Upper Tribunal (Immigration and asylum chamber), 2010-09-20, [2010] UKUT 331 (IAC) (HM and Others (Article 15(c)))

JurisdictionUK Non-devolved
JudgeMr D K Allen, Dr HH Storey, Mr Justice Blake
Date20 September 2010
Published date22 September 2010
CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date08 June 2010
Subject MatterArticle 15(c)
Appeal Number[2010] UKUT 331 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC)


Heard at Field House

Determination Promulgated

On 8-10 June 2010


















For the Appellants: No appearance

For the Respondent: Christopher Staker and David Blundell instructed by the Treasury Solicitor

  1. Rule 9(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which provides for UNHCR participation in Upper Tribunal proceedings as an intervener in an “asylum case”, is to be construed purposively to include subsidiary (humanitarian) protection.

  1. In deciding whether to accept an application by an appellant to withdraw an appeal in an asylum-related case which the parties have previously agreed was suitable for fresh Tribunal country guidance, particularly relevant will be the importance to the public interest of the Tribunal assisting immigration judges, primary decision-makers and litigants in giving such guidance wherever it is possible and reasonably practical to do so.

  1. The Tribunal may decide that permission to adduce an expert report on a country guidance case shall be given on the basis that the report is disclosed to the Upper Tribunal irrespective of whether the commissioning party intends to call the witness.

  1. Following Elgafaji, Case C-465/07 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.

  1. The degree of indiscriminate violence characterising the current armed conflict taking place in Iraq is not 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.

  1. If the figures relating to indices such as the number of attacks or deaths affecting the civilian population in a region or city rise to unacceptably high levels, then, depending on the population involved, Article 15(c) might well be engaged, at least in respect of the issue of risk in that area, although it is emphasised that any assessment of real risk to the appellant should be one that is both quantitative and qualitative and takes into account a wide range of variables, not just numbers of deaths or attacks.

  1. If there were certain areas where the violence in Iraq reached levels sufficient to engage Article 15(c) the Tribunal considers it is likely that internal relocation would achieve safety and would not be unduly harsh in all the circumstances.

  1. The evidence relating to UK returns of failed asylum seekers to Iraq in June 2010 does not demonstrate that the returns process will involve serious harm. Further, it is significant that UKBA is already taking steps to improve procedures in the light of concerns expressed by UNHCR and others over the two charter flights in that month.

  1. So far as concerns UK enforced returns to Iraq, the Tribunal is not satisfied that recent problems demonstrate that the process results in serious harm.


  1. The decisions reached in this determination are the decisions of all three of us. Each of us has also contributed significantly to its writing.

Part 1: The procedural history and case management issues

The M brothers (RM and HM)

  1. RM arrived in the UK in June 2007 aged 17 and claimed asylum a few weeks thereafter. His brother HM arrived in July 2007 and claimed asylum the same day. On the 17 January 2008 the respondent refused the protection claims of both brothers and decided to remove them to Iraq.

  1. On the 20 March 2008 the IJ dismissed their appeals. He accepted that their father was a former resident of the territory of Kurdish Regional Government (KRG) (now also referred to as the Kurdish Region of Iraq (KRI)) concerned with the oil business who had encountered difficulties with the Kurdish authorities. He had separated from their mother. In 1998 he came to the UK where he sought asylum in 1999. He was granted exceptional leave to remain. Since 1998 the brothers had been living in Kirkuk in the Tameem governorate

  1. The IJ did not accept the core elements of the brothers’ claim to protection and concluded that they did not have a well founded fear of persecution in Kirkuk. Notwithstanding evidence of extremely difficult conditions in Kirkuk with respect to the security and humanitarian situation he rejected the claim to subsidiary protection “for the same reasons” and concluded that the high threshold required to engage Article 3 was not met.

  1. On 10 April 2008 grounds for reconsideration of this decision were drafted by the appellants’ then representative, the Refugee Legal Centre (RLC). The grounds submitted that the IJ had not considered properly or at all humanitarian protection under Article 15(c) of Council Directive 2004/83/EC, the EU Qualification Directive. By this time the Asylum and Immigration Tribunal (AIT) had promulgated its decision in KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023 to which further reference will be made in this judgment. The RLC contended that the AIT had erred in applying too narrow a view of “indiscriminate violence” in that country guidance case and attached their grounds of appeal to the Court of Appeal in KH to the grounds for reconsideration in the present case. Reconsideration was refused on 24 April 2008 by SIJ Storey. It was renewed to the High Court and Blake J directed that reconsideration should take place but be stayed until the decision of the Court of Appeal in KH was promulgated.

  1. In fact the appeal of KH was never determined by the Court of Appeal. Laws LJ had stayed the case pending the outcome of the reference to the European Court of Justice (ECJ) by the Dutch Court in Case C-465/07 Elgafaji v Staatssecretaris van Justitie and it seems that thereafter KH abandoned his appeal by voluntarily returning to Iraq. On 16 September 2008 SIJ Storey noted these events and gave effect to the High Court’s order by staying reconsideration until another Iraq case concerned with the scope of Article 15(c) was heard by the Court of Appeal.

  1. On 17 February 2009 the ECJ gave its judgment in Elgafaji. On 24 June 2009 the Court of Appeal gave its judgment in QD (Iraq) and another v Secretary of State for the Home Department [2009] EWCA Civ 620 disapproving the construction of Art 15(c) adopted by the AIT in KH and remitting the case to a different constitution of the Tribunal for re-determination.

  1. On 26 August 2009 following a case management review (CMR) hearing, the decision of the IJ was set aside but the findings of fact were preserved and the case proceeded to second stage reconsideration on whether “considered simply as two male civilians from Kirkuk these two appellants would face a real risk of serious harm under paragraph 339C of the Immigration Rules (Article 15(c) of the Qualification Directive).” Thereafter the cases were joined with others to proceed as a country guidance case.


  1. On 18 October 2008 the appellant ASA arrived in the UK and claimed asylum and humanitarian protection as a citizen of Iraq born and resident in the city of Baquabah in the governorate of Diyala. The claim was rejected by the Home Office and on 3 February 2009 his appeal was dismissed by the IJ. The judge found that the appellant had fabricated his claim to refugee status and there was nothing by way of a well founded fear of persecution to prevent him returning to his family in Baquabah. Summary conclusions were also reached on the claim to humanitarian protection relying on the Qualification Directive and the judge concluded:

I do not consider that there is sufficient evidence to show that in the Baquabah area there is indiscriminate violence of such severity to pose a threat to life or person generally. In his report Dr Rebwar [Fatah] concludes that Baquabah has been the scene of some serious activities by insurgent groups...

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