QD (Iraq) and another v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Sedley
Judgment Date24 June 2009
Neutral Citation[2009] EWCA Civ 620
Docket NumberCase No: 1. C5/2008/1706 & No. 2. C5/2009/0251
CourtCourt of Appeal (Civil Division)
Date24 June 2009
No.1 QD (Iraq)
Secretary of State for the Home Department
No.2 AH (Iraq)
Secretary of State for the Home Department
United Nations High Commissioner for Refugees

[2009] EWCA Civ 620


Lord Justice Sedley

Lord Justice Longmore and

Lord Justice Maurice Kay

Case No: 1. C5/2008/1706 & No. 2. C5/2009/0251




No1. AA/09525/2007

No.2 AA/03993/2007

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Raza Husain and Ms Samantha Knights (instructed by Messrs Bhatt Murphy) for Appellant No.1

Mr Simon Cox and Ms Samantha Knights (instructed by Refugee & Migrant Justice) for Appellant No.2

Mr Pushpinder Saini QC and Mr Deok-Joo Rhee (instructed by Treasury Solicitor) for the Respondent

Mr Michael Fordham QC and Mr Tom Hickman (instructed by Baker & McKenzie LLP) for the Intervener in both cases

Hearing dates: Tuesday 9 and Wednesday 10 June 2009

Lord Justice Sedley

Lord Justice Sedley :

This is the judgment of the court.


The outcome of both of these appeals depends, at least in the first instance, on whether the approach of the Asylum and Immigration Tribunal to the meaning and effect of article 15 of the Qualification Directive is legally flawed. In the second instance it depends on whether, even if the AIT's understanding of the law was incorrect, a correct reading and application of the law could make any difference to the outcome of either case, which was adverse to both appellants.


For reasons which will become apparent when we deal with the law, we consider it impossible to predict with certainty what would be the outcome on the facts already found. These are, in outline, as follows.


QD comes from Samarra in the Salah Al-Din governorate of Iraq. Under the Saddam regime he was a Ba'ath Party member, and his expressed fear is of reprisals. On arrival here in August 2004 he therefore claimed asylum. This was refused, with the result that he faces return unless return is prevented by article 15(c). The immigration judge, applying the law set out in KH (Iraq), to which we will come, concluded that the level of violence in QD's home area did not pose a sufficiently immediate threat to his safety to attract the protection of article 15(c) and so dismissed his appeal. On reconsideration, no material error of law was found. It is against this finding that QD now appeals.


AH, who has just turned 18, comes from Baquba in Iraq. The AIT on a second-stage reconsideration found that, to escape serious local violence, he had moved with his family to Kifri in the Diyala governorate. The tribunal, likewise applying KH, were not satisfied that the level of violence prevalent in Kifri would place AH at sufficient individual risk if (subject to Home Office policy on unaccompanied minors) he were to be returned.


Both cases therefore hinge on the true meaning and effect of article 15 of the Qualification Directive. In addressing this we have had assistance of high calibre submissions, for which we record our gratitude, both from counsel representing the parties and by way of intervention from the Office of the United Nations High Commissioner for Refugees, represented pro bono by the counsel and solicitors named at the head of this judgment. Because UNHCR's written submission contains much valuable background information which it will not be necessary for us to reproduce for the purposes of our decision, we propose, with the authors' permission, to annexe it to this judgment.


While in the nature of things the AIT has been under scrutiny without being separately represented, the determination with which we have been principally concerned – KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023– is a lucid and scholarly judgment capable of holding its own under what has been a concerted attack by the parties and the intervener.

The 2004 Qualification Directive


In the half-century and more that has passed since the 1951 Geneva Convention created the modern concept of the refugee, new tranches of need for protection and new international obligations to provide protection have developed. By the turn of the century it had become apparent that for a variety of reasons it was necessary that the member states of the European Union should give effect to their shared obligations in a way which distributed the burdens equally according to common standards.


The Qualification Directive ( Council Directive 2004/83/EC) thus forms part of the Common European Asylum System. It sets, according to its headnote and (with one immaterial variation) its first article,

“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.”


As this suggests, the Directive brings together classical Geneva refugee status with what it calls subsidiary protection status. The latter status has broadly two sources. One is the obligation assumed by all EU member states as part of the Council of Europe to give effect to the rights contained in the European Convention on Human Rights and Fundamental Freedoms – essentially rights of non-refoulement for individuals who cannot establish an affirmative right to asylum. The other is the humanitarian practices adopted by many EU states, the UK included, towards individuals who manifestly need protection but who do not necessarily qualify under either convention. Among these are people whose lives or safety, if returned to their home area, would be imperilled by endemic violence.


Article 2 (in its material parts and with emphasis added) provides:

For the purposes of this Directive:


(e) 'person eligible for subsidiary protection' means a third country national …. 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, … would face a real risk of suffering serious harm as defined in article 15, … and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.”


Article 15 provides:

Serious harm

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.


Such persons are required to be granted subsidiary protection status (article 18) unless an internal relocation alternative is open to them (article 8) or until the risk in the country of origin ceases (article 16).


It is also left open to member states, by article 3, to adopt more favourable standards of protection. This the UK has already done by paragraph 339C of the Immigration Rules, which repairs the surprising omission of article 15 to provide for protection from a real risk of targeted deprivation of life in breach of ECHR article 2. Rule 339C accordingly adds unlawful killing to the tabulation of forms of serious harm which, for the rest, it takes directly from article 15.


Among the 40 paragraphs of the preamble to the Directive, at least three have a bearing on the meaning of these provisions:

(24) Minimum standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.

(25) It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.

(26) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.

International humanitarian law


It is appropriate to begin by considering the approach to these provisions taken by the AIT in KH (Iraq). Their analysis was, in summary, that because the vocabulary of article 15 was clearly drawn from international humanitarian law, that was the context within which and the end to which the article should be interpreted and applied. The determination explains carefully why the AIT arrived at their premise; and if we took the same view of the premise, we would have much sympathy with their conclusions. But, in agreement with all three counsel, we respectfully consider the premise to be incorrect and the conclusions to fall with it. Since both tribunals from which the present appeals come took their law, as they were required to do, from KH, their decisions too cannot stand.


International humanitarian law (IHL) is the name given to the body of law which seeks to protect both combatants and non-combatants from collateral harm in the course of armed conflicts. It thus has a specific area of operation. It also, however, has defined and limited purposes which do not include the grant of refuge to people who flee armed conflict. This should, we respectfully think, have sounded a warning bell to the tribunal which decided KH. But the Home Secretary had accepted that Iraq was currently in a state of internal armed conflict within the meaning given to the phrase by IHL and the tribunal went on (§33–39) to...

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