UK - Upper Tribunal, HM and others (Article 15(c)) Iraq CG, [2012] UKUT 409 (IAC)
| Country of Decision: | United Kingdom |
| Country of applicant: | Iraq |
| Court name: | Upper Tribunal (Asylum and Immigration Chamber), |
| Date of decision: | 12-11-2012 |
| Citation: | [2012] UKUT 409 (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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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.” |
Headnote:
This case concerns whether there is an armed conflict in Iraq which meets the threshold of indiscriminate violence set out in Article 15(c) Qualification Directive, such that all applicants from Iraq require subsidiary protection.
Facts:
The three applicants are young men who were refused asylum on credibility grounds. Two were of Kurdish ethnic origin and one was a Sunni Muslim Arab with possible indirect links with the Ba’ath Party. Their cases were selected to be a “Country Guidance” case (i.e. one whose decision other Tribunals at the same level must follow). The question for determination was whether conditions in Iraq meet the Article 15(c) threshold, so as to prevent any forcible removal of individuals to Iraq by the UK government.
Decision & reasoning:
An “inclusive approach” is required when assessing the level of indiscriminate violence for the purposes of making an assessment as to whether subsidiary protection is required under Article 15(c): i.e. all violence occurring in the country should be taken into account, not just indiscriminate violence. It is necessary to take account of the impact of threats of violence as well as the physical violence itself. And in cases where the armed conflict has been on-going for some time (in the case of Iraq, 15 years) assessment must take into account its long-term cumulative effects, not just annualised figures of casualties.
The evidence does not establish that the degree of indiscriminate violence taking place in the five central governorates in Iraq (Baghdad, Diyala, Tameen (Kirkuk), Ninewah and Salah Al-Din) is at such a high level that substantial grounds have been shown for believing that any civilian returned there would solely on account of his presence there face a real risk of being subject to that threat.
Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) for civilians who have the characteristics of being Sunni or Shi’a or Kurdish or of having former Ba’ath Party connections. These characteristics do not in themselves amount to “enhanced risk categories” under Article 15(c)’s “sliding scale” (described in the CJEU case of Elgafaji); however they may, with other risk factors, cumulatively mean that an individual is at risk under Article 15 (b) or (c) (para. 287).
Iraqis returned to Bagdad without a passport may be at risk of detention in conditions breaching Article 3 ECHR; UK policy at present does not permit such returns.
Outcome:
Appeals dismissed
Subsequent proceedings:
The Upper Tribunal’s determination was upheld by the Court of Appeal: HF (Iraq) v Secretary of State for the Home Department [2013] EWCA Civ 1276 (23 October 2013)
Observations/comments:
This is the second time the Upper Tribunal has considered this question – in the first case, HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC), the same conclusion was reached, however that case was overturned for procedural unfairness in the Court of Appeal (HM (Iraq) [2011] EWCA Civ 1536). The instant case is a rehearing of the matter.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| 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 |
| UK - Upper Tribunal, 28 November 2011, AMM and others v Secretary of state for the Home Department [2011] UKUT 00445 |
| UK - Ariaya v Secretary of State for the Home Department [2006] EWCA Civ 48 |
| UK - HM and Others (Iraq) v. Secretary of State for the Home Department, CG [2010] UKUT 331 (IAC) |
| CJEU - C-465/07 Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie |
| ECtHR - NA v UK, Application No. 25904/07 |
| UK - Upper Tribunal (Asylum and Immigration Chamber), MK(documents - relocation) Iraq CG [2012] UKUT 126 (IAC) |
| ECtHR - Babar Ahmad and Others v. the United Kingdom, Application Nos. 24027/07, 11949/08 and 36742/08 |
| UK - SR (Iraqi/Arab Christian: relocation to KRG) Iraq CG, [2009] UKAIT 00038 |
| UK - SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012) |
| UK - KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 46 |
| UK - EM (Eritrea) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 1336 |
| UK - Mhute v SSHD [2003] EWCA Civ 1029 |
| UK - R (Golfa) v SSHD [2005] EWHC 2282 (Admin) |
| ECtHR - F.H. v. Sweden, Application no. 32621/06 |
| ECtHR - Al Hamdani v Bosnia and Herzogovina , Application no. 31098/10 |
Other sources:
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers From Iraq (31 May 2012)
UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum Seekers” (April 2009)
UKBA Iraq Operational Guidance Note (OGN) of December 2011