Upper Tribunal (Immigration and asylum chamber), 2019-12-20, [2019] UKUT 400 (IAC) (SMO, KSP & IM (Article 15(c); identity documents)(CG))

 
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Upper Tribunal

(Immigration and Asylum Chamber)


SMO KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 00400 (IAC)


THE IMMIGRATION ACTS



Heard at Field House

Decision & Reasons Promulgated

On 24, 25 and 26 June 2019



…………………………………



Before


UPPER TRIBUNAL JUDGE PERKINS

UPPER TRIBUNAL JUDGE BLUNDELL


Between


(1) SMO

(2) KSP

(3) IM

(ANONYMITY ORDERS MADE)

Appellants

and


SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent


Representation:


For the First Appellant:

Mr S Knafler QC and Ms M Cleghorn of counsel, instructed by Halliday Reeves


For the Second Appellant:

Mr S Knafler QC and Mr T Hussain of counsel, instructed by Halliday Reeves


For the Third Appellant:

Mr D Bazini of counsel, instructed by Parker Rhodes Hickmotts and Mr C Cole (solicitor) of Parker Rhodes Hickmotts


For the Respondent:

Mr C Thomann and Mr T Tabori, both of counsel, instructed by the Government Legal Department




  1. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE


  1. There continues to be an internal armed conflict in certain parts of Iraq involving government forces, various militia and the remnants of ISIL. Following the military defeat of ISIL at the end of 2017 and the resulting reduction in levels of direct and indirect violence however, the intensity of that conflict is not such that, as a general matter, there are substantial grounds for believing that any civilian returned to Iraq, solely on account of his presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) QD.


  1. The only exception to the general conclusion above is in respect of the small mountainous area north of Baiji in Salah al-Din, which is marked on the map at Annex D. ISIL continues to exercise doctrinal control over that area and the risk of indiscriminate violence there is such as to engage Article 15(c) as a general matter.


  1. The situation in the Formerly Contested Areas (the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-Din) is complex, encompassing ethnic, political and humanitarian issues which differ by region. Whether the return of an individual to such an area would be contrary to Article 15(c) requires a fact-sensitive, “sliding scale” assessment to which the following matters are relevant.


  1. Those with an actual or perceived association with ISIL are likely to be at enhanced risk throughout Iraq. In those areas in which ISIL retains an active presence, those who have a current personal association with local or national government or the security apparatus are likely to be at enhanced risk.


  1. The impact of any of the personal characteristics listed immediately below must be carefully assessed against the situation in the area to which return is contemplated, with particular reference to the extent of ongoing ISIL activity and the behaviour of the security actors in control of that area. Within the framework of such an analysis, the other personal characteristics which are capable of being relevant, individually and cumulatively, to the sliding scale analysis required by Article 15(c) are as follows:


  • Opposition to or criticism of the GOI, the KRG or local security actors;


  • Membership of a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area;


  • LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals;


  • Humanitarian or medical staff and those associated with Western organisations or security forces;


  • Women and children without genuine family support; and


  • Individuals with disabilities.


  1. The living conditions in Iraq as a whole, including the Formerly Contested Areas, are unlikely to give rise to a breach of Article 3 ECHR or (therefore) to necessitate subsidiary protection under Article 15(b) QD. Where it is asserted that return to a particular part of Iraq would give rise to such a breach, however, it is to be recalled that the minimum level of severity required is relative, according to the personal circumstances of the individual concerned. Any such circumstances require individualised assessment in the context of the conditions of the area in question.


B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)


  1. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a Laissez Passer.


  1. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.


  1. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of a current or expired Iraqi passport or a Laissez passer, if the Tribunal finds that P's return is not currently feasible on account of a lack of any of those documents.


  1. Where P is returned to Iraq on a Laissez Passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport.


C. CIVIL STATUS IDENTITY DOCUMENTATION


  1. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel.


  1. A Laissez Passer will be of no assistance in the absence of a CSID or an INID; it is confiscated upon arrival and is not, in any event, a recognised identity document. There is insufficient evidence to show that returnees are issued with a ‘certification letter’ at Baghdad Airport, or to show that any such document would be recognised internally as acceptable proof of identity.


  1. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities. Whether an individual will be able to obtain a replacement CSID whilst in the UK depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process. Given the importance of that information, most Iraqi citizens will recall it. That information may also be obtained from family members, although it is necessary to consider whether such relatives are on the father’s or the mother’s side because the registration system is patrilineal.


  1. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.


  1. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.


  1. The likelihood of obtaining a replacement identity document by the use of a proxy, whether from the UK or on return to Iraq, has reduced due to the introduction of the INID system. In order to obtain an INID, an individual must attend their local CSA office in person to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy. The reducing number of...

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