AAH (Anonymity Direction Made) v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Bruce,Upper Tribunal,On,UPPER TRIBUNAL JUDGE BRUCE |
| Judgment Date | 28 February 2018 |
| Neutral Citation | [2018] UKUT 212 (IAC) |
| Date | 28 February 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2018] UKUT 00212 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE O'Connor
UPPER TRIBUNAL JUDGE Bruce
For the Appellant: Mr D. Bazini, Mr M. Bradshaw, Counsel instructed by Hasan Solicitors
For the Respondent: Mr S. Singh QC, Counsel instructed by the Government Legal Department
AAH (Iraqi Kurds — internal relocation) Iraq CG
Section C of Country Guidance annexed to the Court of Appeal's decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440 ; [2017] EWCA Civ 944is supplemented with the following guidance:
1. Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:
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i) Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in ‘tracing back’ to the family record and are confiscated upon arrival at Baghdad;
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ii) The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?
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iii) Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father's side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual's mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all.
Section E of Country Guidance annexed to the Court of Appeal's decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440 ; [2017] EWCA Civ 944is replaced with the following guidance:
2. There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad.
3. For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi passport, the journey from Baghdad to the IKR, whether by air or land, is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.
4. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport.
5. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or valid passport. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor a valid passport there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P's identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P's identity documents but may also be achieved by calling upon “connections” higher up in the chain of command.
6. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted toenter and reside in the IKR with no further legal impediments or requirements. There is no sponsorship requirement for Kurds.
7. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL territory.
8. If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a ‘relatively normal life’, which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P's family on a case by case basis.
9. For those without the assistance of family in the IKR the accommodation options are limited:
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(i) Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members;
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(ii) If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month;
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(iii) P could resort to a ‘critical shelter arrangement’, living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;
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(iv) In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.
10. Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:
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(i) Gender. Lone women are very unlikely to be able to secure legitimate employment;
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(ii) The unemployment rate for Iraqi IDPs living in the IKR is 70%;
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(iii) P cannot work without a CSID;
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(iv) Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;
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(v) Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;
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(vi) If P is from an area with a marked association with ISIL, that may deter prospective employers.
| Introduction | 1–6 | |
| The Evidence | Introduction | 7–9 |
| Background and current security situation | 10–17 | |
| Documentation and registration | 18–34 | |
| Getting to the IKR | 35–40 | |
| Getting into the IKR | 41–44 | |
| Legal requirements for staying in the IKR | 45–46 | |
| Living in the IKR | 47–71 | |
| Legal Framework | Article 8 of the Qualification Directive | 72–74 |
| The Respondent's submissions | 75–77 | |
| The Appellant's submissions | 78 | |
| The Correct Approach | 79–90 | |
| Discussion and Findings | Dr Fatah's evidence | 91 |
| The existing Country Guidance | 92 | |
| The Respondent's concession | 93–99 | |
| Documentation and registration | 100–107 | |
| Getting to the IKR | 108–116 | |
| Getting into the IKR | 117–120 | |
| Legal requirements for staying in the IKR | 121 | |
| Living in the IKR | 122–132 | |
| Country Guidance | Current security situation | 133–134 |
| Country Guidance | 135 | |
| Decision in the appeal of AAH | 136–149 | |
| Error of Law Decision | Appendix A | |
| List of Materials | Appendix B | |
| Court of Appeal guidance in AA (Iraq) [2017] EWCA Civ 944 | Appendix C |
Asayish Kurdish security services
CSID Civil Status Identity Document
GoI Government of Iraq
Al-Hashd al-Shaabi Shi'a militia under control of GoI
IDP Internally Displaced Person
IKR Iraqi Kurdish Region
INC Iraqi Nationality Certificate
IOM International Organisation for Migration
ISF Iraqi Security Forces
ISIL Islamic State of Iraq and the Levant
KRG Kurdish Regional Government
MoMD Ministry of Migration and Displacement
MoI Ministry of Interior
Mukhtar Local official
PARCS Protection, Assistance and Reintegration Centres
PDS Public Distribution System
Peshmerga Kurdish military units under control of respective political parties in the IKR, but not under central command of the KRG
UXO Unexploded ordinance
VRS Voluntary Returns Scheme
Having had regard to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and the Presidential Guidance Note No 1 of 2013: Anonymity Orders, we consider it appropriate to make an order in the following terms:
“Unless and until...
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