HF (Iraq) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias :,Lord Justice Fulford:,Lord Justice Maurice Kay: |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1276 |
| Docket Number | Case Nos: C5/2013/0007/AITRF, C5/2013/0008/AITRF, C5/2013/0009/AITRF and C5/2012/3109/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2013 |
[2013] EWCA Civ 1276
Lord Justice Maurice Kay, VICE PRESIDENT OF THE COURT OF APPEAL
Lord Justice Elias
and
Lord Justice Fulford
Case Nos: C5/2013/0007/AITRF, C5/2013/0008/AITRF, C5/2013/0009/AITRF and C5/2012/3109/AITRF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ASYLUM & IMMIGRATION)
MR JUSTICE COLLINS sitting with Upper Tribunal Judge Storey and Upper Tribunal Judge Allen
HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409(IAC)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ASYLUM & IMMIGRATION)
Upper Tribunal Judge Allen sitting with Upper Tribunal Judge Kekié and Upper Tribunal Judge Coker
MK (documents-relocation) Iraq CG [2012] UKUT 00126 (IAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Michael Fordham QC and Tassadat Hussain (instructed by Parker Rhodes Hickmotts Solicitors) for the First Appellant
Mr Michael Fordham QC, Ms Sonali Naik and Ms Bryony Poyner (instructed by Sutovic & Hartigan) for the Second and Third Appellants
Mr Hugh Southey QC and Mr Tassadat Hussain (instructed by Halliday Reeves Solicitors) for the Fourth Appellant
Mr James Eadie QC and Mr Christopher Staker (instructed by The Treasury Solicitor) for the Respondent
The appeals in this case challenge the two most recent country guidance decisions relating to Iraq.
In the first case, HM and others (Article 15(c)) Iraq CG [2012] UKUT 409 (" HM2"), the principal issue before the Upper Tribunal was whether the level of indiscriminate violence in the five central governorates of Iraq (Baghdad, Diyala, Tameen (Kirkuk), Nineveh and Salah Al-Din) created such a risk of serious harm as to confer a right of humanitarian protection on the appellants pursuant to Article 15(c) of Council Directive 2004/83/EC ("the Qualification Directive"). The right to such protection would prevent the Secretary of State removing them to Iraq notwithstanding that none of the appellants had been able to establish the right to refugee status. The Tribunal also provided guidance on the risk on return at Baghdad Airport, and the availability of relocation to other parts of Iraq. It was accepted that there were some governorates which were safe and so the question arose as to whether they could provide areas of viable relocation.
In the second case, MK (documents-relocation) Iraq CG [2012] UKUT 126 (" MK"), the Upper Tribunal had to consider the question whether, even if there was a real risk of serious harm in parts of the area in Iraq controlled by the Government in Baghdad (known as "GOI"), there could be relocation to the other parts of Iraq, in particular that area controlled by the Kurdistan Regional Government (known as "KRG"). It is well established that there is a greater degree of security for persons living in the KRG than elsewhere in Iraq. This case was heard before HM2 and the guidance on relocation was taken as the starting point for the analysis in HM2 of the relocation issue.
In each of these appeals the appellants were unsuccessful before the Upper Tribunal but were given leave to appeal on certain specific grounds. The appeal in HM2 is focused principally upon the country guidance with respect to humanitarian protection, which is alleged to be flawed; although the appeal also challenges the Upper Tribunal's conclusions on the risk at Baghdad Airport on return and the possibility of relocation. In MK the appeal is mainly directed at the Upper Tribunal's guidance on relocation, which is also said to be flawed, but there are additional grounds of appeal peculiar to the particular facts of the case. I will deal with the latter aspect of the appeal at the end of this judgment.
The applicable law.
The relevant principles of law are not in dispute. The key provision is Article 15(c) of the Qualification Directive which is given effect in the United Kingdom by paragraph 339C of the Immigration Rules. Recital 24 of the Directive states that minimum standards of what is termed "subsidiary protection" must be provided and confirms that subsidiary protection confers a status which is "complementary and additional to" the refugee protection afforded by the Geneva Convention. In domestic law it is referred to in paragraph 339C as "humanitarian protection" which is the phrase I will use in this judgment. Since paragraph 339C is intended to do no more than to give effect to it and has to be construed compatibly with it, there is no purpose in focusing on the domestic rule; the relevant law is to be found in the Directive.
Articles 2(e) and (f) of the Directive are as follows:
"For the purposes of this Directive….
(e) 'person eligible for subsidiary protection' means a third country national or 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, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk unwilling to avail himself or herself of the protection of that country;
(f) 'subsidiary protection status' means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection."
Article 15 defines serious harm as follows:
"Serious harm consists of:
(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."
In practice those facing the risks identified in paragraphs (a) or (b) are likely to be entitled to claim refugee status because their treatment will be likely to engage either Articles 2 or 3 of the European Convention of Human Rights (provided that they could establish that the harm they feared was on account of one of the grounds specified in the Convention).
Article 8 of the Qualification Directive recognises that there will be cases where someone at risk in his or her home territory can reasonably be expected to avoid this by relocating to another part of the country:
"1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if 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.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin."
In Elgafaji v Staatssecretaris van Justitie [2009] ECR 1–921 the European Court of Justice resolved certain difficulties in the construction of Article 15(c). The court observed that the provision seeks to elevate the humanitarian state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy into a minimum standard. Although the protection arises only in situations of armed conflict, the indiscriminate violence need not arise directly from the armed conflict itself; it may result from the breakdown of law and order consequent upon civil strife. It is conceded that this is the position in parts of Iraq. The court held that it is not necessary for a person to be specifically targeted by reason of factors peculiar to his particular circumstances in order to claim humanitarian protection. It is enough that he will by his presence in the relevant country face a real risk of being subject to a serious threat of harm because of indiscriminate or random violence. However, where a person can show that he is at risk of being specifically targeted because of factors particular to his personal circumstances, this will lower the level of indiscriminate violence necessary to attract humanitarian protection. The Tribunal in HM2 referred to this as the "sliding scale".
The Tribunal in HM2 identified the issue it had to determine in the following way (para 43):
"The CJEU requires us to decide whether the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level as to show the existence for an ordinary citizen of a real risk of serious harm in the country or in the particular region."
The background to HM2.
The case has a complex procedural history but since much of that history is immaterial to the issues now before the court, it can be dealt with briefly.
Both HM and RM, who are brothers, came to this country and applied for asylum. They had been living in Kirkuk, which is in the Tameen Governorate of Iraq. Their applications for asylum were rejected and they appealed to the immigration judge. The judge found that they were not credible witnesses and rejected their appeals. He did not specifically deal with their claims for humanitarian protection. Accordingly, the case was remitted to consider whether, simply as two male civilians...
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