C5/2013/0009/AITRF and C5/2012/3109/AITRF
ON APPEAL FROM THE UPPER TRIBUNAL (ASYLUM & IMMIGRATION)
MR JUSTICE COLLINS sitting with Upper Tribunal Judge Storey and Upper Tribunal Judge Allen
HM and others (Article 15(c)) Iraq CG  UKUT 00409(IAC)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ASYLUM & IMMIGRATION)
Upper Tribunal Judge Allen sitting with Upper Tribunal Judge Kekié and Upper Tribunal Judge Coker
MK (documents-relocation) Iraq CG  UKUT 00126 (IAC)
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL
LORD JUSTICE ELIAS
LORD JUSTICE FULFORD
| HF (IRAQ)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Michael Fordham QC, Ms Sonali Naik and Ms Bryony Poynor (instructed by Sutovic & Hartigan) for the Second and Third Appellants
Mr Hugh Southey QC and Mr Tassadat Hussain (instructed by Halliday Reeves Solicitors) for the Fourth Appellant
Mr James Eadie QC and Mr Christopher Staker (instructed by The Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Justice Elias :
The applicable law.
"For the purposes of this Directive….
(e) 'person eligible for subsidiary protection' means a third country national or stateless person 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, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk unwilling to avail himself or herself of the protection of that country;
(f) 'subsidiary protection status' means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection."
"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."
In practice those facing the risks identified in paragraphs (a) or (b) are likely to be entitled to claim refugee status because their treatment will be likely to engage either Articles 2 or 3 of the European Convention of Human Rights (provided that they could establish that the harm they feared was on account of one of the grounds specified in the Convention).
"1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin."
"The CJEU requires us to decide whether the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level as to show the existence for an ordinary citizen of a real risk of serious harm in the country or in the particular region."
The background to HM2.
Country guidance cases.
"The system of Country Guidance determinations enables appropriate resources, in terms of the representations of the parties to the Country Guidance appeal, expert and factual evidence and the personnel and time of the Tribunal, to be applied to the determination of conditions in, and therefore the risks of return for persons such as the appellants in the Country Guidance appeal to, the country in question. The procedure is aimed at arriving at a reliable (in the sense of accurate) determination."
The guidance issued by the Upper Tribunal in HM2.
"(i) whether there is a risk to the appellants of indiscriminate violence arising from armed conflict within the meaning of Article 15(c) of the EU Qualification Directive in their home areas in Iraq (in the case of HM and RM Kirkuk and in HF Baghdad);
(ii) apart from their age and gender it is envisaged that the other characteristics of the appellants that may be relevant to assessment of risk of indiscriminate harm are: they are all Sunni Muslims, they speak respectively Kurdish Sorani and Arabic (HF), and may be of Kurdish ethnicity;
(iii) whether any of the appellants will suffer inhuman or degrading treatment contrary to Article 3 ECHR and/or Article 15(b) of the Qualification Directive on return to Baghdad Airport or any place connected with the process of return;
(iv) if there is such a risk as in (i) above then whether internal relocation to any part of Iraq is available to them and whether they will be able to access such protection without suffering ill-treatment as per (iii) above ….."
"i. Whilst the focus of the present decision is the current situation in Iraq, nothing in the further evidence now available indicates that the conclusions that the Tribunal in HM1 reached about country conditions in Iraq were wrong.
ii. As regards the current situation, the evidence does not establish that the degree of indiscriminate violence characterising the current armed conflict taking place in the five central governorates in Iraq, namely Baghdad, Diyala, Tameen (Kirkuk), Ninewah, Salah Al-Din, is 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.
iii. Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) for civilians who are Sunni or Shi'a or Kurds or have former Ba'ath Party connections: these characteristics do not in themselves amount to "enhanced risk categories" under Article 15(c)'s "sliding scale" (see  of Elgafaji)."
"iv. Further evidence that has become available since the Tribunal heard MK (documents - relocation) Iraq CG  UKUT 126 (IAC) does not warrant any departure from its conclusions on internal relocation alternatives in the KRG or in central or southern Iraq save that the evidence is now sufficient to establish the existence of a Central Archive maintained by the Iraqi authorities retaining civil identity records on microfiche, which provides a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq."
"v. Regarding the issue of whether there would be a risk of treatment contrary to Article 3 ECHR arising from returns from the UK to Baghdad International Airport (BIAP):
a) If a national of Iraq who has failed to establish that conditions inside Iraq are unsafe is compulsorily returned to Baghdad International Airport (BIAP) on either a current or expired Iraqi passport, there is no real risk of detention in the course of BIAP procedures (except possibly in respect of those who are the subject of a judicial order or arrest warrant). Nor is there such a risk if such a person chooses to make a voluntary return with a laissez passer document which can be issued by the Iraqi embassy in the UK.
b) If, however, such a person is compulsorily returned to BIAP without either a current or expired Iraqi passport, he may be at risk of detention in the course of BIAP procedures and it cannot be excluded that the detention conditions might give rise to a real risk of treatment contrary to Article 3 ECHR. Such a risk is however, purely academic in the UK context because under the current UK returns policy there will be no compulsory return of persons lacking such documents."
The grounds of appeal.
i) The Tribunal erred in law in rejecting the proposition that departure from UNHCR's Eligibility Guidelines "should only take place for a cogent and identified reason." Here there was a departure and no good reasons were given at all. In the absence of such reasons, the Tribunal ought to have found that there might be cases where Article 15(c) protection was required, as the UNHCR had concluded.
ii) The Tribunal erred in law in its consideration of relocation. In particular, it erroneously concluded that it was possible to enter and thereafter reside in the KRG even without a sponsor to verify the standing of the applicant. In reaching this conclusion, the Upper Tribunal had confused the requirements for entering the region for a short period, which did not necessarily require support of a sponsor, with the need to register and obtain an information card to reside, which did generally require one.
iii) The Tribunal erred in law in failing to determine whether or not the risk to those who returned without documents and were detained at Baghdad Airport for investigation reached the Article 3 level of ill-treatment. The Upper Tribunal had wrongly characterised the issue as academic because the Secretary of State had adopted a policy not to return individuals without the necessary documentation. That was not a legitimate position for the Tribunal to adopt: it should have posed the question whether, if the appellants had been returned, they would have suffered ill-treatment amounting to a breach of Article 3. Mr Fordham QC, counsel for the appellants in HM2, submits that there was cogent evidence that they would, although he accepts that if he succeeds on this argument, we would need to remit the case for the matter to be considered again.
The status of the UNHCR eligibility guidelines.
"In previous country guidance cases the Tribunal has almost always attached very considerable weight to UNHCR guidelines on risk categories in particular countries, although it has seen the degree of weight to be attached to be dependent on a number of factors including whether or not UNHCR has a presence on the ground in the country concerned. A similar approach has been adopted by the ECtHR, e.g. in NA v UK and Sufi and Elmi.
Mr Fordham sought to persuade us that we should indeed accord a more primary status to UNHCR Guidelines so as to reflect its status and mandate, its detailed assessment and rigorous standards of due diligence such that it is not appropriate to depart, "save for a cogent and identified reason", from UNHCR's guidelines."
After referring to a passage from the judgment of Sir Stephen Sedley in the case of EM (Eritrea) & Ors v Secretary of State for the Home Department  EWCA Civ 1336 (reproduced in para 37 below) which emphasises the special status of the UNHCR, the Tribunal continued:
"However, we are unable to accept Mr Fordham's proposition, not out of lack of respect for UNHCR's considered views on country conditions or its immensely thorough and heavily footnoted 2012 Guidelines, but out of concern to ensure we discharge our duty to decide cases on the basis of the evidence and arguments presented to us; bearing in mind that in this, as well as most country guidance cases, we have a very comprehensive body of background evidence together with expert reports and detailed submissions to put alongside the UNHCR materials. We would be very surprised if indeed UNHCR took a different view of what should be our function, but in any event, as Mr Staker pointed out, Mr Fordham's submission on this matter is also contrary to authority: see Mhute v SSHD  EWCA Civ 1029 and R (Golfa) v SSHD  EWHC 2282 (Admin)."
"It seems to us that there was a reason for according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit."
"This said, we also take note of what the Grand Chamber of the ECtHR said recently in Hirsi v Italy (27765/09; 23 February 2012), at paragraph 118:
"[A]s regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection associations such as Amnesty International, or governmental sources ….""
"it is hoped that the guidance and information contained in the Guidelines will be considered carefully by the authorities and the judiciary in reaching decisions on asylum applications."
It does not, therefore, claim any special status for itself.
"So, it is said, the Secretary of State is bound to support and cooperate with the UNHCR. He could only do so by adopting the recommendations. Novel though that proposition be, and much though cooperation and support is to be encouraged, it is hopeless. It is contrary to both principle and authority. There is no basis for contending that this claimant can rely, contrary to the Immigration Act and the Rules made thereunder, on the General Assembly Resolution or Executive Committee conclusions."
"It would be an error of law, in my judgment, for an immigration judge dealing with return to Iraq to refuse on principle to consider any UNHCR Advisory Report on Iraqi asylum-seekers and refugees upon which reliance was placed. His or her task is to decide what passages, if any, are relevant and to gauge the weight to be given to them in the context of the rest of the evidence and argument. That, notwithstanding his citation of the IAT decision in GH, is what the immigration judge in this case sought to do."
Reliability of the UNHCR guidelines.
"We pay great respect to the views of UNHCR in particular, whose sources include not only widely available background data but also feedback from UNHCR operations, UN agencies and other partners in Iraq. At the same time we cannot ignore the fact that UNHCR is a major international actor in Iraq, being heavily involved, inter alia, in programmes to assist returns to Iraq by externally displaced persons (EDPs) among others. We are not in a position to say whether UNHCR's role in Iraq means that its assessment of risk on return is influenced by its concerns about the viability of returning refugee flows. Nor are we in a position to know why, at least prior to 31 May 2012, UNHCR felt able to say on the one hand that no one from the 5 central governorates should be forcibly returned to Iraq because of high levels of indiscriminate violence there, yet on the other hand to engage in UNHCR-facilitated voluntary returns to Iraq, including to those governorates. … What these factors do demonstrate to us, however, is that we must make our own assessment of Article 15(c) risks based on the evidence as a whole and the UNHCR materials are only a part of that evidence."
The issue of relocation.
"The report also noted that there were 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 elsewhere in Iraq, including the disputed areas. Nor were there any records of Iraqi nationals having been deported from the KRG to elsewhere in Iraq, including the disputed areas, for not having a sponsor/ guarantor and, although such a person was legally responsible for the person they were sponsoring, there were no accounts of any sponsor/guarantor having been arrested or detained by KRG authorities."
"Drawing this evidence together, we accept that, though there may be a unified procedure in theory at all KRG checkpoints, it is subject to variations and change from time to time, especially at times of actual or perceived heightened risk. We also accept the generally consistent evidence as to the three types of entry card (tourist work and information), and the fact that a Kurd wishing to enter the KRG will not need a guarantor or sponsor (kafil), though an Arab may. There is a requirement of registration with the Asayish, at which time the CSID, the INC, the PDS card, a copy of a rental or house purchase agreement, a letter of recommendation from the mukhtar of the area of proposed residence and, perhaps a letter from a sponsor will have to be provided."
It is not entirely clear whether the observation about the sponsor in the last sentence is simply reflecting the difficulty of reaching a clear conclusion given that there was contradictory evidence on the point, or whether it was envisaged that such a letter would sometimes be required, perhaps in some governorates.
"Entry into and residence in the KRG can be effected by any Iraqi national with a CSID, INC and PDS, after registration with the Asayish (local security office). An Arab may need a sponsor; a Kurd will not."
This seems to suggest that there is no need for a sponsor's letter either for entry or residence, save possibly for an Arab. But the evidence was that this distinction between Kurd and Arab was in respect of entry rather than the later stage of registration.
The relocation decision in HM.
"Taking the evidence as a whole, we consider that if anything, it tends to show that no-one needs a sponsor, rather than, as was concluded in MK, that a Kurd will not and an Arab may. By needing a sponsor we refer not only to entry but also to residence in the KRG. However, since we accept that what we identify is a trend in the evidence rather than a fixed conclusion, we do not propose to go beyond the guidance in MK, and on this evidence we are confident that it can properly be endorsed."
Article 3: Mis-treatment on arrival.
"There are three reasons why it is in principle wrong for the court to allow the Secretary of State to determine any element of the asylum claim. First, it involves an unlawful delegation of the judicial function allowing the Executive to determine matters falling within the jurisdiction of the court. Second, it means that the case will be determined not on the basis of the evidence before the court but on speculation as to what the facts are likely to be at some time in the future. Third, it leaves the asylum seeker in an unacceptable state of limbo pending the future clarification of his status. He is technically illegally in the country and yet he is unable to return to his home State until further steps have been taken sufficient to guarantee his safety. If he is entitled to refugee status or protection from removal on human rights grounds, even if only on the basis that he should be given leave to remain for limited duration, he ought to be given that status or protection from removal at least for the period when his safety is potentially compromised."
The case-specific features of MK.
"It may be considered that the reasoning of the Immigration Judge was unduly restrictive. The appellant's evidence was that the family had been victims of a targeted campaign by insurgents/terrorists from November 2007 until she left in January 2008. From the nature of the events which were described such was capable of the finding of specific targeting, it was contended therefore that the Immigration Judge erred in finding such were random acts of violence in the circumstances. It is perhaps unnecessary in those circumstances to identify the precise identity of the agent of persecution."
"We remind ourselves of the findings of the judge on the appellant's history. We note the point made by Mr Hussain concerning the comment by the Senior Immigration Judge at the error of law hearing that, in effect, the event the appellant described was such as being incapable of giving rise to a finding of specific targeting while noting the contention that the judge erred in finding that these were random acts of violence in the circumstances and that it was perhaps unnecessary to identify the precise agent of persecution.
This does not, in our view, amount to a conclusion that the judge erred in finding that the appellant could not show a link between the grenade attack, the death of her husband and eldest son and the kidnapping of the other son. Nor does it amount to a finding that the judge erred in finding that the appellant had not shown that she was specifically targeted by a person or group. The Senior Immigration Judge's remarks in this regard are tentative. The judge seems to have adopted joint submissions before him that there were material errors of law in the approach taken by the Immigration Judge, relating in part to the approach to Article 15(c) of Directive 2004/83/EC, and concluding that reconsideration was properly to be ordered.
There is therefore, as can be seen, some difficulty with these findings, but it is our view, as expressed above, that they do not amount to a finding that the judge erred in his conclusion that, in effect, the appellant and her family had been the victims of random violence and had not been able to identify an agent of persecution. As part of remaking the decision we conclude that the appellant on the evidence taken as a whole, has not shown that she and her family were the victims of specific targeting and has not shown anything other than random violence." (Italics added).
Lord Justice Fulford:
Lord Justice Maurice Kay: