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NM (Art 15(B): Intention Requirement) Iraq

Immigration Appeal Reports Cited authorities 25 Cited in 5 Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeNorton-Taylor,Plimmer
Judgment Date07 September 2021
Neutral Citation[2021] UKUT 259 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
NM (Art 15(B): Intention Requirement) Iraq

[2021] UKUT 259 (IAC)

Plimmer and Norton-Taylor UTJJ

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

European Union law — Qualification Directive — Article 15(b) of Directive 2004/83/EC — intention requirement — human rights — Article 3 of the ECHR — inhuman and degrading treatment — medical grounds — deprivation of health care — chronic kidney disease — jurisdiction — Immigration and Asylum Chamber — withdrawal from EU — status of Qualification Directive

The Claimant was a citizen of Iraq, born in 1994. He was of Kurdish ethnicity, a Sunni Muslim, and originated from Kirkuk city. He left Iraq in 2015 and arrived in the United Kingdom in February 2016, claiming asylum on entry. The Secretary of State for the Home Department refused the claim. His appeal against that decision was dismissed. In October 2019, the Claimant made further submissions to the Secretary of State mainly based on his health. He claimed that his return to Iraq would violate Article 3 of the ECHR. Those submissions were rejected in November 2019, but were deemed to constitute fresh protection and human rights claims, thus attracting a right of appeal.

On appeal, the First-tier Tribunal (“FtT”) found that the Claimant was suffering from end-stage chronic kidney disease and that cessation of dialysis could place him at risk of death within a few days or weeks. The FtT Judge concluded there were insufficient means by which the Claimant could access appropriate medical treatment in either Kirkuk or Baghdad. As an attempted relocation to the IKR would not be viable on that basis, the FtT Judge allowed the Claimant's appeal on the grounds of Article 8 of the ECHR. He reached no conclusion on Article 3 of the ECHR and expressly dismissed the appeal on Refugee Convention and humanitarian protection grounds. Permission to appeal was granted by the FtT. The Secretary of State subsequently granted the Claimant 30 months' discretionary leave to remain in August 2020.

Before the Upper Tribunal (“UT”), the Secretary of State accepted that the FtT Judge had erred in his failure to consider Article 3 of the ECHR and in his treatment of Article 15(c) of Directive 2004/83/EC (“the Qualification Directive”). The UT set aside the FtT Judge's decision, preserved his core findings of fact and issued directions. The Secretary of State conceded that the Claimant's appeal should be allowed on Article 3 of the ECHR grounds based on inaccessibility to vital medical treatment. In response, the Claimant confirmed that he relied on Article 15(b) of the Qualification Directive in addition to Article 15(c) of that Directive and Article 3 of the ECHR. The issues considered by the UT were first, whether it had jurisdiction to consider the body of European Union law underpinning humanitarian protection following the United Kingdom's exit from the European Union; and secondly, whether the Claimant was entitled to humanitarian protection on the basis of either Article 15(b) or 15(c) of the Qualification Directive.

Held, substituting a fresh decision allowing the Claimant's appeal in part;

(1) The UT had jurisdiction to consider Articles 15(b) and (c) of the Qualification Directive. The Directive continued to have direct effect by virtue of section 4(2)(b) of the European Union (Withdrawal) Act 2018: G v G[2021] UKSC 9 and Ainte (material deprivation – Art 3 – AM (Zimbabwe))[2021] UKUT 203 (IAC) applied (paras 13 – 75).

(2) The Kirkuk Governorate remained one of the very few areas in Iraq where, whilst not reaching such a high level as to permit all civilians to succeed under Article 15(c) of the Qualification Directive, indiscriminate violence was at a high level and that a correspondingly lower level of individual elements was required to make out a claim for humanitarian protection: SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC) followed. It was in that context that the significance of relevant personal characteristics in the Claimant's case was assessed. Ultimately, even combining his ethnicity, religion, and disability, and applying a lower level of individual elements necessary to meet the required threshold, the Claimant had failed to show substantial grounds that he would face a real risk, as opposed to simply a risk, of a serious and individual threat to his life or person by reason of indiscriminate violence. That applied both to his situation in Kirkuk city and any journey from Baghdad to the home area. On the particular facts of the instant case, the Claimant's status as a Sunni Kurd returnee from the United Kingdom with end-stage kidney failure was not sufficient to bring him within Article 15(c) of the Qualification Directive (paras 20 – 43).

(3) The following essential points regarding Article 15(b) of the Qualification Directive arose from the judgments in M'Bodj v État beige (Case C-542/13) and MP v Secretary of State for the Home Department (Case C-353/16): (a) serious harm, as defined, could encompass a deterioration in health as a result of the absence of appropriate treatment; (b) the risk of serious harm must arise in the individual's country of origin; (c) the infliction of such harm must take the form of conduct by a third party, an “actor of persecution or serious harm” as defined in Article 6 of the Qualification Directive, and could not simply be the result of “general shortcomings in the health system of the country of origin”; (d) it followed that in order to establish the nexus between the serious harm and the conduct of a third party, the individual must show intentionality, namely that they would be intentionally deprived of relevant healthcare by a third party; (e) the intentionality requirement under Article 15(b) had been found to apply even where an individual could benefit from the protection of Article 3 of the ECHR on the basis of ill-health and the unavailability of appropriate healthcare in the country of origin (para 48).

(4) The intentionality requirement under Article 15(b) precluded entitlement to humanitarian protection under the Qualification Directive in a “pure medical claim”. Whether the illness in question was naturally occurring or a consequence of the conduct of a third party, where the deterioration in health as a result of the unavailability of appropriate care in the country of origin was due to general shortcomings in the health system of the country of origin, there would be no causal link between the conduct of a third party and the serious harm. The existence of the intentionality requirement at all showed that something more than the general impoverished circumstances of a country was required. The difference had to be given substance. In order to show entitlement to humanitarian protection under Article 15(b) in cases based on medical grounds and return to a country in which there was an ongoing armed conflict, an individual must show by evidence that substantial grounds existed for believing there to be a real risk of serious harm by virtue of actors of harm, as defined by Article 6 of the Qualification Directive, intentionally depriving that individual of appropriate health care in that country. To establish the intentionality requirement the individual would have to show by evidence a sufficiently strong causal link between the conduct of a relevant actor and the deprivation of health care. Reliance on a degradation of health care infrastructure/provision on the basis of the generalised economic and/or security consequences of an armed conflict in the country of origin would not, in general, suffice. By contrast, Article 3 cases based on medical grounds did not require intentionality on the part of a third party (paras 49 – 73).

(5) To a significant extent, and in the light of the Charter of Fundamental Freedoms of the European Union and the ECHR, Article 3 of the ECHR and Article 15(b) of the Qualification Directive were complementary, with the consequence that there was no material protection gap: Elgafaji v Staatssecretaris van Justitie (Case C-465/07), M'Bodj and SMO considered. It would, however, be incorrect to state that the two provisions were entirely commensurate. There was no material support for the contention that there was a real risk of the Claimant being intentionally deprived of appropriate health care by any of the actors of harm in Kirkuk city, or indeed on a journey from Baghdad to that location: SMO considered. Although the humanitarian situation in the formally contested areas was “very problematic”, the evidence did not refer, for example, to the targeting of health care facilities, the prevention of medical supplies getting through to particular areas, or the denial of access to care for any particular ethnic and/or religious group. The country information did not indicate that the Claimant as an individual or a member of any particular cohort of the population would be targeted such as to deprive him of health care. The evidence did not disclose substantial grounds for believing that the Claimant would face a real risk of being intentionally deprived of relevant health care in Iraq. Therefore, the Article 15(b) claim must fail. Even if that interpretation of Article 15(b) was too restrictive, the Claimant could not succeed in any event. On the assumption that intentionality bore a broader meaning, the case was simply not made out on the evidence. The Claimant's case was, and always had been, a “pure medical claim” and the appropriate protection came from Article 3 of the ECHR, not Article 15(b) of the Qualification Directive (paras 74 – 84).

(6) The Secretary of State's concession on Article 3 of the ECHR was properly made. The Claimant's removal from the United Kingdom would expose him to a real risk of ill-treatment, contrary to Article 3 of the ECHR. It followed that his appeal must be allowed on that basis. It was uncontroversial that the Claimant was not a refugee and his appeal fell to be dismissed...

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