UK - A.A v. The Secretary of State for the Home Department, [2015] UKUT 00544
| Country of Decision: | United Kingdom |
| Court name: | Upper Tribunal (Immigration and Asylum Chamber) |
| Date of decision: | 30-09-2015 |
| Citation: | AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) |
Keywords:
| Keywords |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Indiscriminate violence
Description
Violence in situations of international or internal armed conflict which presents a serious and individual threat to a civilian's life or person for the purposes of determining the risk of serious harm in the context of qualification for subsidiary protection status under QD Art. 15(c). |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Internal armed conflict
Description
“A conflict in which government forces are fighting with armed insurgents, or armed groups are fighting amongst themselves.” |
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Individual threat
Description
An individual threat to a civilian's life or person must be proven in order to establish the serious harm required before an applicant will be eligible for subsidiary protection status on the grounds set out in QD Art. 15(c). “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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.
Relevant International and European Legislation:
Cited Cases:
Other sources:
Along with numerous press releases and updates from mainstream news outlets, NGOs and international institutions referred to in the Annex of the judgment, the following reports were cited by the Upper Tribunal:
Human Rights Watch World Report 2015 – Iraq
Freedom House Freedom in the World 2015 Iraq
Report on the protection of Civilians in the Armed conflict in Iraq: 11 September – 10 December 2014
Amnesty International Amnesty International Report 2014/15 – Iraq
International Committee of the Red Cross (ICRC) ICRC Annual Report 2014 – Iraq
Institute for the Study of War Iraq Situation Report