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Cite as: [2011] ECHR 1315
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FOURTH SECTION
Application no.
65580/10
by Y.A.
against the United
Kingdom
lodged on 8 November 2010
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Y.A., is an Iraqi national who was born in 1978 and lives in Chester.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 25 February 2008 and made an application for asylum the same day. He claimed that he had been persecuted in Basra, in southern Iraq, because he was a Chaldean Christian. He claimed that his family had run a shop that had sold alcohol and that, in late 2005, they had been warned to stop doing so. In early 2006, the shop had been targeted by explosions which had led the applicant to stop working temporarily to allow the situation to calm down. In November 2006, his father had been kidnapped and killed by men who the applicant presumed to be the Al-Mahdi Army. In September 2007, armed members of the Al Mahdi Army had come to his home and demanded that he convert to Islam or leave the city. The applicant had considered that he had no choice but to leave Iraq for his safety.
On 19 February 2009, the Secretary of State refused his asylum application for unknown reasons.
In a decision promulgated on 24 April 2009, the then Asylum and Immigration Tribunal (“the AIT”) dismissed his appeal. The Immigration Judge accepted that the applicant was a Chaldean Christian and that he had fled from Iraq having been presented with an ultimatum by members of an armed group that he should either convert to Islam or leave the city of Basra. The Immigration Judge also accepted that the applicant could not return to Basra and that it would not be possible for him to internally relocate to the Kurdish Regional Government controlled area of Iraq. Nevertheless, relying on the Country Guidance determination of RA (Christians) Iraq CG [2005] UKIAT 00091 (see domestic law and practice below) but accepting that the situation for Christians in Iraq had worsened slightly since the promulgation of that determination, the Immigration Judge found that there was not a systematic and consistent pattern of mistreatment of Christians in Iraq. He concluded that the applicant could safely relocate to Baghdad or elsewhere in Iraq and that it would not be unreasonable or unduly harsh to require him to do so, particularly given that a large number of Christians remained in Iraq despite the difficulties that they faced there.
On 14 May 2009, a Senior Immigration Judge refused his application for reconsideration.
On 9 September 2009, the Court of Session refused a further application for reconsideration stating that the fact that it was considered unsafe for the applicant to return to Basra did not in itself justify the conclusion that there was a pattern of systematic persecution of Christians throughout Iraq.
In December 2009, the applicant submitted further representations to the United Kingdom Border Agency (“UKBA”) based, inter alia, on threatening letters which he had received and news articles relating to increasing attacks upon Christians in Iraq. On 8 January 2010, UKBA rejected those representations as not amounting to a fresh claim.
On 1 April 2010, the Court of Session refused the applicant’s application for judicial review of UKBA’s decision of 8 January 2010 finding that:
“It is not now disputed that the petitioner had to leave his home city of Basra owing to a well-founded fear of persecution by reason of his religious affiliation. However his claim for asylum in the United Kingdom as a refugee was refused because he had the option of internal flight within Iraq to an area with a substantial Christian population where the risk of sectarian violence was materially less.”
The Court of Session concluded that there had been no error of law in the Secretary of State’s decision to refuse the applicant’s further representations because he had been entitled to conclude that the new information about Christians in Iraq was not significantly different from the information which had already been before the AIT at the hearing in 2009. It was considered to be clear from the AIT determination that the Immigration Judge had considered objective information from a wide range of sources relating to the situation of Christians in Iraq and the difficulties that they faced.
In July 2010, the applicant left the United Kingdom and tried to claim asylum in Ireland. On 9 August 2010, the applicant was returned to the United Kingdom by the Irish authorities and tried to renew his claim for asylum. On 26 August 2010, the Secretary of State refused his asylum claim and certified it as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002 (see domestic law and practice below) because it was identical to his earlier, unsuccessful asylum claim of 2009.
On 3 September 2010, the applicant submitted further representations to UKBA which were refused on 20 October 2010. It was acknowledged that there continued to be sporadic incidents of violence towards Christians in Iraq but noted that the AIT had been fully aware of the same. It was considered that the applicant would have a sufficiency of protection from the Iraqi authorities as well as the option of internal relocation within Iraq.
On 15 November 2010, the applicant submitted further representations claiming that he had received new threatening letters from the Al-Mahdi Army and Al-Qaeda and that, in light of the deteriorating situation for Christians in Iraq, he remained at real risk of ill-treatment upon return.
On 28 November 2010, UKBA refused those representations as not amounting to a fresh claim. First, the letters that he had submitted were not accepted as being genuine or reliable given that, inter alia, it was not credible that he would get letters advising him not to return three years after he had left Iraq; the letters were not on any headed notepaper and bore no official seal; their timing just before his removal was suspicious; and he had previously employed deception by providing a false name to immigration authorities. Furthermore, any objective evidence that the applicant had submitted relating to the situation of Christians in Iraq was general in nature and not specific to the applicant. The AIT had been aware of the applicant’s faith and had found that the applicant could relocate within Iraq.
On 8 December 2010, the Secretary of State for the Home Department set removal directions for the applicant to be returned to Iraq on 17 December 2010.
On 15 December 2010, the High Court refused an application for interim relief to stop the applicant’s removal to Iraq scheduled to take place on 17 December 2010.
On 16 December 2010, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be expelled until further notice.
On 12 January 2011, the High Court refused an application for permission to apply for judicial review on the papers. Burnett J stated that:
“On analysis, the Claimant is suggesting that no Christian can be returned safely to Iraq. That is not a tenable position. The SSHD [Secretary of State for the Home Department] has dealt properly with all the arguments advanced in support of the fresh claim and was fully entitled to reach the conclusions that she did.”
Burnett J further considered that the case was totally without merit and that any renewal of the application was to be no bar to removal.
On 5 July 2011, after an oral hearing, a renewed application for permission to apply for judicial review was refused by the High Court for similar reasons to those given by Burnett J. It was considered that there was no arguable case that the Secretary of State had not been entitled to reach the conclusion that the further representations had not amounted to a fresh asylum claim. The reports of attacks on Christians did not show that they were out of keeping with other attacks that had happened earlier in Iraq.
B. Relevant domestic law and practice
1. Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention.
Section 94(2) of the Nationality, Immigration and Asylum Act 2002 provides that a person may not bring an appeal under section 82(1) if the Secretary of State certifies that the asylum or human rights claim is clearly unfounded.
Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal (“the AIT”). Section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended by the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provided that a party to an appeal could apply to the High Court or the Court of Session, on the grounds that the AIT had made an error of law, for an order requiring the AIT to reconsider its decision on the appeal. The High Court or Court of Session could make such an order if it thought that the AIT had made an error of law. At the relevant time, all applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the AIT. If the immigration judge refused to make an order for reconsideration, the applicant could renew the application to the High Court or Court of Session, which would consider the application afresh.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Fresh asylum and human rights claims
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
3. Country Guidance determinations
Country Guidance determinations of both the former AIT and the Upper Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Upper Tribunal or the AIT that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence.
In the country guidance determination of RA (Christians) Iraq CG [2005] UKIAT 00091, the AIT found that there was no general risk of persecution to Christians in Iraq stating the following:
“Increasing numbers of Christians are leaving Iraq, though equally it is clear that significant numbers remain. The number of Christians in Iraq would appear on the evidence as a whole (and in this regard we consider that the recent report in the Daily Telegraph is somewhat in error in this respect) to be in the order of some 600,000. It is said that at one point there were over a million prior to the downfall of Saddam Hussein’s regime. We are persuaded by the number of examples to which we have referred above in the evidence and the general atmosphere of fear that the situation is closer than it was to one where there is a real risk of persecution or breach of their human rights for Christians in Iraq. We are not persuaded however that it has reached the point of crossing the threshold so as to become a real risk. It is clear that Christians are still meeting together and attending church, albeit in an atmosphere of increasing concern, and increasing examples of attacks and are clearly feeling inhibited from expressing their religion to an extent which, we accept, comes closer than previously to amounting to a real risk of persecution. However we conclude that the evidence falls short as of today of indicating that the appropriate threshold is crossed.”
HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) was a country guidance determination delivered by the Upper Tribunal on 20 September 2010, which concerned the appeals of four Iraqi nationals from various parts of Iraq.
The Upper Tribunal prefaced its assessment of the general levels of violence in Iraq by stating that the case was not concerned with people who had a credible claim to exposure to violence based on something other than simple nationality of Iraq (or young age or particular geographical location); it was not concerned, for example, with government employees, families of members of the security forces, political leaders, members of religious minorities in vulnerable areas, who might be at significantly greater risk of being the victims of such violence by reason of such characteristics.
The Upper Tribunal’s principal conclusions were (at paragraph 278):
“i. Although Iraq is still a ‘weak state’ afflicted by many problems, the [Government of Iraq] armed forces have demonstrated the capacity to maintain the improved levels of security that have been present since 2008 and the present evidence does not suggest that that capacity will collapse now there has been withdrawal of all but around 50,000 US troops on 31 August 2010 (the latter principally concerned with training).
ii. We do not find that the degree of indiscriminate violence characterising the current armed conflict taking place in Iraq reaches such a high level that substantial grounds are 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. However, we do not rule out that if in certain areas the figures rise to unacceptable levels (relative to the size of the population in that area) that Article 15(c) might be engaged, at least in respect of the issue of risk in the home area, although we would emphasise that any assessment would be one that was both quantitative and qualitative and took into account a wide range of variables, not just numbers of attacks or deaths. For example, it is necessary to bear in mind that both in Ninewah (which is the second largest governorate by population (approx. 2,800,000)) and in Mosul (which has a population of approx. 1,800,000) the population is experiencing particular problems: see [261] above.
iii. But even if there were certain areas where the violence reached levels sufficient in our judgment to engage Article 15(c) we consider that there is likely to be considerable scope for internal relocation that achieves both safety and reasonableness in all the circumstances. We consider UNHCR’s submissions on internal relocation are tied in with general policy considerations (e.g. about managing the rates of return) deriving from their general and Iraq-specific remit; we do not consider that in the light of the evidence taken as a whole that their submissions establish for mere civilian returnees a real risk of persecution under the Refugee Convention or of serious harm under either the Qualification Directive or Article 3 ECHR currently.
iv. The current levels of violence in Iraq are unacceptably high but the consensus of the evidence is that a very significant proportion of the violence is targeted against persons with specific characteristics over and above being mere civilians: government officials, security personnel, civil servants, religious and political leaders, members of professional groups such as journalists, educators, medical doctors, judges and lawyers and attacks also are directed against persons based on their perceived sexual orientation, with violence against women and ‘honour’ –related homicides (at least in certain parts of Iraq) being a serious concern: see above [97]. Whilst civilians as such are adversely affected by such targeted violence, that is clearly not the same as being the actual targets. Such persons – persons who are at greater risk – are very likely to be eligible for either refugee protection or subsidiary (humanitarian) protection under Article 15(b), as well as under Article 15(c) of the Qualification Directive under the sliding scale set out in Elgafaji at [39].
v. The assessment is not purely quantitative but if every increased risk factor (linked to one or more of the above characteristics) is stripped out of the equation, that means that the risk facing those who are mere civilians are considerably less.
vi. The evidence relating to UK returnees to Iraq in June 2010 does not demonstrate that the returns process will involve serious harm. 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.
vii. So far as concerns UK enforced returns, we are satisfied that such problems would not result in serious harm.
viii. In short, the risk for mere civilians of being the victim of indiscriminate harm is not so substantial, the ability of the [Government of Iraq] to protect is not so negligible and the willingness of the displaced populations of Iraq is not so compromised that return to that country would require international protection.”
Despite the fact that, on the individual facts of the cases before it, the Upper Tribunal found that none of the appellants faced a real risk of serious harm or ill-treatment, it nonetheless went on to consider the possibility of internal relocation. In this respect, it concluded:
“294. We cannot accept UNHCR’s analysis of the issue of internal relocation material to the present appeals. At [90] they state that with respect to refugee claims of Iraqi asylum-seekers from the Central and Southern governorates who are fleeing persecution from non-state actors, no internal relocation alternative within these five provinces is available generally because of ‘(i) the ability of non-State agents of persecution to perpetrate acts of violence with impunity...’. In brief, we cannot see how targeted pursuit to otherwise safe areas is relevant to fear of indiscriminate violence in unsafe areas.
295. So far as concerns internal relocation from persons who originate from the five central provinces to other areas of Iraq other than the three northern governorates, it follows from our earlier analysis that except possibly in the region currently considered the most dangerous in Iraq, Ninewah/Mosul, that the rest of Iraq can be considered as safe for such relocation.
296. As regards relocation to the KRG, the UNHCR Guidelines when dealing with the three northern governorates consider that (in addition to the difficulties in travelling to them) strict security measures have been introduced by the Kurdish authorities at their checkpoints. Reference is made to the need to have an acquaintance in order to legalise a person’s stay and the need either to establish political links to the region or provide evidence that the person in question has fled violence or persecution. The need for a sponsor is also referred to.
297. We note at this point that in earlier decisions the Tribunal made very similar observations - for example in LM [2006] UKAIT 00060 the Tribunal noted the need for sponsorship for those wishing to enter the governorates of Kirkuk, Sulaymaniyah and Dohuk or for people to have a proven link to the territories. Similar difficulties were noted subsequently in NS [2007] UKAIT 00046 and SR [2009] UKAIT 00038. These essentially mirror UNHCR’s position in UNHCR guidelines in force at the relevant times.
298. However, we now have a report of the Danish Immigration Service dated April 2010. This is entitled: Entry Procedures and Residence in Kurdistan Region of Iraq (KRG) for Iraqi Nationals. It was made following a fact-finding mission to Erbil, Sulaymaniyah, Dohuk, KRG and Amman in Jordan. It is clear from the report that any Iraqi national with an Iraqi ID is free to enter the KRG and free to reside there after registration at a local Asayish office in the KRG. There is no demand for a sponsor or guarantor to be present at KRG checkpoints in order for an Iraqi national to be allowed entry into the KRG. There are no accounts of Iraqi nationals, irrespective of religious or ethnic background, or place of origin in Iraq, being discriminated against at KRG checkpoints or in the KRG, nor of any such people having been deported from the KRG to the [Government of Iraq] area or to the disputed areas. However, Iraqi nationals who are registered on the so-called list of suspects which is also called the blacklist, will not be permitted entry to the KRG. The entry and identification procedures at KRG checkpoints are solely for security purposes. Iraqi nationals who wish to stay for an extended period of time in the KRG have to register at a local Asayish police office after entering the KRG and if an Iraqi national wishes to stay for an extended period of time in the KRG they need a sponsor or guarantor.
299. There are no accounts of Iraqi nationals having been deported from the KRG to the GoI area or to the disputed areas for not having a sponsor/guarantor and although such a person is legally responsible for the person he or she is sponsoring, there are no accounts of any sponsor/guarantor having been arrested or detained by KRG authorities. Iraqi nationals, including IDPs, in the KRG have access to housing and employment, free public health and schooling and are free to move throughout the KRG if they have registered with the Asayish. The KRG entry procedures are uniform in all the governorates of the KRG. It was said by the Head of Political Department, Security Services, Asayish, KRG Erbil, that it was very unlikely that an Iraqi could not find a sponsor/guarantor and he had never heard of cases where this had not been possible. He said that every Iraqi knew someone and it was impossible to think of an Iraqi arriving in the KRG without having a relative, a friend or acquaintance in the region. If this were the case, and the person was unable to find a sponsor/guarantor, their case would be filed at the Asayish anyway, and he said that the person would eventually find a sponsor/guarantor either in Erbil, Dohuk or Sulaymaniyah.
300. We have not had the benefit of any expert evidence commenting on the recent Danish Immigration Service report, but if its conclusions are right, then the need to have a sponsor to enable a person to stay in the KRG (identified in existing Tribunal country guidance) seems to have become somewhat nominal, albeit it remains a formal requirement.”
The Upper Tribunal thus concluded that, even if there were a real risk of serious harm to the appellants in their home areas and internal relocation within central and southern Iraq were problematic, each of the appellants would be able to relocate in safety and without undue hardship to the KRG. It therefore dismissed the appellants’ appeals.
C. Relevant information about Iraq
1. General country information
According to the United Kingdom Border Agency Country of Origin Information (COI) report of 25 March 2011, Iraq’s population is 29,671,605. The country is divided into 18 governorates. The governorates are Anbar, Babil, Baghdad, Basra, Dhi-Qar, Diyala, Dohuk, Erbil, Karbala, Misan, Muthanna, Najaf, Ninewah, Qadisiyah, Salahuddin (Salah Al-Din), Suleimaniyah, Ta’mim and Wasit. The Kurdish Regional Government comprises Erbil, Dohuk and Suleimaniyah (see paragraphs 1.01-1.03 of the report).
The two largest ethnic groups are Arabs, which make up approximately 75-80 per cent of the population, and Kurds, which make up approximately 15-20 per cent of the population. Approximately 97 per cent of the population are Muslims, of which 60-65 per cent are Shi’a and 32-37 per cent are Sunni (paragraph 1.04).
2. Danish Government Report
In a report entitled “Security and Human Rights in South/Central Iraq”, September 2010, the Danish Immigration Service set out the results of its fact-finding mission to Amman and Baghdad between February and April 2010. The report recorded the concerns of various interviewees that, despite a general improvement since 2006, the security situation in Iraq remained volatile, with the Government of Iraq unable to control parts of the country. It also recorded the views of interviewees that ethnic and religious communities were particularly at risk. These included Christians, Sabean Mandeans, Yazidis, non-Arab ethnic communities (Kurds (including Feyli Kurds), Turkmen, Assyrians, Chaldeans and Shabaks), Palestinians and the few remaining Jews in Iraq. Similar considerations applied to certain groups of professionals such as academics, doctors, government officials, journalists, judges, lawyers and senior military officials. Depending on their function and level, former Baathists might also be targeted. Those working for or cooperating with US forces, international organisations or foreign companies might also be at risk but this would depend on the profile of the person concerned, the extent of their involvement and the location of their work.
Interviewees also considered that there was a lack of protection from the authorities against threats from non-state actors. Many Iraqis had instead sought the protection of their tribal networks. One source stated that, if an individual returned after many years abroad, it might be hard to track one’s tribal network again; however, this depended on one’s family, its position and strength and how many remained in Iraq.
3. Report of the Netherlands Government
The most recent official report on Iraq, issued on 27 October 2010 by the Netherlands Ministry of Foreign Affairs and covering the period from February to September 2010 stated, inter alia, that the security situation in the reported period still gave rise to serious concern. The level of violence, however, was strongly variable from one period to another and from one area to another. For instance, the level of violence had deteriorated in the first weeks after the elections of 7 March 2010, but had got back to its original level by the end of April 2010. Furthermore, according to the United States Department of Defense, in the period of 1 March until 31 May around six attacks per day had occurred in Baghdad governorate, less than one in Basra governorate and practically none in the three northern governorates. Even though several sources had observed a slight positive development of the security situation over the years, including in the reported period, there was an interchange of improvements and deteriorations. According to the official report, it could therefore not be concluded that there had been an improvement, nor a deterioration, in the security situation in relation to previous reported periods.
According to the official report, in the reporting period, ethnic, religious and political violence had also taken place, as well as serious crime, particularly in central Iraq. Such violence consisted of bombings, shootings, stabbings, kidnappings, intimidation and other violations of human rights. Sometimes its nature was arbitrary, but it was mainly directed against persons associated with the Government of Iraq, including police officers, military personnel, politicians, civil servants and judges, as well as persons associated with the Shi’ite Islam, especially during religious ceremonies and pilgrimages. Like before, there had been violence against ethnic and religious minorities, such as Christians and Yazidis. Iraqi citizens working for international organisations or for the United States as interpreters or otherwise, as well as homosexuals, lawyers, journalists, doctors, nurses, academics, students, artists and sportsmen ran an increased risk of becoming victims of violence. However, it was not always clear whether persons became a victim because of such qualities. Similarly, it was not always clear who was responsible for individual acts of violence. Especially in southern Iraq, there was violence and intimidation between Shi’ites, albeit to a much lesser extent than in previous reporting periods.
The official report also stated that, according to information from the Government of Iraq, more than two thousand civilians had died through acts of violence in the reported period, and the non-governmental organisation Iraq Body Count (IBC) estimated the number of casualties among civilians at more than 2,800 in the same period whereas – in comparison – in the eight-month period from June 2007 to January 2008, IBC had estimated a number of over twelve thousand casualties.
4. Swedish Government Reports
The Swedish Migration Board most recent country profile report (Landprofil) on Iraq was published on 11 October 2010. Section 1.1.5 of the report surveyed the changing security situation since 2006. It noted that, despite substantial improvements in 2008, since the withdrawal of United States combat troops in August 2010, the number of attacks and security incidents had increased. The report noted:
“After the U.S. troop’s withdrawal, the current situation can be described as if a potential security vacuum has emerged. In particular Sunni extremist groups have made use of this situation. The primary aim of bombing and other attacks has been to destabilise the Iraqi state and to bring about ethnic/sectarian divisions. The attacks which have not been aimed against representatives of the Iraqi authorities have primarily affected the Shi’ite population. ... Many of the attacks were aimed against Sons of Iraq, the Christian minority and other minority groups. ...”
Section 1.3 of the report identified particular vulnerable groups as including: Christians, Sabean-Mandeans, Yazidis, Shabak, Kaka’a , Bahá’i, Palestinians, Feyli Kurds, converts, lesbian, gay, bisexual and transgender persons, and women.
5. United Kingdom Government Reports
The United Kingdom Border Agency’s Operational Guidance Note on Iraq of October 2010 noted improvements in the security situation in Iraq in 2009 and an increased ability of the Iraqi security forces to deal with sources of violence (paragraphs 3.6.2–3.6.10). In respect of internal relocation, it stated (at paragraphs 3.6.13–3.6.20):
“Travel by road within the Central and Southern Governorates has become fairly safe in many areas, but all roads remain potentially dangerous. Roadside bombings, robbery and carjacking remain a daily occurrence in the major populated areas. The main routes from Baghdad to the North, i.e. the Baghdad Western North route from Baghdad through the Governorates of Salah Al-Din and Ninewa and further north to Dahuk as well as the Baghdad Eastern North route from Baghdad through the Governorate of Diyala up to Kirkuk, see daily roadside bombings. In the south, there is a high risk of attacks on most routes in the Governorates of Babel and Wassit, especially in the districts lying closest to Baghdad. Movement may further be limited by curfews and vehicle bans, which can be enforced at short notice (e.g. around religious holidays or elections). Travel by air from Baghdad International Airport has also relatively improved. Though there have been no recent attacks on civilian aircraft, the potential threat still exists.”
However, the Note went to conclude that, in general:
“... although travel by road is sometimes not without incident, ordinary Iraqis travel on a daily basis using many of the major routes; and despite some practical restrictions and registration requirements, internal relocation is not generally precluded.”
For relocation to the Kurdish region, the Note observed that, according to a Danish fact-finding mission of 15 April 2010, there was no longer a sponsor requirement. Although there were security checks, ethnic or religious affiliation did not determine who would be permitted entry to KRG.
For specific categories of asylum claims, it was noted that Iraqis could be at risk of ill-treatment from insurgents, armed groups or Islamic militants on account of their association (or perceived association) with the Iraqi government or because of “un-Islamic” behaviour. Iraqis openly criticising armed groups or political parties (such as tribal/religious leaders, journalists, human rights activists or other professionals) were also at risk of being threatened, kidnapped or killed. Minority groups (such as Yazidis, Shabak and Kaka’a) who were identified as ethnic Kurds had also been targeted, as had owners of liquor, music or barber shops and artists, particularly in Mosul, Baghdad, Kirkuk and Basra. The Note concluded that general fear of Islamic militants did not suffice for the granting of refugee status but there would be individuals whose fear was “over and above” that of the population at large because of aspects of their nature that they could not or should not be expected to change (3.7.17). Assessment had to be based on the merits of the individual case, as well as the extent of the threat and the possibility of internal relocation.
Similar considerations applied for those who claimed to be at risk of kidnapping; those targeted for kidnapping included Christians, Palestinians, members of professional associations and women (3.8.5). The Note also found that, while former Ba’athists were no longer systematically targeted, they might still fall victim in individual cases (3.9.5). Women at risk of honour killings would also qualify for refugee status, but there was also a sufficiency of protection for women in the KRG. Finally, an individual assessment of risk was required for Christians, but the KRG had continued to provide a safe haven for Iraqi Christians fleeing other parts of the country (3.11.13).
6. United Nations High Commissioner for Refugees
In April 2009 UNHCR issued Eligibility Guidelines for assessing the international protection needs of Iraqi asylum-seekers (“the April 2009 UNHCR Guidelines”). The Guidelines surveyed developments in Iraq from 2007 to 2009 and concluded that, in view of the serious human rights violations and ongoing security incidents which were continuing in the country, most predominantly in the five central governorates of Baghdad, Diyala, Kirkuk, Ninewa and Salah Al-Din, UNHCR continued to consider all Iraqi asylum seekers from these five central governorates to be in need of international protection (at paragraph 12 of the Guidelines). For the remainder of the governorates outside of the Kurdish Regional Government (the southern governorates and the Anbar governorate), it considered that the improved security situation meant the needs of asylum seekers from these areas should be individually assessed (paragraph 14). Key groups who would be at most risk of harm in these governorates included members of political parties, government officials, opponents of armed groups, those affiliated with the multinational forces in Iraq, religious and ethnic minorities, professionals, journalists, UN and NGO workers, human rights activists, homosexuals, women and children (paragraph 15). For asylum seekers from the KRG, it considered that their claims should be individually assessed (paragraph 16). The Guidelines also stated that an internal flight or relocation alternative would not be possible within the central or southern governorates and there would be limited possibilities of fleeing from those governorates to the KRG (paragraphs 110 and 111).
In a note issued on 28 July 2010, the UNHCR stated that the current situation in Iraq was characterised by ongoing uncertainty owing to the delay in forming a new government (after elections held in March 2010) and an unpredictable security situation (which would be affected by the withdrawal of United States combat forces by 31 August 2010). It considered, therefore, that its Guidelines of April 2009 continued to apply.
On 3 September 2010, a UNHCR spokesperson expressed concern at the on-going forced returns of Iraqi citizens from Western European countries. He reiterated that the Guidelines asked governments not forcibly to return people from the five central governorates and strongly urged European governments to provide Iraqis with protection until the situation in their areas of origin allowed for safe and voluntary returns.
In a letter to the Registrar of the Court dated 9 November 2010, the Director of the UNHCR Division for International Protection stated:
“... UNHCR will continue to monitor developments in [Iraq] and will update the April 2009 UNHCR Guidelines once it judges that the situation is sufficiently changed. This is currently not the case in light, inter alia, of the unpredictable security situation, the continued serious risks of human rights violations and the poor social conditions.
Therefore, UNHCR advises those involved in the adjudication of international protection claims lodged by asylum-seekers from Iraq and those responsible for establishing government policy in relation to this population to continue to rely on the April 2009 UNHCR Guidelines.
Accordingly, UNHCR recommends that States refrain from forcibly returning Iraqis who originate from the five Central Governorates or who belong to the specific groups which have been identified in UNHCR’s guidelines to be at risk and who originate from the Southern Governorates and Al-Anbar. UNHCR recommends against such forced returns until such time as there is substantial improvement in the security and human rights situation in the country. UNHCR will inform the Registry when updated and revised Eligibility Guidelines are issued.”
Finally, that recommendation was reiterated at a UNHCR press briefing on 17 December 2010, where the organisation’s spokesperson expressed dismay at the decision to return five Christians to Baghdad from Sweden. The spokesperson noted that this return took place when many Christians had been fleeing central Iraq after an attack on the Saidat al-Najat (Our Lady of Salvation) church in Baghdad on 31 October 2010, which killed over sixty people. Since that attack, Christian communities in Baghdad and Mosul had started a “slow but steady exodus” to the Kurdish region, the Ninewah plains, Jordan, Lebanon and Syria.
7. Other United Nations Reports
In his report to the Security Council of 29 July 2010 (S/2010/406), the Secretary-General prefaced his remarks on the human rights situation in Iraq by stating:
“I am concerned with the overall human rights situation in the country, notably the high rate of indiscriminate and targeted attacks against the civilian population. Ongoing violence and targeted assassinations also continue to be reported against government officials, newly elected members of the Council of Representatives, media workers, minority and ethnic and religious groups. In May, approximately 100 Christian students travelling in buses to the University of Mosul were injured and a bystander was killed when two roadside bombs exploded as the buses passed. In April, approximately 50 civilians were killed as the result of bombings in Shi’a neighbourhoods in Baghdad. Between May and June, political figures were also the target of indiscriminate attacks...Journalists and media workers continued to be targeted in attacks aimed at restricting freedom of expression and opinion.”
In his report, dated 26 November 2010 (S/2010/606), the Secretary General added:
“9. The threat faced by minorities was highlighted by the attack on the Catholic Church of Our Lady of Salvation on 31 October and the series of coordinated bomb and mortar attacks in predominately Christian areas of Baghdad on 10 November. An insurgent group linked to Al-Qaeda claimed responsibility for the church attack, warning that all Christians were legitimate targets. Christian leaders and politicians in Iraq condemned the attacks and called on Christians to stay in Iraq, a message which was echoed by Prime Minister al-Maliki during his visit to the church.”
8. Non-governmental Organisations’ reports
(a) Amnesty International
Amnesty International’s position on returns to Iraq is set out in its public statement of 10 November 2010 (AI Index EUR 01/028/2010). Where relevant, this provides:
“Amnesty International believes that it is not safe to forcibly remove anyone to the Iraq provinces of Ninewa (Mosul), Kirkuk, Diyala, Salah al-Din, Baghdad, and to other particularly dangerous areas such as parts of Al Anbar province. The organization considers that anyone whom the host countries are planning on removing to any of the above-mentioned areas of Iraq, whether the individuals concerned originate from those areas or not, should be granted asylum or alternative forms of protection. In those regions of Iraq, as reiterated by the UNHCR, serious risks, including the ongoing indiscriminate threats to life, physical integrity or personal freedom arising from violence or events seriously disturbing public order are all valid grounds for international protection.
Further, when European countries are envisaging removing Iraqis to other areas of Iraq, Amnesty International considers that, in any event, no forcible removals should take place unless and until an individual assessment has been carried out indicating that it would be safe to return the individual in question. Any such assessment should consider, in particular, the viability and safety of the route and method of return within Iraq. Individual safety en route from Baghdad to the destination envisaged by the host country as the eventual place of residence in Iraq should be carefully considered.
Amnesty International calls on European states to grant protection when people would face a real risk of persecution or serious harm en route within Iraq, including a ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.
Further, Amnesty International calls on European states to desist from forcibly removing individuals on the basis that they consider the Kurdistan Region of Iraq as constituting an internal flight alternative for all Iraqis. Moreover, European states should respect the position of the Kurdistan Regional Government which has explicitly stated it is opposed to any forcible returns and will only accept people who choose to go back voluntarily.
Amnesty International calls on European states to ensure that no individual is forcibly removed unless and until in each and every case the authorities in the host country can demonstrate that removals will be conducted in safety and dignity and in a rights-respecting manner; and that the individuals concerned will be reintegrated into Iraqi society and their removals are truly sustainable. This would generally require that the person who is to be removed originates from or has a viable social network in the area where the host country envisages that the individual concerned will eventually reside; thus the individual would be able to establish himself or herself there and removal would therefore not be unreasonable.”
(b) Other reports
The website “Iraq Body Count” records the violent civilian deaths since the military intervention in Iraq in 2003. On 30 December 2010 it reported that, in 2010, there had been 4,038 deaths from violence in 2010 (compared to 4,680 in 2009). This was the smallest year-on-year reduction (proportionally as well as in absolute terms) since violence levels began to reduce from late 2007 onwards. The website reported that Mosul (estimated population 1.8m) remained extraordinarily violent relative to its size, with more events recorded there than in Baghdad (estimated population 6.5m) for the early part of the year. However, Baghdad had become the city in which violence is most prevalent in absolute terms. In 2010, there had been 685 explosions killing 2,649 people, which accounted for 66% of all such civilian deaths. These attacks occurred in thirteen of Iraq’s eighteen governorates.
In the Iraq section of its World Report of 24 January 2011, Human Rights Watch reported:
“Repeated attacks by armed groups targeted civilians, exploiting the political stalemate and Sunni Arab discontent. Violence killed and injured hundreds of civilians each month, in one of the worst periods, more than 500 people died in August alone. Assailants targeted government buildings and officials, checkpoints, embassies, hotels, factories, markets, and mosques, as well as people gathered for religious pilgrimages, weddings, and funerals, mainly in Shia areas.”
The report also noted high levels of gender-based violence and that armed groups continued to persecute ethnic and religious minorities with impunity.
On 10 February 2011, the Center for Strategic and International Studies published its report entitled “Iraq: Patterns of Violence, Casualty Trends and Emerging Security Threats”. The executive summary stated:
“According to the [Government of Iraq], more than 3,600 civilians and ISF personnel were killed in violent incidents during 2010. For the third consecutive month, however, December set a 2010 record for the fewest number of persons killed in attacks, down 151 from the previous month’s 2010 record low of 171. It also shows that more than 70% of the documented security incidents in the war from 2004 to end 2010 were bombs and IEDs. At the same time, it shows a shift in the pattern of violence to targeting Iraqi officials and security personnel. ... however, these data still focus on major incidents. A look on media reports of the chronology of violence show a clear pattern of high profile attacks on civilians designed to discredit the Iraqi government and provoke ethnic and sectarian tensions. It is also critical to understand that these data do not include crime, kidnapping, extortion, perceived bias and failures by the Iraqi security services, and perceptions of the overall effectiveness and fairness of the police and courts.”
The summary also stated:
“Violence in the areas north and west of Baghdad Province largely involved and affected Sunnis, with some directed against Kurds and Christians. Patterns south of Baghdad largely affected Shi’ites. Baghdad Province was the main scene of violence throughout the US-led phase of the fighting, and was largely Sunni vs. Shi’ite. The patterns of [Al-Qaeda in Iraq] Sunni and Sadrist Shi’ite violence are also clear. ... The more recent maps in this section show a steady concentration of violence in the north in Diyala and Ninewa provinces, ongoing violence in Baghdad, and mixed violence in the south – much of it consisting of bombings and suicide attacks designed to create sectarian tension between Sunni and Shi’ite. The final maps in this section highlight the bombings and attacks on civilians mentioned above, new patterns in violence against the Sunni Sons of Iraq, and violence in Basrah Province – a critical area in terms of petroleum development and investment. They highlight the new patterns of violence that are coming to dominate Iraq.”
The report also highlighted the critical importance of Baghdad as a centre of the fighting, stating that it remained “a key center of bombings, suicide attacks, and crime”.
In February 2011, the International Organization for Migration published its findings on the numbers of Iraqi families who had been internally displaced as a result of violence in the country since early 2006 (“Review of Displacement and Return in Iraq”). From a peak of over 16,000 families June 2006, the numbers fleeing violence had dropped to around 1,200 families per month. There had, however, been a marked increase in Christian families fleeing central Iraq after the attack on the Saidat al-Najat church. This had led to over a thousand families seeking refuge in northern Iraq (see also the IOM’s report “Displacement of Christians to the north of Iraq”, 31 January 2011). In total, 1.6 million Iraqis were still living away from their homes.
COMPLAINT
The applicant complains under Article 3 of the Convention that he would be subjected to ill-treatment or torture if returned to Iraq.
QUESTION TO THE PARTIES
Would the applicant’s removal to Iraq breach Article 3 of the Convention?
The parties are requested to comment on the information about Iraq set out in the statement of facts. The parties are also requested to submit to the Court the most recent objective information relating to the situation of Christians in Iraq.
In addition, the parties are requested to comment upon the existence or otherwise of an internal flight alternative for the applicant in Iraq, including the Kurdish Regional Government controlled area, in light of his particular circumstances.
Finally, the parties are requested to keep the Court informed of the progress of the Country Guidance case of HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) currently pending before the Court of Appeal.