UK - Court of Appeal, 24 June 2009, QD & AH (Iraq) v Secretary of State for the Home Department with the United Nations High Commissioner for Refugees Intervening [2009] EWCA Civ 620
| Country of Decision: | United Kingdom |
| Country of applicant: | Iraq |
| Court name: | Court of Appeal, |
| Date of decision: | 24-06-2009 |
Keywords:
| Keywords |
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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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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “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.” |
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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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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that 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, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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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:
In this case the Court of Appeal considered the interpretation of Art 15 (c) of the Qualification Directive applying the decision of the CJEU in Elgafaji (C-465/07; 17 February, 2009).
Facts:
Both male applicants had failed to show that they were refugees but had argued that the levels of violence in their home areas was so serious that they qualified for protection under Art 15 (c). The Tribunal had relied on International Humanitarian Law (IHL) to interpret Art 15(c) and to evaluate the facts of the claims and had dismissed their appeals.
Decision & reasoning:
The Court began by addressing previous UK Tribunals’ reliance on International Humanitarian Law (IHL) to inform the interpretation of Art 15 (c). The Court found that this had been an error; the Directive had to be considered as autonomous. The error of importing IHL had led the Tribunals to construe “indiscriminate violence” and “life or person” too narrowly and “individual” too broadly, and to set the threshold of risk too high.”
The problem of real risk remained to be dealt with pragmatically. The apparent contradiction between an “individual threat” from “indiscriminate violence” had been addressed in Elgafaji from which the Court quoted extensively. There was no additional legal test of exceptionality and the formulation in Elgafaji while legally clear left a large range for factual judgements.
On the construction of “a risk of a… threat” Elgafaji was less helpful and the Court was disinclined to be prescriptive but did approve a formulation that an applicant for Art 15(c) purposes would have to show that incidents of indiscriminate violence “were happening on a wide scale and in such a way as to be of sufficient severity to pose a real risk of serious harm… to civilians generally.”
“ Civilian” should be restricted to genuine non-combatants. UNHCR submitted that former combatants should not be excluded but the point remains unresolved.
Applying the law the Court found that both applicants succeeded in principle and the appeals were remitted to the Tribunal for fresh decisions.
Outcome:
The Appeals were allowed.
Subsequent proceedings:
The issue was revisited by the Upper Tribunal in HM and others (Article 15 (c) (Iraq) CG [2010] UKUT 331 (IAC) and HM (Iraq) & Anor v Secretary of State for the Home Department [2011] EWCA Civ 1536 (13 December 2011) (see separate summary on EDAL).
Observations/comments:
The judgment appends the submissions of UNHCR. When the successor case HM & Others (Article 15 (c) ) Iraq CG [2010] UKUT 331 (IAC) was heard by the Tribunal UNHCR was joined as a party and made submissions. However in HM (Iraq) and RM (Iraq) v Secetary of State for the Home Department [2011] EWCA Civ 1536 the Court of Appeal found an error of law and remitted the appeals to the Tribunal. There has yet to be a definitive application of the law to the situation in Iraq (as of the 6th February 2012).
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| UK - AA (Zimbabwe) v Secretary of State for the Home Department [2007] EWCA Civ 149 |
| UK - KH (Iraq) CG [2008] UKIAT 00023 |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |