KH (Article 15©)

JurisdictionEngland & Wales
JudgeSenior Immigration Judge Storey
Judgment Date01 February 2008
Neutral Citation[2008] UKAIT 23
CourtAsylum and Immigration Tribunal
Date01 February 2008

[2008] UKAIT 23

Asylum and Immigration Tribunal






The Secretary of State for the Home Department

For the Appellant: Mr R Husain and Ms S Knights instructed by the Refugee Legal Centre

For the Respondent: Mr P Saini QC, Mr S Wordsworth and Mr A Palmer instructed by the Treasury Solicitor

KH (Article 15(c) Qualification Directive) Iraq CG

  • (1) Key terms found in Article 15(c) of the Qualification Directive are to be given an international humanitarian law (IHL) meaning. Subject to (3) below, the approach of the Tribunal in HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 to this provision is confirmed.

  • (2) Article 15(c) does add to the scope of Article 15(a) and (b), but only in a limited way. It is limited so as to make eligible for subsidiary protection (humanitarian protection) only a subset of civilians: those who can show that as civilians they face on return a real risk of suffering certain types of serious violations of IHL caused by indiscriminate violence.

  • (3) Article 15(c) is not intended to cover threats that are by reason of all kinds of violence. It does not cover purely criminal violence or indeed any other type of non-military violence. Nor does it cover violence used by combatants which targets adversaries in a legitimate way.

  • (4) Where it is suggested that a person can qualify under Article 15(c) merely by virtue of being a civilian, the principal question that must be examined is whether the evidence as to the situation in his or her home area shows that indiscriminate violence there is of such severity as to pose a threat to life or person generally. If such evidence is lacking, then it will be necessary to identify personal characteristics or circumstances that give rise to a “serious and individual threat” to that individual's “life or person”.

  • (5) Given that the whole territory of Iraq is in a state of internal armed conflict for IHL purposes (that being conceded by the respondent in this case), a national of Iraq can satisfy the requirement within Article 15(c) that he or she faces return to a situation of armed conflict, but will still have to show that the other requirements of that provision are met.

  • (6) Neither civilians in Iraq generally nor civilians even in provinces and cities worst-affected by the armed conflict can show they face a “serious and individual threat” to their “life or person” within the meaning of Article 15(c) merely by virtue of being civilians.


The plight of persons who flee armed conflicts affronts our common humanity. But when such persons claim asylum the answer given by host states has often been that merely being a victim of armed conflict does not make a person a refugee: see e.g. Adan [1999] 1 AC 293. Claims based on human rights, Article 3 ECHR in particular, have often met with a similar negative response: see e.g. Vilvirajah v UK (1991) 14 EHRR 248. The underlying question raised by this case is whether, by virtue of the provisions made in the EU Qualification Directive relating to eligibility for subsidiary protection, Member States of the EU are obliged to take a different view. That we have to decide this question in the context of a claim made by a national of Iraq, a country which has seen many leave in order to flee conflict there, underscores how potentially important is its answer.


We refer throughout this decision to the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”), in particular to Article 15 of this Directive, because that is the “common text” we share with courts and tribunals in other Member States. It is important to note, however, that our decision in this case is made under para 339C and related paragraphs of the Immigration Rules HC395 as amended, it being these rules, together with the Refugee or Person in Need of International Protection (Qualification) Regulations SI 2006/2525 (“the Protection Regulations”) which have implemented into United Kingdom law the provisions of the Qualification Directive concerning international protection. We likewise refer for the most part to “subsidiary protection”, that being the term used in this Directive; but for the purposes of the Immigration Rules and the Protection Regulations the term is “humanitarian protection”. Since we refer frequently to “IHL”, we should identify at the outset that this is the body of international law applicable to international and non-international (internal) armed conflicts (formerly known as the “laws of war”). It comprises both treaty law (e.g. the 1949 Geneva Conventions) and customary international law. The most widely applicable provision of IHL is common Article 3 to the four 1949 Geneva Conventions. It stipulates that in the case of international and non-international armed conflict:

  • “(1) Persons taking no active part in the hostilities…shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

    To this end the following acts are and shall remain prohibited at any time and in any place, whatsoever with respect to the above-mentioned persons:

    (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

    (b) taking of hostages;

    (c) outrages upon personal dignity, in particular humiliating and degrading treatment;

    (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, afforded all the judicial guarantees which are recognised as indispensable by civilised peoples.

  • (2) The wounded and sick shall be collected and cared for.

  • …”

According to the UK Ministry of Defence Manual of the Law of Armed Conflict, the basic principles of IHL are “military necessity, humanity, distinction and proportionality” (p.387).

The appeal

The appellant is a national of Iraq. In a determination notified following a hearing on 21 February 2007 Immigration Judge R Morris dismissed his appeal against a decision dated 4 December 2006 to remove him as an illegal entrant, a decision which was made in the light of an earlier decision dated 30 November 2006 refusing to grant him asylum. He successfully obtained an order for reconsideration and so the matter comes before us.


The basis of the appellant's claim was that he was born in Kirkuk to an ethnic Arab father and an ethnic Kurdish mother. Save for a period of less than one year when he went to Baghdad to join his cousin who was working there, he had lived all his life in Kirkuk, until he left Iraq in late July 2006. He worked as a taxi driver but then joined the police in Almas, Kirkuk. After one year and ten months he left this job because of threats to him and his family by insurgents and because his identical twin brother had been nearly killed by terrorists.


The Immigration Judge did not find the appellant's account credible. She did not accept that the appellant faced a real risk of suffering persecution or serious harm in his home area of Kirkuk. In particular she did not accept that the appellant would face a serious and individual threat by reason of indiscriminate violence in a situation of international or internal armed conflict. She stated:

“As set out in the Supplementary Letter, the United Kingdom has not accepted that Iraq is in a state of civil war. It is not accepted either that the situation there amounts to internal armed conflict. This is in line with the findings of UNHCR. This being the case, so far as the appellant's past adverse experiences are concerned, I find that the situation in Iraq, (even in the turbulence of Baghdad) is not one that can be characterised as internal armed conflict, serious though the internal strife in that country is. In summary, the threat to the appellant is not personal or ‘individual’ to him.”


She did, however, accept that he was from Kirkuk, of mixed Arab and Kurdish ethnicity, and that:

“given the precarious security situation in Iraq, the appellant might have faced dangerous and violent situations and that members of his family may well have been killed in the general military and civilian upheaval in Iraq”.


Having found that the appellant was not at risk in his home area, the Immigration Judge also dealt briefly, in the alternative, with the question of whether he could relocate in any event to other parts of Iraq. Given his mother's Kurdish ethnicity, the Immigration Judge considered that “if he preferred, he would be able to relocate to the Northern Governorates” (para 22(v)).


In line with these conclusions the Immigration Judge found that the appellant was not at real risk of treatment contrary to Articles 2 and 3 of the ECHR.


The grounds for reconsideration raised two challenges. One was to the Immigration Judge's adverse credibility findings. The other was to the Immigration Judge's failure to apply para 339C of HC 395 to the appellant's claim “adequately or at all”. The order for reconsideration was confined to the second ground.

The HH appeal

We heard the appellant's appeal together with the appeal of HH ( IA/01739/2007). In the event we decided to issue a separate determination in HH's case. We would emphasise, however, that we have taken fully into account in this case all the evidence submitted by HH's representatives, together with the submissions made on his behalf by Mr M Symes (instructed by IAS (London)).


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