UK - A.A v. The Secretary of State for the Home Department, [2015] UKUT 00544

Country of Decision:
Country of Applicant:
Date of Decision:
30-09-2015
Citation:
AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
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Headnote: 

The degree of indiscriminate violence in certain parts of Iraq was such as to expose persons to a real risk of serious harm within the meaning of Article 15(c) of the Qualification Directive merely due to their presence there.

However, other areas of the country (including Baghdad City) did not meet this threshold, and as such, Iraqi nationals could be forcibly returned to these areas as it would not generally be unreasonable or unduly harsh for them to internally relocate there. 

Facts: 

The applicant is a national of Iraq of Kurdish ethnicity from the governorate of Kirkuk, who claimed asylum in the UK in 2009, aged 17.

His asylum application was refused by the Home Office, and his appeal was dismissed. He appealed to the Court of Appeal, which remitted the matter to the Upper Tribunal to reconsider it, on the issue of whether article 15c) of the Qualification Directive prevents the removal of Iraqi nationals to Iraq on the basis that they are entitled to subsidiary protection.

The case was identified to give country guidance (an authoritative finding on the issue identified in the judgment which is binding on other Tribunals which consider the same matters) on Iraq in light of a change in circumstances in that country since the previous guidance in HM and Others heard in October 2012. 

Decision & Reasoning: 

The Upper Tribunal gave detailed consideration to a large amount of evidence relating to the current country situation in Iraq. This included expert evidence, Home Office country information and guidance, a report from Amnesty International specifically written for this case, UNHCR’s position paper and reports from international organisations.

It found that the situation for ordinary civilians in the contested areas (the governorates of Anbar, Diyala, Kurkuk, Ninewah and Salah Al-din) where there was conflict between the Iraqi government and ISIL forces, as well as parts of the ‘Baghdad belts’ bordering these areas met the Article 15c) threshold. The threshold was not met with regard to the governorates of Babil, the Iraqi Kurdish Region (IKR) and the Southern Governorates.

With regard to Baghdad City, the Tribunal considered that on the evidence and in the context of the size of its population, the level of civilian deaths and injuries was not indicative of indiscriminate violence to engage Article 15c). The large movement of displaced people from the contested areas to Baghdad indicated that there was less violence there, and the circumstances of daily life were very different in Baghdad than in the contested areas.

Turning to the issue of internal relocation, the Tribunal noted that as per Home Office policy, Iraqi nationals would only be forcibly returned to Baghdad or the IKR, and only to the latter where the person originated from the IKR and had been pre-cleared for return by the authorities. It found that it would be in general reasonable and not unduly harsh to expect a person to relocate to Baghdad if there was an article 15c) risk in their home area. There was an exception to this for a national who would be unable to replace their Civil Status ID Card (CSID)or Nationality Certificate (which is necessary to access a range of services) who would be likely to face significant difficulties in accessing services and a livelihood and would therefore face destitution that would meet the threshold of Article 3. In this situation, return would not be feasible.

Individual factors relevant to the assessment of whether it would be unreasonable or unduly harsh included whether the person concerned could speak Arabic, had family of friends able to provide accommodation, was a female or from a minority community.

Internal relocation to the IKR was also possible for Iraqi Kurds, depending on the facts, but would be unreasonable for non-Kurds. In terms of assessing whether a Kurd returned to Baghdad could be reasonably expected to avoid any potential undue harshness in that city by travelling to the IKR, the Upper Tribunal ruled that this will be fact sensitive; and is likely to involve an assessment of the practicality of travel from Baghdad to the IKR, the likelihood of securing employment in the IKR; and the availability of assistance from family and friends in the IKR.

Considering the appellant’s situation, he originated from Kirkuk so would face an article 15c) risk on return there. However his return was not currently feasible as he did not have the necessary documentation to replace his CSID. As such the Tribunal found it unnecessary to hypothesise on the risk he would face on his return to Iraq. It remitted the case to the first-tier tribunal for it to make findings of fact on whether he would be entitled to humanitarian protection based on his individual circumstances, such as his ability to speak Arabic and the whereabouts of his family. 

Outcome: 

The Upper Tribunal provided Country Guidance on: the level of indiscriminate violence in Iraq with regard to Article 15(c) of the Qualification Directive; documentation and the feasibility of return; the position on documentation where return is feasible; internal relocation within Iraq; and the Iraqi Kurdish Region which replaces all previous country guidance decisions on these matters.

The most significant findings were that return of an Iraqi national to the ‘contested areas’ and the ‘Baghdad Belts’, but not Baghdad City, would be contrary to Article 15(c); and that internal relocation to Baghdad City would generally not be unreasonable or unduly harsh. 

Observations/Comments: 

The Tribunal noted that its conclusions were contrary to those of UNHCR and Amnesty International who considered that States should not deny Iraqi nationals international protection on the basis of internal flight alternative. However it considered that these reports referred to internal flight alternative risks in a generalised way without specific details on particular governorates of Iraq, which was available in the other evidence before it.

It reiterated that decision makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection in order to ascertain whether these would put that person at real risk of Article 15(c) harm, in accordance with Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620

It is important to note that the UK is only bound by Directive 2004/83/EC and thus the interpretation of key concepts such as internal protection will solely relate to the 2004 Directive and not the recast Directive.

Case Law Cited: 

UK - SA (Syria) & Anor v SSHD [2007] EWCA Civ 1390

UK - AH (Sudan) & others (FC) [2007] UKHL 49

UK - MK (documents – relocation) Iraq CG [2012] UKUT 00126

UK - AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163

UK - HM and Others (Article 15(c)) Iraq CG [2010] UKUT 00331 (IAC)

UK - HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276

UK - MOJ & Ors (return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC)

UK - HM and others (Article 15(c)) Iraq CG, [2012] UKUT 00409 (IAC)