AA (Iraq) v Secretary of State for the Home Department

This is an application for permission to appeal on the part of AA. He is a national of Iraq. He was born on 3 September 1991 and is Kurdish. He claims to come from Dubis in the Kirkuk governorate where he lived for all but 5 years of his life before he came to the UK.

He entered the UK unlawfully in January 2009 (aged 17) and immediately claimed asylum. That claim was refused on 18 June 2009 and his appeal against that decision was dismissed on 8 September 2009. Reconsideration of the decision was refused on 29 September 2009. On 27 January 2010 Burnett J, as he then was, ordered a reconsideration. On 23 June 2010 the Immigration and Asylum Chamber of the Upper Tribunal set aside the determination of the First-tier Tribunal (“FtT”). The appeal was reheard by the Upper Tribunal on 22 February 2011. In a determination of 1 April 2011 Designated Immigration Judge Wynne dismissed his appeal.

The basis of AA’s asylum appeal was that he feared ill treatment on account of his father’s alleged status as a former high-ranking member of the Ba’ath Party. He also said that his uncle was of a lesser rank in that party. He also relied on Article 15 (c) of the Qualification Directive. Judge Wynne had grave concerns as to his testimony and was not satisfied that he had shown that what he said about his father and uncle was correct and, even if it was, there was no evidence that they had faced any form of ill treatment. His asylum appeal therefore failed.

As regards his Article 15 (c) claim AA claimed that his remaining family had left Iraq for Syria and that he could not be relocated to the KRG. DJ Wynne rejected that submission as well.

It is unnecessary to set out the detail of the progress of his application for permission to appeal. The upshot was that his appeal came to be conceded by the Secretary of State and his case was remitted to the Upper Tribunal which listed the appeal for Country Guidance on the issue of the application of Article 15 (c) of the Qualification Directive in relation to the removal of Iraqi nationals. The Upper Tribunal promulgated its determination on 30 October 2015, [2015] UKUT 544 (IAC), and gave detailed guidance. The upshot was that his case was remitted to the FtT for further fact finding. It is from that decision that AA seeks permission to appeal.

Someone returning to Iraq needs either a passport, current or expired, or a laissez passer. If he has none of these he will be refused entry. In the light of that fact the Secretary of State does not return persons who do not possess any of those documents. In addition, if a person is to have access to any form of assistance from the Iraqi State in relation to employment, education, housing and medical treatment he needs a Civil Status Identity Document (“CSID”).

The position is set out in section B of the Country Guidance, given by the Upper Tribunal in the present case, which reads (bold added):

In relation to AA the Upper Tribunal held that he would face an Article 15 (c) risk if he were to return to Kirkuk from which he came. The Secretary of State had confirmed that AA would be returned to Baghdad City. There was no evidence that AA had access to a current or expired Iraqi passport or a laissez passer so that he would not be returnable until he had been able to supply sufficient documentation to the Iraqi Embassy in London to enable it to provide him with a passport or a laissez passer, which would only occur if he could provide a copy of a CSID or Nationality Certificate or a photocopy of a previous Iraqi passport and a police report noting that it had been lost or stolen. Accordingly his return was not currently feasible.

In those circumstances, so the UT held, it could be said that it was not necessary to hypothesize any risk to him upon his return to Iraq. However, there were cases where it would be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation. An applicant should not be precluded from pursuing a claim to international protection in circumstances where the asserted risk of harm was not, or was not solely, based on factors such as lack of documentation that currently rendered a person’s actual return unfeasible. The example given was that of Jewish persons and Nazi Germany. It would, the Upper Tribunal held, subvert the purpose of the Convention to deny refugee status on the basis that, regardless of what might happen to the appellants on return to Germany because they were Jewish, they could not in practice be returned for want of documentation or the mere refusal of Germany to admit Jews.

In reaching its decision the Upper Tribunal relied on the decision of this Court in HF (Iraq) v SSHD [2013] EWCA Civ 1276. In that case - an appeal from a previous Country Guidance case on the application of Article 15 (c) – the court was concerned with a case where it was claimed that, if the appellant arrived in Iraq without a passport or a laissez passer, there was a risk that he would be detained and subject to mistreatment coming within Article 3.

In HF the Upper Tribunal had declined to consider whether the appellant would be at risk of ill treatment in such circumstances. It had done so on the footing that the issue was purely academic. If the person concerned had the necessary documentation, he would not be at risk. If he did not have it, he would not be returned.

On appeal that analysis was submitted to be inconsistent with the decision of the Court of Appeal in JI v SSHD [2013] EWCA Civ 279. In that case the Special Immigration Appeal Commission (“SIAC”) had decided that the Secretary of State was acting lawfully in deciding that the appellant should be deported to Ethiopia. The Ethiopians had given certain assurances; but the SIAC was concerned as to whether the Ethiopian Human Rights Commission could effectively monitor and report on any ill treatment carried out by junior officials and had left it to the Secretary of State to determine whether and when the necessary monitoring capability had been achieved and to give the appellant 5 days’ notice before deporting him to allow for an application for judicial review.

That was held by this court to be unlawful. The SIAC could not simply leave it to the Secretary of State to determine when it would be safe for JI to return. That should be decided by the court on the hypothetical basis of a return at the time of the hearing. It was submitted in HF that the appellants were entitled to have their position determined rather than that they should be left in limbo not least because that determination affected their status [96].

Lord Justice Elias said this:

The ratio of that decision may be said to be twofold:

In the present case, as the Tribunal has found, it is not presently possible to return AA because he does not have access to a current or expired Iraqi passport or a laissez passer. That may remain the position for some time. In those circumstances, as Mr Blundell on behalf of the Secretary of State submits, the Tribunal is simply under no obligation to consider whether AA had a CSID or whether, if he was returned he would be able to obtain one before his funds ran out. The Secretary of State accepted that a person who was returned to Iraq without a CSID and was unable to replace it would face a real risk of Article 3 ill-treatment; and the Tribunal accepted that that was the position, subject to the qualification that there would be some returnees who because of family and friends in Bagdad or some other support mechanism would not be at such risk. But, since AA could not be returned, the question whether he had a CSID or could obtain one simply did not arise.

On behalf of AA Mr Bazini submits that the position is not as clear cut as that summary suggests. In asylum and humanitarian protection cases the decision maker is concerned with the risks that the applicant will face if returned to the country from which he came. These risks may take many forms and it is the job of the decision maker to evaluate them. This is what had been done in HF. The Tribunal had rejected the appellant’s case that he would, if returned, face risks other than those attributable to lack of a passport. What was then said was that because he had neither passport nor laissez passer (in the securing of which he declined to cooperate) he would be at risk of Article 3 treatment if he returned to Iraq without any of them. By contrast in the present case AA has been found to be at risk in his home area; is not relying on an impediment that he has created in order to establish a risk; probably cannot get a CSID because ISIS is in his home area; and is not yet an unsuccessful applicant.

The Upper Tribunal and the Court of Appeal rejected the appellant’s case on the basis that it was not necessary to answer a purely hypothetical question. But the context in which it did so was (a) that the Upper Tribunal had already considered the risk factors other than the risk, if any, attributable to return without a passport; and (b) the latter risk was in truth not a risk at all and irrelevant. If the applicant could not be returned because he had no passport/laissez passer he would suffer no harm. If he had a passport/laissez passer so that he could be returned, he would suffer no harm on account of the lack of one. Lack of a passport was thus an impediment to return, but not something that gave rise to a risk to safety.

By contrast, want of a CSID has a double effect. It may make it more difficult to obtain a passport since passports are often, but not invariably, obtained by production of a CSID. Its absence is, in that sense, an impediment to return. But its absence is also a risk to safety since, without it, an applicant is likely, unless he has third party support, to find himself destitute.

In this connection Mr Bazini places reliance on the earlier decision of this court in HH (Somalia) v SSHD [2010] EWCA Civ 426. In that case the court had to consider the issue of the safety of the returnee when journeying from the point of arrival to a place of safety. One of the issues was:

In AM’s case (one of the 4 linked cases in HH) the AIT had concluded that, notwithstanding the dangerous situation in Somalia they were not empowered to take into account on AM’s appeal the risks he faced in making the journey from Mogadishu, to which he would be returned, to his home area of Jowhar, 100 km to the north where he could expect to be safe [41].

The Court held [58] that in any case in which it could be shown either directly or by implication what route and method of return was envisaged the AIT was required by law to consider and determine any challenge to the safety of that route or method; and that the tribunal, which knew that any return would be to Mogadishu and that AM’s home was in Jowhar, was under an obligation to come to a conclusion about the safety of his return thither [63].

In another linked case of J the appeal was allowed on the basis that the deputy judge was wrong to decide that there was no fresh claim. But the Court of Appeal also considered a submission on the part of the Secretary of State that safety of the route of return did not form any part of the qualifying process. The Court decided, expressly obiter [80], and provisionally [84], that it was the intention of the Qualification Directive that all matters relating to safety on return should form part of the decision on entitlement. Whatever the expression “technical obstacles” in Article 8 paragraph 3 meant they did not signify a requirement to ignore risks to life or limb once the returnee was back in his country of origin [83].

Lord Justice Sedley said this:

Mr Bazini submits that the decisions in HF and HH are reconcilable. Issues of safety upon return require to be decided and cannot or should not be postponed until the Secretary of State is in a position to give removal directions. If a return is not feasible but, even if it was, the returnee faces a risk on return, the decision maker should allow a humanitarian protection claim regardless of any technical impediment to return. If a return is not feasible but, if it was, there would be no risk on return, the decision maker should not allow the protection claim on the sole basis that there is a technical impediment to return.

There is, he submits, no contradiction between the two cases. Both of them support the proposition that it is only consideration of technical obstacles to return that may legitimately be deferred to the point at which removal directions are being made or considered. In the meantime, all matters relating to safety on return should form part of the decision on entitlement. The fact that an applicant has no CSID and no prospect of getting one is not merely or solely a technical impediment to return – it is in fact possible to return without a CSID - but a source of risk if he does so.

There is also, he submits, an illogicality in the Tribunal’s approach. It recognised that, since AA could not currently be returned, “it could be said to be unnecessary to hypothesise any risk to him upon his return”. (Such a proposition would indeed be consistent with what Elias LJ said in HF: see [15](a) above). But in fact the Tribunal decided that an applicant should not be precluded from pursuing a claim to international protection where the asserted risk of harm was not (or not solely) based on factors (such as lack of documentation) that currently rendered a person’s actual return unfeasible. It gave the example of Jews and Nazi Germany and went on to remit the matter to the FtT to make the further necessary findings. One of the matters of factual dispute was as to AA’s claimed inability to speak Arabic, the whereabouts of his family members and possibly his ability to enter and remain in the IKR.

The illogicality is said to be this. One approach is to say that, if someone cannot be returned, it is inappropriate to hypothesize about what risk there will be to his safety if he is returned, not least because circumstances (whether personal to him or applicable in the country of intended return) may change by the time he can be returned. Another is to say that all matters relating to safety on return should be decided without delay. What is illogical is to decide all matters relating to safety with one exception, namely questions relating to whether, if returned, the appellant will have a CSID or will be able to obtain one and the risk of destitution if he cannot.

I was originally of the view that permission should be refused on the ground that the matter was determined by HF and that the decision in HH did not lead to any different conclusion because (a) it was obiter; (b) it concerned safety on passage from port of arrival to place of safety rather than an impediment to return; and (c) it was overtaken by HF.

I have, however, come to the conclusion that AA should be given permission to appeal on ground 1, namely whether as part of an assessment as to whether an individual required international protection a decision maker is (a) bound to consider whether the individual concerned had in his possession or could obtain a CSID either before he returned to Iraq or within a short period of returning there, failing which (in the absence of an alternative means of support) his circumstances were likely to amount to a breach of Article 3 and (b) not entitled to postpone any decision on that question if it was not feasible from him to be returned to Iraq.

I have reached that view because it seems to me arguable (with a realistic prospect of success) that the issue is not necessarily determined by HF; and that HH, which does not appear to have been cited in HF, may be said to point to a different result in the circumstances of this case (which are not the same as those in HF). The question is an important one of principle or practice applicable to many different individuals and merits consideration as a second appeal. The answer may be that a decision-maker should leave out of consideration any risk of harm attributable to want of a CSID because the fact that its absence creates a risk to safety as well as an impediment to return should not mean that that risk has to be considered when return is not possible. But it does not seem to me that that result is necessarily mandated by HF, which concerned only an identity document whose absence was an impediment to return, and may be contra-indicated by HH. In addition it is desirable for the court to address the arguable illogicality to which I referred in [28] above, which did not arise for consideration in HF.

The second ground relied on is that the Upper Tribunal is said to have reached an irrational and insufficiently reasoned decision that the level of indiscriminate violence in Baghdad City did not meet the level which was necessary to engage Article 15 (c).

This was quintessentially a question of fact for the Upper Tribunal. It is not suggested that the Tribunal misdirected itself as to the test to be applied. Criticism is made of the Tribunal’s reliance on the low levels of displacement from Baghdad as opposed to that in the contested territories. In Baghdad the level was 60,000 with the majority, 40,000, remaining within the governorate. By contrast there was evidence [105] that in March 2015 Baghdad was hosting 325,692 individuals. That was plainly relevant to any assessment of the level of violence in Baghdad. The Tribunal was in any event cautious about giving these figures undue prominence in assessment [129].

It is then said that the Tribunal failed to address the fact that daily life continued in the contested areas as well as in Baghdad. I do not regard this as taking AA anywhere. The Secretary of State conceded that Article 15 (c) was met in those areas [68] and [75] but the Tribunal found that the nature of the conflict and the circumstances of daily life were different in both.

It was next said that the Upper Tribunal had vastly underestimated the fear instilled in the general populace; and that to rely on the fact that the casualty figures were only a small proportion of the population of the city ignored the chilling fear that they would inflict on the wider population. But the weight to be given to such considerations was for the Tribunal; and they plainly took into account the effect of general fear as appears from [131].

Ground 3 is that the Tribunal was wrong to find that the Kurds in Baghdad were not an enhanced risk category. This was, again, a finding of fact. The Tribunal reached this conclusion because [135] nothing had led them to conclude that that was so; and the evidence did not disclose a significant number of attacks on Kurds in Baghdad nor was there any evidence of recent displacement.

There was expert evidence that the only Kurds of note left were Fadi Kurds (Shia) not affiliated to northern [Sunni] Kurds. There were few other Kurds in Baghdad and those that there were were mainly in the international zone. There was some evidence of death threats warning members of the small Kurdish community to leave. The Tribunal held that the evidence did not disclose a significant number of attacks on Kurds in Bagdad nor was there any evidence of actual recent displacement by Kurds out of Baghdad. The evidence did not establish to their satisfaction that Kurds or those who had no connection with Baghdad prior to moving there were at an enhanced risk. This was a factual conclusion to which they were entitled to come.

The last ground sought to be advanced is that the Tribunal engaged in impermissible speculation when it concluded that it was not beyond the bounds of reasonableness to infer from the significant percentage of internally displaced person who reside in rented accommodation in Baghdad that there were job opportunities [198]. The statistic was that out of 177,906 such persons 167,328 lived in rented accommodation. The Tribunal was wholly entitled to reach the inference that they did.

I would, therefore, refuse permission to appeal on grounds 2 - 4. I would allow it on ground 1. It is, however, necessary for ground 1 to be clearly formulated. The summary I have set out in [30] is derived from the skeleton argument of counsel with additions of my own. The ground as set out in the current version of the grounds is very loosely worded; it is contained in two paragraphs and is not the same formulation as in the skeleton argument. I would invite Counsel to formulate ground 1 (if appropriate adopting my own formulation) so that the ground can be attached to the order of the court.

I agree.