Iraq not violent enough to prevent asylum seekers being sent back

5 October 2010 by Caroline Cross

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

In a long-awaited decision on country guidance on Iraq, the Upper Tribunal (Immigration and Asylum Chamber) has held that the degree of indiscriminate violence in Iraq is not so high that the appellants were entitled to subsidiary protection under Article 15(c) Qualification Directive.

However, the IAT indicated that, should the degree of violence become unacceptably high, Article 15(c) might be engaged. The Upper Tribunal also used the opportunity to provide general advice as to how to approach country guidance cases.

The conjoined appeals were brought by four Iraqi males who had failed in their claims for asylum and who were seeking subsidiary protection. The Upper Tribunal was asked to determine (a) whether there was a real risk to the appellants of serious harm within the meaning of para. 339C Immigration Rules (Article 15(c) Qualification Directive) due to the indiscriminate violence arising from armed conflict; (b) if so, whether internal relocation within Iraq was available to the appellants; (c) if so, whether the intended route of return enabled them to access such a place in safety.

The UNHCR was given permission to intervene in the case, even though the case related to subsidiary protection as opposed to asylum matters: the Upper Tribunal interpreted the meaning of ‘asylum case’ in Rule 9(5) Tribunal Procedure (Upper Tribunal) Rules 2008 purposively to include subsidiary protection cases in the light of developments in protection law from the EU (para. 25).

The judgment, which runs to over 80 pages, provides a detailed analysis of the consideration of the level of violence in Iraq. This article does not aim to provide a detailed summary of the case, but to highlight the most pertinent points.

The relevant terms of the Qualification Directive read as follows:

Art 2

(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.

Art 15

Serious harm consists of

a)     death penalty or execution; or

b)     torture or inhuman or degrading treatment 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”.

The Upper Tribunal was asked to determine whether the appellants were entitled to subsidiary protection under Article 15(c) as interpreted by the ECJ in Elgafaji C-465/07 (17 February 2009) and the Court of Appeal in QD (Iraq) and Another v SSHD [2009] EWCA Civ 620 and HH and Others (Somalia) [2010] EWCA Civ 426.b

After citing the relevant provisions from the Directive (above), the Upper Tribunal analysed the recent European and domestic case law on Article 15(c) and summarised the precedents that were binding upon them. They focused in particular on the Court of Appeal case of QD (Iraq) and Another v SSHD, which followed the ECJ case of Elgafaji v Staatssecretaris van Justitie (Case C-465/07) and disapproved the construction of Article 15(c) adopted by the AIT in KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023:

66.  It is plain from QD at [18]) that in its conclusions in KH at [206] to [209] the AIT’s misconception that international humanitarian law (IHL) should drive the construction of the kind of harm identified in Article 15 led it to read the terms “indiscriminate violence” and “life or person” too narrowly and to set the threshold of risk too high. Our task is to revisit the evidence that is now available as to risk to civilians in the light of the broader approach identified in QD: “to locate the evidence within a different legal paradigm and reach a fact sensitive fresh conclusion”.

67.  We identify the following passages of the case-law binding on us as particularly apposite in the identification of the test for  Article 15 (c) protection in the present case:

1. “The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard (QD at [21]).
2. The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom (Elgafaji at [33]-[36]; QD at [20], [35]); HH and Others) at [31]).
3. It is concerned with “‘threat .. to a civilian’s life or person’ rather than to specific acts of violence .. the threat is inherent in a general situation of  .. armed conflict…The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances” (Elgafaji [34]).
4. The Article is intended to cover the “real risks and real threats presented by the kinds of endemic acts of indiscriminate violence – the placing of car bombs in market places; snipers firing methodically at people in the streets  – which have come to disfigure the modern world”. It is concerned with “serious threats of real harm” (QD at [27] and [31]).
5. “Individual must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian …would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat” (Elgafaji [35]).
6. “The more the applicant is able to show that he is specifically affected by reason of factors  particular to his personal circumstances, the lower the level of indiscriminate violence required” (Elgafaji [39]).
7. A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. “The risk of random injury or death which indiscriminate violence carries is the converse of consistency” (QD at [32]).
8. There is no requirement that the armed conflict itself must be exceptional but there must be “an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ” and this will self evidently not characterise every such situation (QD at [37]).
9. “The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction” (QD at [35]).
10. ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise (QD [37]).”

68.  In the light of the above, and the circumstances of each of these appellants we pose to ourselves the question identified in Elgafaji at [43], namely, does:

“the degree of indiscriminate violence characterising the armed conflict taking place… (reach) such a high level that substantial grounds are shown for believing that any civilian, returned to the relevant country or, as the case may be, to the relevant region, would solely on account of his presence on the territory or that country or region , face a real risk of being subject to that threat ?”

The Upper Tribunal then considered whether indiscriminate violence, as opposed to targeted attacks, should fall within or outside the ambit of Article 15(c). It concluded that, following Elgafaji and QD, in situations of armed conflict in which civilians are affected by the fighting, the approach to 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 (paras 73 to 83 and 98).

The Upper Tribunal then went on to hold that the degree of indiscriminate violence characterising the current conflict was not at such a high level that substantial grounds had 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. While it was likely that Article 15(c) would have been engaged in some parts of Iraq in 2006/7, when the figures for civilian deaths were approximately 20,000, the level of violence had decreased substantially such that the number of civilian deaths in 2009 was approximately 3,000-4,600(para. 255); as such, Article 15(c) no longer applied. Further, even if the levels of violence were such as to engage Article 15(c), internal relocation was a reasonable means of achieving safety.

The Upper Tribunal, whose assessment is to be found from para.233 onwards, also summarised its conclusions at para. 278:

i.         Although Iraq is still a “weak state” afflicted by many problems, the GoI 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 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 GoI 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.”

As to para 278(vi) above regarding allegations of mistreatment by Iraqi who were forcibly returned to Iraq, while some concern was expressed regarding the length of detention in Iraq on return and the condition of the detention facilities, the Upper Tribunal did not consider that this demonstrated that enforced Iraqi returnees were likely to experience ill-treatment in the course of the returns process (para. 270).

Case Management Guidelines for Country Guidance cases

The appeals almost did not take place. A few days before the hearing one of the legal parties sought to withdraw their appeal due to an unfavourable expert report, which meant that they could no longer claim public funds as the prospects of success were lower than 50%. Also, several of the appellants withdrew instructions. However, the Upper Tribunal strongly criticising the handling of the case by the appellants’ representatives, and stated that “the present appeals had long been designated to give guidance on circumstances where hundreds of case before the Tribunal and the higher courts have been stayed awaiting a judicial assessment of the risk in Iraq applying Article 15(c)”.

It was therefore in the public interest to proceed with the appeals, even though the appellants were not represented. The Upper Tribunal then provided a list of directions that should be used for the case management of country guidance cases in the future so as to prevent a repetition of the situation (see para. 52).

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