HM and Others (Article 15(c)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeMr Justice Collins,Storey,Allen
Judgment Date12 Oct 2012
Neutral Citation[2012] UKUT 409 (IAC)

[2012] UKUT 409 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Collins

Upper Tribunal Judge Storey

Upper Tribunal Judge Allen

Between
HM
RM
HF
Appellants
and
The Secretary of State for the Home Department
Respondent

For the Appellants: Mr M Fordham QC, Ms S Naik and Ms B Poyner, instructed by Sutovic & Hartigan in respect of the first two appellants and Mr M Fordham QC and Mr T Hussain, instructed by Parker Rhodes Hickmott Solicitors in the case of the third appellant

For the Respondent: Mr C Staker and Mr D Blundell, instructed by the Treasury Solicitor

HM and others (Article 15(c)) Iraq CG

A. Law

a) The guidance as to the law relating to Article 15(c) of the Refugee Qualification Directive 2004/83/EC given by the Tribunal in HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) (“HM1”) at [62]-[78] is reaffirmed. Of particular importance is the observation in HM1 that decision-makers ensure that following Elgafaji, Case C-465/07; [2009] EUECJ and QD (Iraq) [2009] EWCA Civ 620, in situations of armed conflict in which civilians are affected by the fighting, the approach to assessment of the level of risk of indiscriminate violence must be an inclusive one, subject only to the need for there to be a sufficient causal nexus between the violence and the conflict.

b) Given that country guidance cases may have an impact on a large number of asylum cases and appeals, their significance in saving costs in future cases, quite apart from their general importance, should require consideration of the grant of legal aid for representation in the public interest.

c) Whilst the Upper Tribunal will do all it can to ensure representation in a country guidance case, it cannot be excluded that in highly unusual circumstances such a case would proceed without claimant representation.

d) Though very considerable weight is almost always to be attached to UNHCR guidelines on risk categories in particular countries, it is not accepted that departure from the guidelines should only take place for a cogent and identified reason. Cases are to be decided on the basis of all the evidence and arguments presented to the Tribunal.

B. Country guidances

i. Whilst the focus of the present decision is the current situation in Iraq, nothing in the further evidence now available indicates that the conclusions that the Tribunal in HM1 reached about country conditions in Iraq were wrong.

ii. As regards the current situation, the evidence does not establish that the degree of indiscriminate violence characterising the current armed conflict taking place in the five central governorates in Iraq, namely Baghdad, Diyala, Tameen (Kirkuk), Ninewah, 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.

iii. Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) for civilians who are Sunni or Shi'a or Kurds or have former Ba'ath Party connections: these characteristics do not in themselves amount to “enhanced risk categories” under Article 15(c)'s “sliding scale” (see [39] of Elgafaji).

iv. Further evidence that has become available since the Tribunal heard MK (documents - relocation) Iraq CG [2012] UKUT 126 (IAC) does not warrant any departure from its conclusions on internal relocation alternatives in the KRG or in central or southern Iraq save that the evidence is now sufficient to establish the existence of a Central Archive maintained by the Iraqi authorities retaining civil identity records on microfiche, which provides a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq.

v. Regarding the issue of whether there would be a risk of treatment contrary to Article 3 ECHR arising from returns from the UK to Baghdad International Airport (BIAP):

a. If a national of Iraq who has failed to establish that conditions inside Iraq are unsafe is compulsorily returned to Baghdad International Airport (BIAP) on either a current or expired Iraqi passport, there is no real risk of detention in the course of BIAP procedures (except possibly in respect of those who are the subject of a judicial order or arrest warrant). Nor is there such a risk if such a person chooses to make a voluntary return with a laissez passer document which can be issued by the Iraqi embassy in the UK.

b. If, however, such a person is compulsorily returned to BIAP without either a current or expired Iraqi passport, he may be at risk of detention in the course of BIAP procedures and it cannot be excluded that the detention conditions might give rise to a real risk of treatment contrary to Article 3 ECHR. Such a risk is however, purely academic in the UK context because under the current UK returns policy there will be no compulsory return of persons lacking such documents.

TABLE OF CONTENTS

INTRODUCTION 6

HM1

HM2

Country guidance cases and representation

Inquisitorial role

The CG issues

Geographical application

UNHCR materials

Presentation of evidence

LEGAL FRAMEWORK 15

The law relating to Article 15(c)

THE APPELLANTS 19

HM and RM

HF

PROCEDURAL HISTORY 21

UNHCHR ELIGIBILITY GUIDELINES ON IRAQ AND OTHER KEY MATERIALS

UNHCR Eligibility Guidelines on Iraq 21

2009

2012

UKBA Iraq Operational Guidance Note (OGN)

Tribunal CG and related case law

Position in Europe

ECtHR cases

THE EVIDENCE 32

Expert evidence

Dr George:

written report oral evidence

Dr Fatah:

written report oral evidence

BACKGROUND EVIDENCE 37

Statistics on violence

The inclusive approach

Iraq as a whole 39

Parties to the conflict

State and coalition actors

Insurgents

Level and intensity of violence

Targeted violence

Civilian casualties

Targeting of civilians

Combatant casualties

Sunnis and Shi'as

Kurds

Former Ba'athists

Comparison with other conflicts

Population displacement

State weakness and protection issues

Socio-economic conditions

International assistance

Returns packages

Returns to Baghdad International Airport (BIAP)

Returns and documentation

Documentation and access to services

Internal travel

Returnees from the west

Provincial level 55

Tameen Governorate and Kirkuk

Baghdad Governorate and Baghdad

Diyala Governorate

Ninewah Governorate and Mosul

Salah al Din Governorate

Al Anbar Governorate

Levels of violence in the five central governorates-overall picture 63

KRG

SUBMISSIONS 64

The appellants' case

The respondent's case

Submissions on internal relocation

OUR ASSESSMENT 75

Confinement to Article 15(c)

The expert evidence

Initial observations

Comparison with other conflicts

The inclusive approach

The inclusive approach: other metrics

The UNHCR Guidelines

Patterns of violence and trends

The situation province-by-province

Enhanced risk categories

Sunni/Shi'a

Kurds

Former Ba'athists

State protection

Socio-economic conditions

Returnees from the west

Position in Europe

Documents relating to returns

Risk on return at BIAP

Returns to Erbil

Safety of internal travel

Documentation and access to services

The future situation

Internal relocation

MK and internal relocation within the KRG

Relocation to central and southern Iraq

CONCLUSIONS: GENERAL 101

THE APPELLANTS' CASES 103

HM and RM

HF

APPENDIX 105

GLOSSARY 146

DETERMINATION AND REASONS
1

All three members of the tribunal hearing these appeals have contributed to this determination. At the end there is a glossary of terms so as to help readers follow the various acronyms.

2

This is a country guidance (CG) case which is concerned to decide whether Article 15(c) of Council Directive 2004/83/EC (the Qualification Directive 1) prevents removal of Iraqi nationals who have no particular reason to be at real risk of persecution within the meaning of the Refugee Convention or of treatment which requires them to be accorded humanitarian protection under Article 15(a) or 15(b) of the same directive. The three appellants are young men whose accounts, which sought to establish that they would be at risk on return, were rejected. In each case, the immigration judge who heard their appeals did not believe their account. In the case of HM and RM, whose appeals were heard together, the judge found their accounts to be ‘deeply implausible’. In HF's case, the judge decided that his account was not credible. In the result, each appellant is to be regarded as a young man who has no distinguishing characteristics other than (1) his place of residence in Iraq; (2) in the case of HM and RM, his Kurdish ethnic origin; and (3) in the case of HF, his identity as a Sunni Muslim Arab and possible indirect links with the Ba'ath Party.

3

The appeals of RM and HM were heard by an immigration judge in June 2008. The appeal of HF was heard by an immigration judge in June 2009. It will be necessary to refer to the procedural history to explain the unfortunate delay in dealing with these appeals. That delay is even more unfortunate since there has been a difference of view among EU Member States on whether return to Iraq or certain parts of Iraq is possible and certain aspects of this question are pending before the European Court of Human Rights (ECtHR) in the case of YA v UK (see below [80]) who have said they will postpone a decision until they have seen our determination. The result of the delay has been to create legal uncertainty as to the proper disposal of a very significant number...

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