29 of the judgments in Abdullah were reproduced].

77 Very similar considerations apply in this case. Leaving aside the factual questions concerning the Claimants' identity documentation and removability, none of them came to the UK lawfully or compelled by any threat of persecution. All have remained here despite the refusal of leave and in circumstances where there is no evidence that they have established private and family life rights that would outweigh factors in favour of removal. In these circumstances, I cannot accept that the mere fact that their removal cannot currently be enforced changes the balance so that such a decision amounts to a disproportionate interference of such rights under article 8 as they may establish. Article 8 does not confer the right to reside in the country of one's choice and there is nothing compelling any of these Claimants to remain here. The Defendant continues to hold the rational view that voluntary departure is still possible in each of these cases and accordingly, any state of limbo that they find themselves in is self- induced."

[18] In relation to each of the claimants Simler J went on to hold that in circumstances where no evidence had been provided to establish positively that he could not return to Iran on a voluntary basis it was not arguably irrational or unlawful for the Secretary of State to conclude that his removal was and remained appropriate despite a current inability to enforce removal (paras 105, 123, 137, 147, and 158). In the case of Mr Abdullah she commented (para 123) "the evidence suggests that he has a large family in Tehran, including parents, many siblings and a maternal uncle, but he has provided no explanation as to why his family cannot assist him in obtaining relevant documentation". In relation to Mr Nejad she observed (para 137) "He has stated that he left his birth certificate in Iran with his parents, but despite regular contact with his mother, he has never asked her to send him his birth certificate and has provided no explanation as to why his family in Iran could not assist him in obtaining travel documentation." In respect of Mr Jaffar she noted (para 147) "He has stated that he left his identity document in Iran and has lost contact with his family, but has provided no evidence to support these statements, or the inference that there is no contact whatsoever in Iran who can assist him." In connection with Mr Ahmadi she remarked (para 158) "he has family in Iran but has provided no evidence to show why they cannot assit him in obtaining further documentation". In the case of all of the claimants she found the article 8 claim raised to be "wholly un-particularised" and unsupported by any evidence demonstrating the establishment of family life in the UK or the extent of any private life established in the UK (paras 108, 126, 138, 149 and 160).

[19] In the present case the onus was on the petitioner to produce positive evidence demonstrating on the balance of probabilities that he could not return to Iraq. It was for him to prove that he had no travel document, and that he had none of the identification documents which would enable him to obtain one. It was for him to show that every possible avenue open to him to obtain the documents he needed would be likely to be unsuccessful.

[20] Did the petitioner discharge the onus upon him? In my opinion the answer is a resounding no. He provided no explanation of the documents he did possess. He did not specify any documents he no longer had; or explain why he no longer had them; or indicate where he last had them; or where, or with whom, he understood them now to be. Even if ought to be inferred from the letter of 26 June 2013 that the petitioner was "undocumented", that falls far short of what was required.

[21] What positive evidence did the petitioner adduce in relation to his inability to return? The case put forward rested on Dr Fatah's report: but that evidence proceeded on the false premise that the petitioner has no-one in Iraq he could call upon for assistance. He does have relatives there - his mother and sister. In those circumstances the onus was on the petitioner to explain what efforts he had made to enlist their assistance; what, if any, steps they had taken; and any other circumstances bearing upon their ability to facilitate matters. A fortiori that was so in view of the advice contained in paragraph 30 of Dr Fatah's report. None of that was done.

[22] In those circumstances the evidence did not demonstrate that the possibility of the petitioner being able to return to Iraq was extremely remote, and that he was in a "limbo" situation. His article 8 argument did not get off the ground.

[23] The submission that the decision should be reduced on the ground the respondent erred in law in applying the policy described in paragraph 9 of the letter is also without substance. It was perfectly lawful for the respondent to have such a policy. It was not suggested that the policy was in fact a rule allowing no scope for exceptions. Rather, the criticism was that the policy should not prevail because on the facts the scenario contemplated by Lady Hale had come to pass. That argument suffers the same fate as the principal argument, for the same reasons.

[24] In my opinion, on the basis of the material placed before her, and giving it anxious scrutiny, the respondent was entitled to decide as she did. She asked herself the correct question (Immigration Rule 353; WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, per Buxton LJ at paras 6-7). Her decision that there was not a realistic prospect of success before an immigration judge was not only lawful, it was manifestly right. It would have been extremely difficult for her to have reached any other conclusion.

Disposal

[25] I shall repel the petitioner's pleas-in-law, sustain the respondent's plea-in-law, and refuse the petition. I shall reserve meantime all questions of expenses.