AA v The Secretary of State for the Home Department

Upper Tribunal

(Immigration and Asylum Chamber)

AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC)

THE IMMIGRATION ACTS

Heard at Field House, London	Decision Promulgated
On 18 and 19 May 2015	On 30 October 2015

Before

Upper Tribunal Judge Peter Lane

Upper Tribunal Judge O’Connor

Upper Tribunal Judge Finch

Between

AA

(Anonymity order made)

Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr D. Bazini (Counsel) and Mr C. Cole (Solicitor) instructed by Parker Rhodes Hickmotts Solicitors

For the Respondent: Mr D. Blundell (Counsel) instructed by the Government Legal Department

COUNTRY GUIDANCE

Note: References to Iraq herein are to the territory of Iraq excluding the autonomous Iraqi Kurdish Region (“IKR”) unless otherwise stated.

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

1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called “contested areas”, comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta’min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.

2. The degree of armed conflict in certain parts of the “Baghdad Belts” (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.

3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).

4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.

B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)

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

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

7. In the light of the Court of Appeal’s judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P’s return is not currently feasible, given what is known about the state of P’s documentation.

C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE

8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.

9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).

10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.

11. Where P’s return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P’s return have been exhausted, it is reasonably likely that P will still have no CSID.

12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P’s home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P’s ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P’s information (and that of P’s family). P’s ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.

13. P’s ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P’s Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.

D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)

14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.

15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:

(a) whether P has a CSID or will be able to obtain one (see Part C above);

(b) whether P can speak Arabic (those who cannot are less likely to find employment);

(c) whether P has family members or friends in Baghdad able to accommodate him;

(d) whether P is a lone female (women face greater difficulties than men in finding employment);

(e) whether P can find a sponsor to access a hotel room or rent accommodation;

(f) whether P is from a minority community;

(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.

16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).

E. IRAQI KURDISH REGION

17. The Respondent will only return P to the IKR if P originates from the IKR and P’s identity has been ‘pre-cleared’ with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.

18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.

19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.

20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a)the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b)the likelihood of K’s securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.

21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.

F. EXISTING COUNTRY GUIDANCE DECISIONS

22. This decision replaces all existing country guidance on Iraq

TABLE OF CONTENTS

	Paragraph numbers
Glossary
Introduction	1-5
Evidence – A Summary
• Written evidence of Dr Fatah • Oral evidence of Dr Fatah • Evidence from Amnesty International • Home Office Country Information Guidance • UNHCR’s position paper	6-11 12-29 30-35 36-43 44
Existing Country Guidance	45-49
The submissions – A Summary
• Appellant’s skeleton argument • Appellant’s oral submissions • Respondent’s skeleton argument • Respondent’s oral submissions	51-58 59-67 68-74 75-82
Art 15(c) of the Qualification Directive
• Legal Framework • Decision and Conclusions - The Contested Areas - Babil Governorate - IKR - The Southern Governorates - Baghdad city - The Baghdad Belts	83-86 87-100 101-106 107-111 112-113 114-117 118-137 138-146
Internal relocation
• Legal Framework • Places of return • Relocation to Baghdad - Obtaining a CSID whilst in the UK - Obtaining a CSID in Iraq - Conditions in Baghdad	147-149 150 151-172 173-177 178-187 188-203
Country Guidance	204
Conclusion of Appellant’s appeal	205-210

Documentary evidence before the Upper Tribunal

Appendix A

GLOSSARY

CSID - Civil Status Identity Document

DTM - Migration Displacement Tracking

GoI - Government of Iraq

IBC - Iraq Body Count

IDP - Internally Displaced Person

IED - Improvised Explosive Device

IKR - Iraqi Kurdish Region

INC - Iraqi Nationality Certificate

IOM - International Organisation for Migration

IRC - International Rescue Committee

ISF - Iraqi Security Forces

ISIL - Islamic State of Iraq and the Levant

MODM - Ministry of Displacement and Migration

MoI - Ministry of Interior

NRC - Norwegian Refugee Council

PACS - Protection and Assistance Centres

PARCS - Protection, Assistance and Reintegration Centres

PDS - Public Distribution System

UNAMI - United Nations Assistance Mission in Iraq

USAID - United States Agency for International Development

VARRP - Voluntary Assisted Return and Reintegration Programme

Anonymity

Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) an Anonymity Order is made. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.

DECISION AND REASONS

Article 15(c) of the Qualification Directive

Legal Framework

83. Article 15 of the Directive provides as follows:

“Serious harm consists of

(a) death penalty or execution;

(b) torture or inhuman or degrading treatment or punishment of an Applicant in the country of origin; and

(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.”

84. Article 15 is applied by Article 2(e) of the Directive which defines a person eligible for subsidiary protection as:

“… 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 … 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 or herself of the protection of the country.”

85. Paragraph 339C of the Immigration Rules HC 395 (“the Immigration Rules”) gives effect to Article 15(c) in domestic law, providing as follows:

“339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, unwilling to avail himself of the protection of that country; and

(iv) he is not excluded from a grant of humanitarian protection.

Serious harm consists of:

(i) the death penalty of execution;

(ii) unlawful killing;

(iii) torture or inhumane or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international and internal armed conflict.”

86. The Court of Justice of the European Union (“CJEU”), the Court of Appeal and the Upper Tribunal have given extensive consideration to Article 15(c) of the Directive and we gratefully adopt the summary of learning to be derived therefrom set out by the Upper Tribunal in its recent country guidance case on returns to Somalia – MOJ & Ors (return to Mogadishu) Somalia CG [2014] UKUT 00442 (IAC) at [30] – [33]:

“30. …There are now two decisions of the Court of Justice of the European Union (CJEU) which deal with Article 15(c): Case (C-465/07) Elgafaji v Staatssecretaris van Justitie [2009] 1 WLR 2100 , and Case (C-285/12) Diakite v Commissaire general aux refugies [2014] WLR(D) 37… (Footnote: ⁴) ;

31. In Elgafaji, the ECJ construed Article 15(c) as dealing with a more general risk of harm than that covered by 15(a) and (b).

The essence of the Court’s ruling in Elgafaji was:

’43. Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred reaches such a high level that substantial grounds are shown for believing that a 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 of that country or region, face a real risk of being subject to that threat.’

32. In Diakite, the Court, having provided a definition of internal armed conflict at [28], reaffirmed in [30] its view that for civilians as such to qualify for protection under Article 15(c) they would need to demonstrate that indiscriminate violence was at a high level:

’30. Furthermore, it should be borne in mind that the existence of an internal armed conflict can be a cause for granting subsidiary protection only where confrontations between a State’s armed forces and one or more armed groups or between two or more armed groups are exceptionally considered to create a serious and individual threat to the life or person of an applicant for subsidiary protection for the purposes of Article 15(c) of Directive 2004/83 because the degree of indiscriminate violence which characterises those confrontations reaches such a high level that substantial grounds are shown for believing that a civilian, if returned to the relevant country or, as the case may be, to the relevant region, would – solely on account of his presence in the territory of that country or region – face a real risk of being subject to that threat (see, to that effect, Elgafaji, paragraph 43).’

At [31] the Court reaffirmed the view it expressed in Elgafaji at [39] that Article 15(c) also contains (what UNHCR has termed) a “sliding scale” such that “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 for him to be eligible for subsidiary protection.”  The Court thereby recognised that a person may still be accorded protection even when the general level of violence is not very high if they are able to show that there are specific reasons, over and above them being mere civilians, for being affected by the indiscriminate violence.  In this way the Article 15(c) inquiry is two-pronged: (a) it asks whether the level of violence is so high that there is a general risk to all civilians; (b) it asks that even if there is not such a general risk, there is a specific risk based on the “sliding-scale” notion.

33. In the United Kingdom, the principal decision of the higher courts dealing with Article 15(c) remains QD (Iraq) v Secretary of State for the Home Department [2011] 1 WLR 689 . QD helpfully explains and indicates how Elgafaji should be applied. In addition we have the guidance set out in HM and others (Article 15(c) Iraq CG [2012] UKUT 409 (IAC). At [42]-[45] of HM (Iraq) the Tribunal stated that:

 ‘42. We recognise that the threat to life or person of an individual need not come directly from armed conflict.  It will suffice that the result of such conflict is a breakdown of law and order which has the effect of creating the necessary risk.  It is obvious that the risk is most likely to result from indiscriminate bombings or shootings.  These can properly be regarded as indiscriminate in the sense that, albeit they may have specific or general targets, they inevitably expose the ordinary civilian who happens to be at the scene to what has been described in argument as collateral damage.  By specific targets, we refer to individuals or gatherings of individuals such as army or police officers. The means adopted may be bombs, which can affect others besides the target, or shootings, which produce a lesser but nonetheless real risk of collateral damage.  By general targets we refer to more indiscriminate attacks on, for example, Sunnis or Shi’as or vice versa.  Such attacks can involve explosions of bombs in crowded places such as markets or where religious processions or gatherings are taking place.

43. 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 civilian of a real risk of serious harm in the country or in a particular region.  When we refer below to the “Article 15(c) threshold”, this is what we have in mind. Thus it is necessary to assess whether the level of violence is such as to meet the test…

44. In HM1 at [73] the Tribunal decided that an attempt to distinguish between a real risk of targeted and incidental killing of civilians during armed conflict was not a helpful exercise.  We agree, but in assessing whether the risk reaches the level required by the CJEU, focus on the evidence about the numbers of civilians killed or wounded is obviously of prime importance. Thus we have been told that each death can be multiplied up to seven times when considering injuries to bystanders.  This is somewhat speculative and it must be obvious that the risk of what has been called collateral damage will differ depending on the nature of the killing.  A bomb is likely to cause far greater “collateral damage” than an assassination by shooting.  But the incidence and numbers of death are a helpful starting point.

45. The harm in question must be serious enough to merit medical treatment.  It is not limited to physical harm and can include serious mental harm such as, for example, post-traumatic stress disorder.  We repeat and adopt what the Tribunal said in HM1 at [80]:

“In our judgment the nexus between the generalised armed conflict and the indiscriminate violence posing a real risk to life or person is met when the intensity of the conflict involves means of combat (whether permissible under the laws of war or not) that seriously endanger non-combatants as well as result in such a general breakdown of law and order as to permit anarchy and criminality occasioning the serious harm referred to in the Directive.  Such violence is indiscriminate in effect even if not necessarily in aim.  As the French Conseil d’Etat observed in Baskarathas , it is not necessary for the threat to life or person to derive from protagonists in the armed conflict in question: it can simply be a product of the breakdown of law and order.” ‘ “

Article 15(c) - Discussion and Conclusions

87. As identified above, the instant appeal was remitted by the Court of Appeal to the Upper Tribunal for reconsideration under Article 15(c) of the Qualification Directive. The burden of proof rests on the Appellant, albeit the standard of proof is low.

88. Given that this is a Country Guidance decision, and is restricted to consideration of Article 15(c), it is prudent first to reiterate the following observation made by this Tribunal in HM2 :

“260. Our primary focus in these appeals is strictly confined to Article 15(c) of the Qualification Directive, and a discrete issue relating to risk on return to BIAP. However, since this case deals with the current situation in Iraq it will inevitably be a reference point for decision-makers deciding asylum-related appeals brought by Iraqis that are not confined to the Article 15(c) issue. In this context we would reiterate the observations made recently by the Tribunal in AK (Afghanistan ) at [154]-[156] that in the general run of appeals decision-makers should ordinarily deal first with the issue of refugee eligibility and only deal with the issue of subsidiary protection (including Article 15(c)) second. They should not deal with Article 3 until last.”

89. Both parties accepted that we should take an inclusive approach to our consideration of Article 15(c). This was the approach adopted by the Tribunal in both HM1 and HM2 as well as in numerous other country guidance decisions of this Tribunal. We remind ourselves that such an approach requires an analysis of the violence that is both qualitative and quantitative and is not to be restricted to a purely quantitative analysis of the number of civilian deaths and injuries in Iraq, or in any particular governorate within Iraq. The list of factors relevant to such an analysis is non-exhaustive but includes within them the conduct, and relevant strength, of the parties to the conflict (see, for example, AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 at [163]), the number of civilian deaths and injuries; including psychological injuries caused by the conflict, the level of displacement and the geographical scope of the conflict.

90. Turning to the evidence, we found Dr Fatah to be an impressive and authoritative witness. He demonstrated extensive knowledge of the circumstances in Iraq and sought, wherever possible, to provide multiple sources for the evidence he provided, which was to a large extent consistent with the other materials placed before us. When giving oral evidence he clearly identified those parts of his evidence which called for speculation on his part. In all the circumstances we attach significant weight to Dr Fatah’s evidence.

91. The landscape in Iraq has undoubtedly changed since HM2 was heard in October 2012, with the rise of the ISIL - the main insurgent group now operating in the country. This group was established by the Jordanian national Abu Musab al-Zarqawi in 1999 – originally being known as Jama'at al-Tawhid wal-Jihad . In October 2004 it became known as Al-Qaeda in Iraq and was identified as such by the Tribunal in HM2 .

92. In April 2013 its current leader, Abu Bakr al-Baghdadi, changed the group’s name to Al-Dawla Al-Islamiya fi al-Iraq wa al-Sham – the “Islamic State of Iraq and al-Sham”; al-Sham referring to an undefined region around Syria which translates into English as “The Levant”- thus the use of the acronym ISIL (Footnote: ⁵) .

93. In June 2014, after a major military offensive, ISIL seized control of the northern city of Mosul and shortly thereafter declared the existence of an Islamic State across parts of northern Iraq and Syria.

94. The UNHCR, in its October 2014 report “UNHCR Positions on Returns to Iraq” summarised the situation thus:

“Iraq has experienced a new surge in violence between Iraqi security forces (ISF) and Kurdish forces (Peshmerga) on the one hand and the group “Islamic State of Iraq and Al-Sham” (hereafter ISIS), which operates both in Iraq and Syria, and affiliated armed groups on the other hand. Civilians are killed and wounded every day as a result of this surge of violence, including suicide attacks and car bombs, shelling, airstrikes, and executions. As a result of advances by ISIS, the Government of Iraq is reported to have lost full or partial control over considerable parts of the country’s territory, particularly in Al-Anbar, Ninewa, Salah Al-Din, Kirkuk and Diyala governorates. Although the ISF and Kurdish forces, supported by US airstrikes, have recently regained control over some localities, mostly along the internal boundaries with the Kurdistan Region, overall frontlines remain fluid. The conflict, which re-escalated in Al Anbar governorate in January 2014 and since then spread to other governorates, has been labelled as a non-international armed conflict. Casualties so far in 2014 represent the highest total since the height of sectarian conflict in 2006-2007.”

95. The objectives of ISIL, so far as they can be ascertained, are threefold:

(a) To permanently break down political boundaries in Iraq, Syria and the surrounding region;

(b) To establish the Islamic Emirate by controlling terrain across Syria and Iraq, governing within the terrain and defending its external borders; and,

(c) To expand the territory of the Emirate and connect it to the wider Muslim community.

96. ISIL is said to have significant financial resources, with funding from individuals in Arab Gulf states, together with income from oil fields it controls and from smuggling and extortion (BBC, 30 June 2014)

97. Dr Fatah observes that in addition to ISIL there are four other anti-GoI groups operating in Iraq; the Jaysh Rijal al-Tariq al-Naqshabandi (JRTN) movement, the Mujahideen Shura Council, the Revolutionary tribes and Ansar al-Sunni . He also avers that there are eight pro-GoI Shia militia groups and four pro-GoI Sunni militia groups operating in Iraq – as well as a number of foreign forces.

98. The evidence provides a range of figures for deaths and casualties in Iraq during 2014 and early 2015. Before summarising those statistics we sound the same note of caution as was sounded in both HM1 [117] and HM2 [107] in seeking to rely on any particular survey:

“Because the estimates of Iraqi casualties contained in this report are based on varying time periods and have been created using different methodologies, readers should exercise caution when using them and should look to them as guideposts rather than as statements of fact.”

99. Iraq Body Count, whose figures Dr Fatah relies upon and were found by the Tribunal in HM2 to be most reliable because of their multiple sourcing [110], record that 17,049 civilians were killed in Iraq during 2014, this being almost double the figure for 2013, which itself was roughly double the figure recorded for 2012. As of 18 February 2015, Iraq Body Count (IBC) had recorded 2,245 civilians deaths in 2015. According to IBC, civilian deaths peaked in 2006 and 2007 at 29400 and 25968 deaths respectively.

100. The GoI record 15,538 civilian deaths in 2014, the United Nations Assistance Mission in Iraq (UNAMI) record 12,282 such deaths (April 2015 CIG) or 10,187 (Dr Fatah’s first report) and Musings on Iraq record 17,098 deaths, both over the same period. The number of civilian casualties recorded by the same organisations ranged from 22,000 (GoI) to 26,590 (Musing on Iraq). IBC broke down its record of civilian deaths into three categories – 1,748 deaths caused by Iraqi airstrikes, 4,325 at the hands of ISIL and 10,858 deaths where it was not possible to establish which of the ‘actors’ were involved.

The Contested Areas - the governorates of Anbar, Diyala, Kirkuk (aka Ta’min), Ninewah and Salah Al-din

101. The contested area is formed of the governorates listed above to the north and west of Baghdad, excluding those in the IKR.

102. We need say little about the situation for ordinary civilians in the contested areas, given the concession made by the Respondent. It is enough for us to identify that the security situation in these areas remains volatile. Following its offensive in June 2014 ISIL took occupation of significant parts of these areas; however, the GoI and its allies subsequently retook a number or towns/areas within these governorates. Nevertheless, ISIL still holds control of key urban areas and on the day prior to the hearing of this appeal took occupation of the strategic town of Ramadi, in the Anbar governorate – 70 miles west of Baghdad.

103. Life in the areas controlled by ISIL is characterised by systematic and widespread acts of violence and gross violations of international humanitarian law and abuses of human rights. Among ISIL victims in areas under its control are those Sunni Muslims who refuse to live by its rules. In its attempts to gain increased occupation of the contested areas ISIL has directly targeted civilians and civilian infrastructures. Although figures for the civilian deaths and injuries in the contested areas have been put before us, we accept the rationality of Amnesty International’s view on such statistics i.e. that “it is difficult to establish the true scale of killings and abductions that ISIS have committed…Accurate casualty figures are very hard to come by for all areas of Iraq, owing to the nature of the conflict and the risks faced by investigators. ” Whilst we accept this is likely to be true country-wide, it must be particularly so within the areas of ISIL control; given the obvious difficulties of accessing the contested areas and thereafter risks in identifying and logging the security incidents.

104. In its May 2015 report Amnesty International record that after re-taking Tikrit from ISIL, Shia militias looted, killed and perpetrated sexual violence against the Sunni residents of the town; actions also reported by Agence France Press.

105. The volatility of the contested areas has led to there being a “massive flow of internal refugees” [Landinfo - February 2015] from these areas to Baghdad. According to the Home Office April 2015 CIG, the International Organisation for Migration Displacement Tracking Index (“DTM”) for March 2015 recorded Baghdad as hosting 325,692 displaced individuals. There was also displacement from the contested areas into the IKR.

106. Given the volatility of the situation in the contested areas, the number of displaced persons therefrom, the tactics of warfare used there by ISIL and the circumstances in the areas controlled by ISIL, we have no hesitation in endorsing the Respondent’s concession and conclude that a civilian with no distinguishing characteristics will, simply by virtue of his/her presence in a contested area, be at real risk of suffering harm of the type identified in Article 15(c) of the Qualification Directive.

Babil

107. Babil governorate is located directly to the South of Baghdad, sharing the extreme north of its border with Baghdad and Anbar governorates.

108. In paragraph 1.3.22 of its April 2015 Country Information and Guidance document: Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq the Home Office state that: “there has been a deterioration in the security situation in Babil governorate since 2012 and 2013 … In 2014 there was an average of 126 people killed per month” It continues in paragraph 1.3.23 by identifying that “the government maintains control over the majority of the governorate, including the northern part of Babil around Jurf Al-Sakhr, which was previously an ISIL strong-hold from which it launched attacks on the surrounding area and manufactured car bombs. By the end of 2014 ISIL’s presence in Jurf Al-Sakhr had been cleared, with insurgents routed further north. This military success had improved the security situation considerably. However, there remained a risk of further violence, both from renewed armed conflict and as a result of IEDs left behind by insurgents” .

109. At paragraph 1.3.25 it concluded that: “while levels of violence have increased in Babil compared to previous years, conditions have not deteriorated to the extent that a person returning there would face a breach of Article 15(c)” . However, it is added that: “while in general a return to Babil would not breach Article 15(c), decision makers must also consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at risk. Such factors include – but are not limited to – the person’s age, gender, health, ethnicity, religion, sect, disability and profession. Some persons, especially those who reside in areas where they are a minority, may face a heightened risk of indiscriminate violence” . At paragraph 1.3.27, the Home Office noted that “the security situation remains fluid” .

110. In his first report, of 27 February 2015, Dr Fatah observes that ISIL was ousted from its based in Jurf Al-Sakhr, in the north of the governorate, in October 2014. The majority of the fighting in Babil – and the casualties – occurred during the summer months of 2014 and that the province is now far quieter, although there remains a consistent level of violence. Dr Fatah’s later reports do not describe any change to his position in this regard. Statistics are provided by Dr Fatah identifying that in the first two weeks of February 2015 there were 20 security incidents in the governorate, in which 18 civilians were killed and 59 wounded. The population of Babil governorate, according to the Home Office is 1.8 million.

111. As evidenced by its previous operations in Jurf Al-Sakh, the north of Babil governorate is clearly viewed by ISIL as a strategically advantageous position, because of its proximity to Baghdad and its border with Anbar. Given this, it is important that decision makers, when faced with applicants from that province, carefully consider up-to-date information on the situation there. On the basis of the limited information put before us on the current situation in Babil governorate, which we have summarised above, we do not accept that it has been demonstrated that there presently exists an Article 15(c) risk there to an ordinary civilian; and neither does a person’s ethnicity, religion or sex, whether taken individually or cumulatively, enhance the level of risk there so as to engage Article 15(c). There is no evidence of very recent conflict between ISIL and state authorities in the north of the province, and the security incidents, deaths and injuries to civilians in the governorate from ‘security incidents’, whilst deplorable, is small in number when compared to the size of the governorates population.

Iraqi Kurdish Region (IKR) – Erbil, Sulaymaniyah and Dahuk

112. In Dr Fatah’s opinion the IKR “is virtually violence free, and only exceptional one offs disrupt this” . The most recent security incident in the IKR referred to in Dr Fatah’s evidence was a suicide car bomb outside the governorate office in Erbil on 19 November 2014, which killed six people, including the driver, and wounded dozens. Prior to that there was a bomb in Erbil on 29 September 2013, which also killed six people. The Home Office April 2015 CIG also makes reference to the November 2014 attack, but identifies there having been 10 deaths as a consequence. It concludes that the IKR is stable and has very low levels of violence.

113. The evidence before us does not establish that there is an Article 15(c) risk to an ordinary civilian in the IKR; and neither does a person’s ethnicity, religion or sex, whether taken individually or cumulatively, enhance the level of risk so as to engage Article 15(c).

The Southern Governorates – Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit

114. Dr Fatah identifies that security incidents in the southern governorates of Iraq are “rare” - with Thi-Qar, Missan, Qadissiya and Wassit being almost entirely free of violence for some years and the mainly Sunni governorate of Muthana being “basically empty”. There were more regular security incidents in Basra and Kerbala, although not on the scale of the incidents in other parts of Iraq. The evidence given by Dr Fatah in relation to the Southern governorates accords with that provided in the April 2015 CIG report at [1.3.29], which recalls the number of civilian fatalities in 2014 in Thi-Qar and Muthana as being eight and six respectively, Basra as having 128 such fatalities, and in Kerbala 200 fatalities. The combined population of the eight governorates is 6.7 million.

115. Our attention has not been drawn to any evidence contradicting that which we have summarised above and, as a consequence, we have no hesitation in concluding that the evidence before us does not disclose that there is a real risk of serious harm – as defined in Article 15(c) – for an ordinary civilian in any of the southern governorates; nor does a person’s ethnicity, religion or sex – whether taken of itself or cumulatively - increase the risk of serious harm to such person so as to engage Article 15(c).

116. Although we have found that Article 15(c) is not engaged for an ordinary civilian in the Southern governorates we are also required to consider issues of safety arising during the process of return to a person’s home area – this being part of the decision on status entitlement ( HH(Somalia) [2010] EWCA Civ 426 at [82-84]).

117. Iraqi nationals not originating from the IKR will be returned to Baghdad by the Respondent. Dr Fatah provides detailed evidence on the safety of road travel from Baghdad to the southern governorates in his second report stating at [103] that “There are no reports of such targeting by armed groups on civilians using roads from Baghdad to southern areas, or vice versa.” He does however provide evidence of a truck bombing on a water purification centre on the Umqasir – Safwan road in Basra in March 2015 and an explosive device attached to a car in northern Babil in February 2015. There are also a number of incidents of attacks on checkpoints in Baghdad. This evidence reflects evidence found elsewhere before us and does not lead us to conclude that there would be a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).

Baghdad City

118. Baghdad governorate consists of 10 districts, covers approximately 4500 square kilometres and has a population of between 6.6 and 7.1 million (the figure referred to in HM2 being that produced by the GoI of 7,055,200 - whereas the UN’s Joint Analysis Unit identifies the population of Baghdad governorate to be 6,696,596 as of 2013). The governorate is under the control of the Iraqi Security Forces, although Human Rights Watch wrote on 15 February 2015 that Shia militias were leading security operations in Baghdad.

119. Within the governorate, Baghdad city comprises nine districts and 89 neighbourhoods and is said to have a population of approximately 6.5 million ([199] of HM2 ). A US Congressional Research Service report of February 2015 referred to the population of Baghdad city as being 80% Shia, although the Landinfo report indicates that the percentage mix of Shia and Sunnis in Baghdad is not known. The sensitivity of this political subject led to the national census being deferred. Sadr City, a ‘Shia district’ within Baghdad city, is the centre for Moqtada al-Sadr and his followers and the area relies entirely on the Jaysh al Mahdi for its security. Sunni areas are largely to be found to the west of the city (Al Ghazaliya, Abu Ghraib and Al Jami’ah), although Al Doura, in southern Baghdad, is also reported to be a majority Sunni neighbourhood (USA Today – 13 July 2013) and there are mixed neighbourhoods, such as al Adel in the east of Baghdad and Karkh in the centre of the city. There is no identifiable Kurdish area in Baghdad city and Dr Fatah was unaware of the number of Kurds living in the city. Most violent activity within Baghdad is the responsibility of ISIL and Shia militia groups. ISIL pursues its campaign in Baghdad to undermine the stability of the security apparatus there – instilling fear within general populace and feeding off the global coverage of the incidents.

120. In his first report Dr Fatah refers to their having been 127 ‘incidents’ in Baghdad in the first three weeks of January 2015, killing 185 and injuring 500 persons. Another explosive device detonated in a market on 30 January, killing a further 18-20 people. He describes five bomb attacks (suicide bombs or IEDs) in Baghdad in February 2015, each near a restaurant or other public place, causing approximately 60 deaths in total and a significantly greater number of wounded. These, and other incidents, are also reported elsewhere in the evidence before us.

121. In January 2015 there were 118 IED attacks in Baghdad. Musings on Iraq reported the number of IED attacks in Baghdad in February 2015 in the following terms:

“Baghdad continued to suffer from a steady stream of improvised explosive devices (IEDs). 23 went off during the week killing 32 people, 46% of all deaths, and injured another 129, 80% of the total. The Islamic State’s VBIED bases around the capital have largely been disrupted and the group is using most of them for tactical attacks upon the government forces in places like Salahaddin. That has left IEDs as the main form of attack in the capital. While not as deadly as car bombs, most IEDs are set off in public places like shops and markets to harm as many civilians as possible and are the main driver of casualties for the last several months.”

122. According to figures produced by UNAMA, in the first 3 months of 2015 there were 947 civilian deaths and 2,561 civilian injuries in Baghdad. IBC recorded 4,767 civilian deaths in Baghdad governorate in 2014, almost double that of 2013.

123. Later incidents, in May 2015, are detailed in Amnesty International’s report of 14 May – reference being made therein to bomb, and/or rocket attacks of public places in Baghdad on 2, 5, 9 and 12 May this year, and kidnappings and other killings on 7 May. After the hearing we were also provided with news reports relating to two significant car bomb attacks on hotels in central Baghdad, carried out by ISIL at the end of May, in which at least nine more people were killed and dozens injured.

124. Dr Fatah explains that it is Baghdad’s Shiite districts that have borne the brunt of the bomb attacks – with the perpetrators generally believed to be either ISIL or other Sunni insurgents. Amnesty International reports that Shia militias, backed by GoI, have been abducting and killing Sunni civilian men in Baghdad, and around the country – indicating that it has documented “dozens” of such cases in Baghdad, Samarra and Kirkuk. Dr Fatah observes that Sunni districts experience fewer incidents than Shia districts and that such incidents as there are largely take the form of kidnappings and killings. Sunnis are targeted, amongst other reasons, as retribution for the acts of ISIL.

125. There are also reports of the Christian and Kurdish communities in Baghdad receiving death threats from Shi’a militias warning them to leave, although Dr Fatah does not identify the number of such threats, whether the threats prompted the recipients to leave, or whether any such threats were acted upon.

126. When viewed in the context of the size of the population of Baghdad city, we do not find the level of civilian deaths and injuries there, even taken at its highest and allowing for the likelihood of underreporting, to be indicative of the level of indiscriminate violence so as to engage Article 15(c). A resident of Baghdad city could, of course, reduce still further the already small possibility of being caught up in an attack by avoiding those busy public places which the evidence suggests are one of the primary targets.

127. We accept, however, that the statistics as to the level of civilian deaths and injuries in Baghdad are not determinative of the issue before us; indeed if they were then, as Mr Bazini properly points out, they are not significantly different to the statistics on deaths and injuries to civilians drawn in relation to some of the governorates in the contested areas. A more holistic approach is required.

128. There are significant differences as between the circumstances in the contested areas and those prevailing in Baghdad. The April 2015 CIG reports that despite the levels of violence in Baghdad, displacement there has remained low (around 60,000) with the majority of those displaced (40,000) moving within the governorate. This is in contrast to the high levels of population displacement away from the contested areas.

129. Although displacement levels are clearly a relevant factor when taking the inclusive approach to a consideration of Article 15(c), we are cautious about giving them undue prominence in our holistic assessment. A person who is facing egregious violence in one place may decide to move to another place that, whilst safer, is still far from peaceful. We do, however, accept that the large movement of people from the contested areas to Baghdad city is indicative of there being sufficiently less violence in Baghdad to make the arduous and upsetting process of fleeing one’s home worthwhile. The geography also indicates that those moving to Baghdad from the contested areas do not face a “Hobson’s Choice”, in that some, at least, would appear to have the option of seeking refuge in the Southern Governorates or across the border in Jordan.

130. It is also apparent from what we say above that the nature of the conflict is very different as between the contested areas and Baghdad, as are the circumstances of daily life between in the two regions – the nature of the conflict and the features of daily life in Baghdad both being relevant considerations in our determination of whether an Article 15(c) threshold has been met. As to the latter it is observed in the Landinfo report of February 2015, that:

“Daily life in Baghdad carries on in the midst of all the violent incidents. Somehow communications, transport, trade and industry and public business go on functioning, in spite of the many restrictions as a result of the many years of misrule, corruption and poor security.”

It is also relevant that the violence in Baghdad is largely generated by asymmetrical warfare (i.e. sporadic terrorist attacks) rather than by all out fighting, such as is to be seen in the contested areas.

131. Dr Fatah expressed agreement with the aforementioned passage from the Landinfo report during the course of his oral evidence, with the proviso that although daily life carries on the security situation has instilled a fear in the general populace. This we accept and have had full regard to when coming to our conclusions; nevertheless this must be viewed in the context of the very small proportion of persons living in Baghdad who are killed and injured there as a direct or indirect consequence of the security situation.

132. Having considered all of the evidence before us, a summary of which we have set out above, in our view we do not find that the level of violence in Baghdad city, or in Baghdad governorate as a whole, comes even close to crossing the Article 15(c) threshold.

133. Mr Bazini submits that, Kurds, Christians and persons without established connections to Baghdad should be considered to be in an “enhanced risk category” - by this, reference is being made to the conclusions of the CJEU in Elgafaji that where a person comes within a group of people for whom there is an enhanced risk, the degree of indiscriminate violence does not need to be as high as it would otherwise have to be in order to invoke Article 2 or Article 15(c) – see also Diakite at [31].

134. Other than the Mr Bazini’s assertion that Christians in Baghdad are at an enhanced risk we heard no submissions directly relating to this issue and were not directed to any evidence in support of the assertion made. Given the paucity of evidence, and lack of detailed submissions, we do not accept that it has been established that Christians in Iraq are in an enhanced risk category under Article 15(c).

135. We have heard or seen nothing that leads us to conclude that either persons without connections, or Kurds, in Baghdad are an “enhanced risk category” . As to the latter, this was put by Mr Bazini primarily on the basis that there is no established Kurdish area in Baghdad. Whilst we accept Dr Fatah’s evidence in this regard, we observe the evidence does not disclose a significant number of attacks on Kurds in Baghdad, nor have we been drawn to any evidence of recent displacement by Kurds out of Baghdad. The same is the position for those who have no connection to Baghdad prior to moving there. The evidence before us does not establish that a person with such a characteristic is at an enhanced risk in Baghdad.

136. It is rightly not suggested that the evidence demonstrates that there is a real risk of Article 15(c) harm arising solely because a person is a Sunni or Shia civilian in Baghdad and we, in any event, conclude that it does not.

137. Furthermore, the evidence does not disclose, and neither was it suggested to us, that those returned to Iraq on an expired passport, or a laissez-passer, have any difficulties at the airport, or when travelling en route to Baghdad city, for reason of not having a current passport or other form of Iraqi identification document.

The Baghdad Belts

138. The Institute for the Study of War identifies the Baghdad belts as consisting of residential, agricultural, and industrial areas that encircle the city of Baghdad, as well as the “networks of roadways, rivers, and other lines of communication that lie within a twenty or thirty mile radius of Baghdad and connect the capital to the rest of Iraq. Beginning in the north, the belts include the cities of Taji, clockwise to Tarmiyah, Baqubah [Diyala governorate] , Buhriz [Diyala governorate] , Besmayah and Nahrwan, Salman Pak, Mahmudiyah, Sadr al-Yusufiyah, Fallujah [Anbar governorate] , and Karmah [Anbar governorate] . This "clock" can be divided into quadrants: Northeast, Southeast, Southwest, and Northwest”.

139. This accords with information provided by the Foreign and Commonwealth Office (“FCO”) in its letter of the 11 May 2015, in which it is also observed that ISIL and other associated Sunni insurgent groups are active in the Baghdad Belts and have been known to target civilians travelling by road. It said further therein, however, that the numbers of attacks are lower than elsewhere in Iraq due to the generally non-permissive environment for Sunni insurgents to operate in.

140. In its “map of Iraqi towns and Cities seized by the Islamic States and its allies” (circa September 2014) the Long War Journal listed several areas in the Baghdad governorate as showing recent armed clashes – including Madain, Taji and Tarmiyah.

141. Both the Landinfo February 2015 report and the Home Office COI Request of 6 May 2015 report numerous attacks carried by ISIL in, or launched from, the Baghdad Belts. For example, on 18 September 2014 ISIL launched an attack on Baghdad’s Kadhmiyah neighbourhood, using mortar rounds and improvised explosive devices. It is said that it is believed the attacks were launched from Taji. There was also seven attacks on Dhuluyia, on the border of the Baghdad governorate, in September 2014 - an assault on the village being repelled by local fighters on 18 September. On 27 April 2015, 10 cars carrying unidentified armed individuals wearing security uniforms stormed Taji police station and took five detainees.

142. Paragraph 52 the Home Office COI Response records in the following terms incidents of forced displacement from regions within the Belts:

“Sources interviewed by Reuters confirmed the practice of forced displacement in the Baghdad belts region. Citing a defence official the report noted: “The militias... are trying to change the demography...They are carrying out acts of revenge and it is out of control. The military cannot restrain them. Hanin al-Qaddo, deputy head of the parliamentary committee on displacement and a member of PM al-Abadi’s political bloc stated: “It’s not possible to allow all these [displaced] families to return back to their house even if Islamic State is kicked out and clashes stopped...Why? Because most of these families in Baghdad Belt were providing a safe haven to Islamic State”.

143. The February 2015 Landinfo report reads:

“In the suburbs [another name for the Baghdad belts] fighting has been taking place continuously between ISIL and Iraqi forces supported by Shiite militias and the US air force ever since the summer [of 2014]. The army and Shiite militias are trying to prevent ISIL from taking control in these areas which would give them a foothold for launching attacks against the city from the suburbs. According to Jessica Lewis (2014) at ISW, ISIL is trying to hold and extend the positions they established in the summer so that they can surround the city and launch attacks on a larger scale”

144. On 1 May 2015 The Institute for the Study of War listed Nebai, in the North-West of the Baghdad Belts, as a “contested area” – observing that ISIL enjoyed freedom of movement in the area, and had used it as a place from which to launch its attacks.

145. It is immediately apparent from the brief synopsis above, of the geographical reach of the Baghdad Belts, that parts of the Belts to the north, west and east of Baghdad city fall within the territory of the governorates in which we have found there to be an Article 15(c) risk.

146. Given this, and the other evidence before us, we find that there are areas within the Baghdad Belts in which ordinary civilians are at risk of suffering harm of the type identified in Article 15(c) of the Qualification Directive. Such areas are though in the significant minority in the Belts, and in the areas closer to the Baghdad city boundaries the risk is akin to that which we have considered above for those person living within the city itself. Although we cannot give an exhaustive list of towns or villages in the Baghdad Belts where an Article 15(c) risk exists, in our view it does include those towns, villages or regions within the five governorates which form a part of the ‘contested areas’ and those parts of the Belts which constitute the borderlands between Baghdad governorate and the ‘contested areas’.

Internal relocation

Legal Framework

147. Article 8 of the Qualification Directive, which applies to both Refugee Convention and subsidiary (humanitarian) protection claims, is headed “Internal protection” and provides:

“1. As part of the assessment of 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.”

148. The correct approach to the issue of relocation is that set out by Lord Bingham in   Januzi v Secretary of State for the Home Department   [ 2006] UKHL 5 [2006] 2 AC 426 i.e. whether a person can reasonably be expected to relocate or whether it would be unduly harsh to expect them to do so. In AH (Sudan) & others (FC) [2007] UKHL 49 at [22], Baroness Hale described the reasonableness test as being “stringent” . The burden of proof, as with all aspects of the subsidiary protection determination process that we are concerned with, falls on the appellant.

149. If an ordinary civilian can establish a real risk of serious harm exceeding the Article 15(c) threshold in their home area, then in order to found eligibility for a grant of humanitarian (subsidiary) protection, it also has to be demonstrated that such a person cannot relocate to another region either because there is a real risk of serious harm in, or en route to, such a region or because circumstances exist there that would otherwise make it unreasonable or unduly harsh for such a person to relocate. The presence of Article 3 etc. serious harm is not a prerequisite for finding that relocation would be unduly harsh or unreasonable.

Places of Return

150. The Respondent states that she will only return Iraqi nationals to either Baghdad or to the IKR. The Respondent also identified that she will only return a person to the IKR if that person is from the IKR and such person has been pre-cleared for return by the IKR authorities.

Relocation to Baghdad

151. The Respondent’s position is that, save for those returnees in the category identified below, it would in general be reasonable, and not unduly harsh, to expect a person to relocate to Baghdad city if there is an Article 15(c) risk in their home area. The exception to this generality is identified by the Respondent as being:

“A person returned to Iraq who was unable to replace their Civil Status ID Card or Nationality Certificate [who would] be likely to face significant difficulties in accessing services and a livelihood and would face destitution which is likely to reach the Article 3 threshold. (Footnote: ⁶) ”

152. Having considered the entirely of the evidence before us, we have come broadly to the same conclusions as the Respondent - save that we observe that there will undoubtedly be persons who do not have a CSID and who have been returned with a passport or an expired passport who will not be destitute in Baghdad, and for whom there are no other reasons why relocation there would not be reasonable. In this regard, whilst Dr Fatah provides evidence, which we accept, that a CSID is required to access income/financial assistance, employment, education, housing, a pension, and medical committee documents, there will be persons who do not have a CSID but who nevertheless have access to an adequate support mechanism in Baghdad; for example those persons with family or friends in Baghdad who are willing and able to provide such assistance to them. Such matters will, of course, require careful consideration of the evidence, and a reasoned finding to be made, in each case.

153. The number of persons for whom it is not reasonable, or for whom it would be unduly harsh, to relocate to Baghdad is, we think, likely to be small.

154. As can be seen from the evidence we have set out earlier in the determination, this conclusion does not accord with the UNHCR’s or Amnesty International’s views – both organisations being of the opinion that it is not appropriate for States to deny persons from Iraq international protection on the basis of the applicability of an internal flight alternative.

155. Whilst we accept that the UNCHR has a significant presence on the ground in Iraq, with independent expert staff that have access to a wide range of information and evidence, and that its position paper on returns to Iraq is detailed and carefully sourced, it is but one of a large number of documents before us relating to the circumstances in Iraq which we have considered and weighed as part of a holistic assessment. In doing so we have borne in mind that the authorities identify that considerable respect should generally be afforded to UNHCR materials when consideration is being to a protection claim, an approach we have taken in the instant case, but such evidence is not presumptively binding of us (See HF (Iraq) at [44]). The UNHCR’s position paper on returns speaks in a generalised way about the relocation alternative and does not descend into specifics regarding the circumstances in particular governorates, unlike many of the other documents before us which, when considered holistically, lead us to a different conclusion to that taken by the UNHCR.

156. The same can be said of the evidence provided by Amnesty International. Once again, when undertaking our assessment of the evidence as a whole we have borne fully in mind not only the evidence, and conclusions thereon, provided by Amnesty International, but that Amnesty International is a recognised and well-informed body of high repute (Footnote: ⁷)

157. Despite the conclusions on the viability of internal relocation drawn by both of aforementioned respectable organisations from the evidence at their disposal, we have drawn a different conclusion from the evidence available to us, including the helpful expert reports from Dr Fatah which were not available to either organisation as far as we are aware. When this difference in conclusion is broken down into its component parts, it can be seen that it does not in fact derive from a significantly different view as to the situation and circumstances on the ground in Baghdad, or the incidents that have taken place there, but rather the legal consequences that flow from such situation.

158. Turning then to identify why we conclude as we do on this issue. The Secretary of State indicates that returns to Baghdad will only take place in accordance with the requirements of the Iraqi authorities i.e. that the returnee will either have an expired, or current, Iraqi passport, or a laissez-passer.

159. In cases where a returnee does not have an expired passport, a current passport or a laissez passer, whether as a consequence of refusing to engage with the process for obtaining one or for another reason, the Respondent will only enforce such person’s removal once a document meeting the requirements of the Iraqi authorities becomes available. In the meantime such a person cannot and will not be removed to Iraq.

160. A returnee with any one of the aforementioned three documents will have established to the satisfaction of the Iraqi authorities, at the point in time of being returned to Baghdad, their nationality and identity – that being the very purpose of requiring a returnee to hold one of these documents.

161. According to Dr Fatah, applications for a laissez-passer made after November 2014 are considered on a case by case basis by the Iraqi Embassy. The applicant must “convince” the Iraqi Embassy of their nationality and identity before the Embassy will issue a laissez-passer. In his oral evidence Dr Fatah confirmed that the Embassy requires production of an applicant’s CSID or INC or a photocopy of a previous passport and a report from the police confirming that it had been lost or stolen.

162. It was submitted by Mr Bazini that if a person is not removable because they do not have one of the aforementioned documents required by the Iraqi authorities, a status determination should be made in relation them on the factual basis that they do not have such documentation. In such circumstances, he asserted, it would be for a decision-maker – whether this be the Secretary of State or a Tribunal judge hearing an appeal against an adverse decision made by the Secretary of State, to determine whether (i) such a person has a CSID and (ii) if not, whether it is reasonably likely that such a person will not be able obtain a CSID either prior to, or after, removal to Baghdad. He reminded the Tribunal that pursuant to the Respondent’s own evidence a person relocating to Baghdad without a CSID would be at risk of an Article 3 breach and it would, therefore, be unreasonable and unduly harsh for them to relocate there.

163. The Secretary of State took a contrary position, Mr Blundell commended the Tribunal to proceed on the basis that both the assessment of risk and the assessment of the reasonableness of relocation made in relation to an Iraqi national protection applicant, should be undertaken on the basis that such an applicant will, at the point in time of return, have either a current or expired passport, or a laissez-passer issued by the Iraqi Embassy in London.

164. Mr Bazini sought to draw support for his submission from the Court of Appeal’s decision in HH (Somalia) and others v SSHD [2010] EWCA Civ 426 (Sedley LJ giving the judgment of the Court) in which the Court gave consideration to the issue of whether the route chosen by the Secretary of State to return a protection applicant could be relevant to the decision whether such applicant is entitled to protection:

1. It appears to us that the intention of the Qualification and Procedures Directives is to require a member state to make a decision on entitlement within a reasonable time of the application and to allow the issues raised in it to be subject to an appeal… we do think that, in a case in which the applicant raises a cogent argument within his statutory appeal that there may not be a safe route of return, the Secretary of State must address that question and the issue must be considered as part of the decision on entitlement. Postponement of such consideration until the Secretary of State is in a position to set safe removal directions would effectively be to postpone the decision until the cessation provisions have come into play.

2. We also consider that it is the intention of the Qualification Directive that all matters relating to safety on return should form part of the decision on entitlement. Article 8 envisages that a person may properly be returned to his country of origin if only part of it is safe. It excludes 'technical obstacles to return' from the determination of entitlement. On its face, however, this provision has to do principally with internal relocation, which makes it difficult to derive any general proposition from it about the Directive as a whole or as to what the Directive envisages as to safety during return. It gives some modest support to the suggestion that what Mr Thomann calls 'the mechanics of return' are not intended to form part of the case for protection. But not much support – for it starts with the words "As part of the assessment of the application for international protection…." Nevertheless, its first paragraph treats the availability of internal relocation as a factor negating any need for protection, and its third paragraph excludes from this calculation any "technical obstacles to return to the country of origin".

3. … there remains a question about what constitutes "technical obstacles" to return. In our view these are probably confined to administrative difficulties such as documentation; they may include physical difficulties such as the lack of return flights; but the phrase does not readily signify a requirement to ignore risks to life or limb once the returnee is back in the country of origin, not only because it does not say so – it speaks only of return to the country of origin – but because to do so would be to permit the very thing that the Directive is designed to prevent, refoulement to a situation of real danger. Our view is that the mere fact that technical obstacles are excluded from consideration suggests that issues of safety during return are to be considered.

4. In conclusion, our provisional view is that the Directives read together require that the issues of safety during return (as opposed to technical obstacles to return) should be considered as part of the decision on entitlement. Only technical obstacles of the kind we have sought to identify may legitimately be deferred to the point at which removal directions are being made or considered. We are aware that the entitlements which appear to follow may be considered an unintended consequence of the Directives; but this, as we have said, is an issue for another day…as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.

165. Mr Bazini submits that the absence of an applicant having either an expired or current passport, or a laissez passer, is not to be treated as a “technical obstacle” to return for the purposes of Article 8 of the Qualification Directive, given that the lack of documentation is a core feature in the assessment of such applicant’s safety upon return. He asserts that in such circumstances it is the factual nexus that pertains as of the date of the decision on the application for protection (or subsequent appeal) that must form the basis of the assessment of risk upon return.

166. We reject Mr Bazini’s submissions. First, it is to be observed that the reasoning in paragraphs 81 to 84 of HH (Somalia) was obiter , as the court itself identified in paragraph 80 of its judgment. Second, the court in HH (Somalia) was not dealing with matters relating to an impediment to return, as in the instant case – but to a failure of the Secretary of State to identify a route of return where, in certain circumstances, the choice of a particular route might put an applicant at risk. Third, this issue has, in any event, now been disposed of by the binding judgment of the Court of Appeal in HF (Iraq ) - (Elias LJ with the agreement of the Vice President and Fulford LJJ) – a decision that was placed before us by the parties but to which our attention was not specifically drawn.

167. We have set out the background to the decision in HF (Iraq ) above and do not repeat it here again. Elias LJ concluded therein as follows:

“89. The question which then potentially arises is how someone will be treated who is forcibly returned without the appropriate document. The Upper Tribunal concluded that this would not happen because the Secretary of State had stated that in practice she would not return anyone to Iraq who did not have the relevant identity documentation. It was suggested that this was her "policy" but in fact this is something of a misnomer: the policy was effectively forced upon her. Her evidence, as recorded by the Upper Tribunal, was that "without the necessary documentation there was no guarantee that they would be accepted by the Iraqi authorities in Baghdad."

90. It was for this reason that the Upper Tribunal considered that the issue was now academic: with the appropriate documentation, the appellants would not be at risk on return from ill-treatment arising out of detention; without it, they would not be returned. It was of course within their control which category they fell into.

…

95. Mr Fordham submits that … the Upper Tribunal … could not simply rely on an assurance from the Secretary of State that the appellants would not be returned. Whilst it is true that the individual would not be at risk whilst the Secretary of State's policy was in place, nonetheless the Tribunal was obliged to ask itself the hypothetical question whether there would be a real risk of ill treatment constituting either a breach of Article 3 or entitling the appellants to humanitarian protection. The appellants were entitled to have their position determined not least because it affected their status, and hence their rights, whilst they remained in the United Kingdom.

96. Moreover, Mr Fordham submitted that the fact that they could secure safe return by obtaining the relevant documents was not to the point. It was immaterial to the Tribunal's decision that the appellants may only be at risk because of their refusal to co-operate. That is similarly the position with certain sur place cases, such as those where an asylum seeker deliberately participates in activities in the UK which are designed to catch the attention of the home state and thereby place him at risk on return. If there is a real risk of serious harm on return, the applicant should be granted asylum even though he has by his own actions deliberately chosen to bring that risk upon himself, perhaps specifically to secure asylum.

97. I agree with Mr Fordham that if the reason for the Upper Tribunal declining to deal with the matter was simply that the Secretary of State had a policy not to return persons who could be returned but would be at risk of ill treatment in their home state, that would constitute an error of law, essentially for the reasons elucidated in JI.

98. However, Mr Eadie submits that this is a misrepresentation of the true position. His contention is that, properly analysed, the practice of not returning those without the appropriate travel documents is not a voluntary policy of the Secretary of State at all. The lack of documentation creates an impediment to return which the Secretary of State cannot circumvent. Iraq will not receive anyone from the UK without the relevant travel document. If an unsuccessful applicant for asylum refuses to co-operate to obtain the laissez passer document, he is in precisely the same situation as any other failed asylum seeker whom the Secretary of State is unable to return for one reason or another. The assurance of the Secretary of State that she would not return someone to Iraq without the relevant documents is of no special significance; it simply reflects realities. The general position of someone who cannot be returned, whether because he cannot obtain the requisite documents or for some other reason, is that he may be detained or granted temporary admission pursuant to section 67 of the Nationality, Immigration and Asylum Act 2002, provided at least there remains a possibility of his being returned at some stage in the future: see R (on the application of AR and FW) v Secretary of State for the Home Department [2009] EWCA Civ 1310. As Lord Justice Sedley pointed out in that case, the condition of someone with that status is harsh, although being granted temporary admission does at least allow the unsuccessful asylum-seeker to be free of actual detention.

99. Mr Eadie submits that these appellants are precisely in the situation of any other failed asylum seekers who would not be at risk in their own state but cannot for technical reasons be returned home. The existence of such technical difficulties does not entitle them to humanitarian protection. Article 8(3) of the Qualification Directive makes that plain where, as here, relocation is an option, and it is a fortiori the case where they are not at risk in their home area. Moreover, they can hardly be in any better position than any other asylum seeker who cannot be returned for technical reasons given that the technical difficulty stems from a deliberate refusal to co-operate.

100. Mr Eadie says that this is not like JI or the sur place cases where, if returned, the appellants would potentially face ill-treatment meeting Article 3 standards. They can only be returned with the necessary documentation, and if and when the impediment caused by lack of the relevant documentation is overcome, they will be safe on return.

101. In my judgment, this analysis is correct. I accept, as Mr Fordham submits, that it would be necessary for the court to consider whether the appellants would be at risk on return if their return were feasible, but I do not accept that the Tribunal has to ask itself the hypothetical question of what would happen on return if that is simply not possible for one reason or another . Section 67 of the 2002 Act envisages that there may be practical difficulties impeding or delaying making removal arrangements, but those difficulties do not alter the fact that the failed asylum seeker would be safe in his own country and therefore is in no need of refugee or humanitarian protection. I agree with the Secretary of State that the sur place cases are distinguishable because there the applicant could be returned and would be at risk if he were to be returned. They are not impediment to return cases. “ (emphasis added)

168. We consider that the judgments in HF (Iraq) are of considerable importance in formulating any country guidance regarding entitlement to international protection claims involving lack of documentation. If return is not feasible (to use the term employed by Elias LJ), then it is plain from paragraph 101 of the judgment that a tribunal must not hypothesise any potential situations on return, by reference to what documentation the returnee may or may not have or be able to obtain. We simply do not know. It appears to us this means that many appeals to the First-tier Tribunal, arising from refused protection claims by Iraqis, will fall into this category. It will only be when return is found to be feasible that the issue of documentation (or the lack of it) will be able to play a part in the determination of an appellant’s entitlement to protection.

169. On one reading of HF (Iraq ) – particularly the highlighted passage in paragraph 101 – the impossibility of return could be said to make it unnecessary to hypothesise any risk to an appellant in the country of proposed return, whether or not stemming from a lack of documentation or similar problem. We do not, however, consider that the Court can be taken to have intended such a reading. There may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of lack of documentation. Were Nazi persecution of the Jews occurring today, it would clearly subvert the purpose of the Convention to deny refugee status on the basis that, regardless of what might happen to appellants on return because they are Jewish, they cannot in practice be returned (whether because of documentation or mere refusal to admit Jews to Nazi Germany). For this reason, we consider that the judgment in HF (Iraq ) does not preclude a claim to international protection from succeeding, insofar as the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person’s actual return unfeasible.

170. In the absence of an expired or current Iraqi passport, a person can only be returned to Baghdad using a laissez-passer. According to Dr Fatah, either a CSID or INC or a photocopy of a previous Iraqi passport and a police report noting that it had been lost or stolen is required in order to obtain a laissez-passer. If a person does not have one of these documents then they cannot obtain a laissez-passer and therefore cannot be returned. This has a significant bearing on what we have just said. If the position is that the Secretary of State can feasibly remove an Iraqi national, then she will be expected to tell the tribunal whether and if so what documentation has led the Iraqi authorities to issue the national with the passport or laissez passer (or signal their intention to do so). The Tribunal will need to know, in particular, whether the person concerned has a CSID. It is only where return is feasible but the individual concerned does not have a CSID that the consequences of not having one come into play.

Relocation to the IKR

171. We have found at paragraphs 112 and 113 above that there is no Article 15(c) risk to an ordinary civilian in the IKR. What, though, of internal relocation? So far as a Kurd is concerned, the evidence of Dr Fatah was not seriously challenged by the respondent and we, in any event, accept it (see esp. paragraph 24 above). The position of Iraqi Kurds not from the IKR is that they can gain temporary entry to the IKR; that formal permission to remain can be obtained if employment is secured; and that the authorities in the IKR do not pro-actively remove Kurds whose permits have come to an end. Whether this state of affairs is such as to make it reasonable for an Iraqi Kurd to relocate to the IKR is a question that may fall to be addressed by judicial fact-finders, if it is established that, on the particular facts, permanent relocation to Baghdad would be unduly harsh. In such circumstances, the person concerned might be reasonably expected to relocate to the IKR. In this scenario, whether such further relocation would be reasonable will itself be fact sensitive, being likely to involve (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of securing employment; and (c) the availability of assistance from friends and family in the IKR.

172. So far as non-Kurds are concerned, we do not consider that, as a general matter, relocation to the IKR is a reasonable proposition. The risk of being turned away at the point of entry is significant, unless a person has connections with people in the IKR.

Obtaining a CSID whilst in the UK

173. As regards those who have an expired or current Iraqi passport but no CSID - Dr Fatah identifies in his first report that a CSID may be obtained through the “Consular section of the Iraqi Embassy in London”, which will send a request for a replacement or renewed CSID to the General Directorate for Travel and Nationality – Directorate of Civil Status. A request for a replacement CSID must be accompanied, inter alia , by “any form of official document in support of the applicant’s identity” and the application form must be signed by “the head of the family, or the legal guardian or representative to verify the truth of its contents.” He also added that an applicant must also authorise a person in Iraq to act as his representative in order for that person to “follow up on the progress of the application.

174. However, Dr Fatah continued by explaining that if an individual has lost his CSID and does not know the relevant page and book number for it, then the Iraq Embassy in London will not be able to obtain one on his behalf. Instead, he or she will have to attend the appropriate local office of family registration in Iraq or give a relative, friend or lawyer power of attorney to obtain his or her CSID. The process of a giving power of attorney to a lawyer in Iraq to act “as a proxy” is commonplace and Dr Fatah had done this himself. He also explained that the power of attorney could be obtained through the Iraq Embassy.

175. Dr Fatah gave further evidence to the effect that having a marriage certificate may be useful as it would contain data found in the family records. It is, however, not possible to use a “health card” in order to obtain a CSID because there is no primary health care or GP system in Iraq, but instead patients attended hospital when they needed to do so and no central records are held.

176. There is a consensus between Dr Fatah’s evidence and the following more general evidence provided by UNHCR-Iraq in April 2015 on the issue of obtaining CSID’s from abroad.

“In principle, a failed asylum seeker, or indeed any Iraqi citizen abroad, can acquire Iraqi documents through Iraqi embassies and consulates. There is a special authorization granted to these bodies to provide documents for Iraqi abroad on the condition that the beneficiaries should have any available documents in order to prove their nationality.”

177. In summary, we conclude that it is possible for an Iraqi national living in the UK to obtain a CSID through the consular section of the Iraqi Embassy in London, if such a person is able to produce a current or expired passport and/or the book and page number for their family registration details. For persons without such a passport, or who are unable to produce the relevant family registration details, a power of attorney can be provided to someone in Iraq who can thereafter undertake the process of obtaining the CSID for such person from the Civil Status Affairs Office in their home governorate. For reasons identified in the section that follows below, at the present time the process of obtaining a CSID from Iraq is likely to be severely hampered if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring.

Obtaining a CSID whilst in Iraq

178. The evidence before us in this regard is largely undisputed.

179. Dr Fatah in his most recent report indicates that the starting position is that in order to obtain a new or replacement CSID a person usually had to return to the governorate where his or her birth was registered and where the primary family registration book is held i.e. in the local population registration/civil status office. He went on to explain that there are 300 population registration offices in Iraq which are responsible to a central Civil Status Affairs Directorate.

180. Births are registered manually in volumes held at these local population registration offices and these offices are responsible for checking the manual register before issuing a CSID. They also send information on to the central population registry in Baghdad. USAID Iraq told Dr Fatah that the central population registry/central archive is not a searchable data base. Instead a “search of the central archive needs an officer to open doors (literally or metaphorically). The search must be done by a government official – members of the public cannot search through the “central archive” . The key issue is whether the official is willing to do the search – or can be made willing. In addition, the individual would need to know his volume and page numbers or the official would have to trawl through a given governorate’s entire archive of back-up files. As a consequence, if an individual does not have his volume and page number his only option will be to locate a close family member with the same details and hope that an official will assist him.

181. There is also some doubt as to whether a CSID could be handed over to anyone but the individual whose details it contained, even if an individual did hold a power of attorney. In addition, if the person is outside Iraq the details of an individual’s CSID would have to be sent to him and he would have to ask the Iraqi Embassy to send any application for a CSID through the Ministry of Foreign Affairs to Iraq. The Ministry of the Interior would then need to issue the CSID and send it to the Ministry of Foreign Affairs who would send it back to the Iraqi Embassy in London.

182. UNHCR-Iraq told Dr Fatah that there is no database or any electronic system in place to issue CSIDs. Scanned copies of local paper records are archived in the General Directorate of Civil Status Affairs in Baghdad. Having discussed the situation with Landinfo Dr Fatah concluded that registration is undertaken in the local area and that the Civil Status Affairs Directorate or central population registry in Baghdad does not generally issue CSIDs.

183. This is confirmed to some extent by the fact that the Iraqi government has set up two Alternative Civil Status Affairs Offices to issue CSIDs to IDPs from governorates which have been captured by ISIL. One office has been set up in Najaf to issue copies of CSIDs archived from Mosul, and another office has been set up in Baghdad to issue copies of CSIDs to individuals from Anbar and Salahaddin. These offices are only authorised to issue CSIDs to IDPs from these governorates.

184. Dr Fatah was further informed by a source at the Norwegian Refugee Council that the Ministry of the Interior had refused to open up more Alternative Civil Status Affairs offices so as to protect civil records from fraud, to protect confidentiality and to avoid duplication, as there was no database or electronic system.

185. UNHCR-Iraq provides some support to those without a CSID through its Protection, Assistance and Re-integration Centres (“PARC”), but such support is limited to providing guidance and legal advice on required procedures and documents needed to obtain a CSID. It did not issue these or other documents itself. It also confirmed that Harikar and Qandil (Footnote: ⁸) have indicated that they do not issue CSIDs. The Norwegian Refugee Council told Dr Fatah that there is a network of legal aid clinics in Iraq, which is funded as part of USAID’s Iraq Access to Justice Programme. They also provide legal advice, but do not issue CSIDs.

186. Drawing all of this together we conclude that an Iraqi national should as a general matter be able to obtain a CSID from the Civil Status Affairs Office for their home Governorate, using an Iraqi passport (whether current or expired), if they have one. If they do not have such a passport, their ability to obtain a CSID may depend on whether they know the page and volume number of the book holding their information (and that of their family members). Their ability to persuade the officials that they are the person named on the relevant page is likely to depend on whether they have family members or other individuals who are prepared to vouch for them.

187. An Iraqi national’s ability to obtain a CSID is likely to be severely hampered if they are unable to go to the Civil Status Affairs Office of their home Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which a person could apply for formal recognition of identity. The precise operation of this court is, however, unclear.

Conditions in Baghdad

188. We accept that Iraq’s economy is in a poor position, being heavily dependent as it is on oil revenues, which have fallen significantly because of the drop in the oil price and the fact that a number of oil producing facilities are in the contested areas.

189. Dr Fatah cites figures from 2007-2011 in which it is said that 2.8% of the population lie below the poverty line of $1.25 per day. According to the CIA Fact Book, as of July 2014 Iraq had an estimated population of 32,585,692, with 10 million males and 8.5 million females being of “working age” (taken to be between 15 and 64 years old). Only 50% of the population “participate in the workforce” of which, according to UNDP Iraq in 2014, approximately one in six were women. It is considered normal in Iraq for Iraqi women to depend on their male family members in a male headed household. Sources vary between 18% and 24% as to the unemployment rate in Iraq as a whole for 2013/14. A CSID is necessary in order to obtain employment.

190. According to unemployment figures for 2014 produced by the United Nations, the percentage of unemployment recorded for Baghdad was 9.7%, although youth unemployment (between the ages of 15 and 29) was said to be at 17.1%. Musings on Iraq commented, from the figures produced by the UN that “men were proportionately employed to a greater degree than women” . There is also clear evidence that the Iraqi state is the dominant employer in the country, employing approximately 5 million people. Political connections and family ties are of importance in obtaining employment, particularly in the public sector.

191. Dr Fatah provides evidence indicating that the average salary in 2012 in Iraq was $6000, but that some public sector workers were earning $2400 per year. He is of the opinion that that the employment statistics are distorted by the presence of ‘ghost’ employees – there being over a 1000 ghost companies according to Iraqi News.

192. As to the living conditions generally in Baghdad – Dr Fatah reports that residents there have electricity supply for approximately 16 hours per day and 62-80% “used public water for drinking” , although many households have less than two hours access a day to water. This broadly accords with evidence provided in the February 2015 Norwegian Landinfo report, which also identifies that:

“The public health service is operational, if only at a minimal level. It is generally poor all over the country but operates better in Baghdad than other places. There are no significant shortages of medicines generally in the country…The schools are open and education has not been seriously interrupted for several years.”

193. Turning to the issue of accommodation – Dr Fatah opines that the vast majority of IDPs in Iraq live in temporary shelters, with one in every five living in an unfurnished building with no water, electricity or heat. Dr Fatah does not, however, particularise this evidence in relation to Baghdad and we do not accept that this generality holds good for this city.

194. The IOM Displacement Snapshot for Baghdad - dated September 2014 - states:

“The great majority of IDPs in Baghdad are Arab Sunnis (83%)…and are located across most districts of Baghdad…

The most common type of shelter arrangement for Baghdad IDPs is staying with relatives; almost 60% of all IDP families in Baghdad are being hosted by relatives across the governorate…

Additionally, close to 500 families are being hosted by Mosques and holy sites…All these families are Shia Muslim. Over 60 families are currently seeking shelter in school buildings exposed to the possibility of having to relocate when the school year begins.

…over 130 families are staying in vulnerable housing, meaning school buildings, informal settlements, camps, collective centers, abandoned/public building/spaces under construction exposing them vulnerabilities such as adequate access to water, food, sanitation facilities, and health facilities.

IDPs in Baghdad are reportedly receiving food assistance through local NGOs, religious groups and community donations. They also generally have access to water, sanitation and healthcare…

The majority of IDPs are living in rented houses and they are struggling to pay the rent…”

195. According to the IOM Displacement Tracking Matrix (Footnote: ⁹) Round XVII – dated April 2015 - there are 177,906 IDPs living in a host family’s accommodation in Baghdad, 167,328 IDPs living in rented accommodation, 3,330 in school buildings, 3,180 in camps, 2,106 in informal settlements – such as a groups of tents, 1554 persons living in Hotels or Motels, 690 living in religious buildings and 186 IDPs living in abandoned buildings.

196. Given the precision of these statistics, and body producing them, we accept they provide a reasonably accurate picture of the living arrangements in Baghdad for persons displaced there – although it is also not difficult to accept that there will be some IDPs who are not captured within these statistics.

197. There are a number of relevant features in these statics for decision-makers determining whether, in any given case, it is reasonable for a person to relocate to Baghdad. First, a significant proportion of displaced person’s live in host family’s accommodation. This accords with evidence set out above regarding the ‘draw’ factors of Baghdad for displaced persons. Careful consideration will have to be given by decision-makers to the question of whether an individual being returned to Baghdad has family there to accommodate them. If this is so then consideration will have to be given to the issue of whether those family members will provide sufficient assistant to render relocation reasonable irrespective of whether the applicant has a CSID.

198. The second significant feature is the percentage of displaced persons who reside in rented accommodation in Baghdad. Although we have no evidence to show how such persons obtained the financial capability to fund their accommodation, we do not think it beyond the realms of reasonableness to draw from this that there are opportunities available in Baghdad for displaced persons to earn sufficient funds to enable them to rent accommodation if they have a CSID.

199. The third relevant feature of these statistics is the small percentage of displaced persons who are recorded as living in places other than a host family’s, or rented, accommodation.

200. In addition to that which we have observed above, we have also been provided with evidence regarding numerous organisations operating in Baghdad that provide assistance to displaced persons. However, we take cognisance of the fact that a staff member at the Ministry of Displacement and Migration informed Dr Fatah that failed asylum seekers are not treated as IDPs by the Ministry and that the Ministry only had an obligation to assist IDPs. An organisation named Harikar also told Dr Fatah that they focused on IDPs and not failed asylum seekers. UNHCR and the Ministry of Interior were not able to provide any information about whether or not failed asylum seekers would be able to access support or assistance provided to IDPs.

201. As identified above, evidence from UNCHR-Iraq reveals that as of April 2015 it had a branch office in Baghdad and that it had established a network of Protection and Assistance Centres through its partner agencies, which include:

(i) the Norwegian Refugee Council, which is funded by USAID’s Iraq’s access to justice programme and provides cash assistance, food distribution and shelter;

(ii) the International Organisation for Migration (“IOM”) which has implemented several projects directed towards IDPs in Iraq including; income generation projects, emergency response in a crisis, and livelihood projects, which were implemented in conjunction with the Ministry of Displacement and Migration (“MoDM”); and,

(iii) the International Rescue Committee (“IRC”), which provides a number of services for, and on behalf of, IDPs, including: legal assistance, protection monitoring, capacity building and development, protection interventions and referrals, advocacy and information dissemination.

202. It is clear from the evidence before us that Arabic speaking males with family connections to Baghdad and a CSID are in the strongest position. At the other end of the scale, those with no family connections in Baghdad who are from minority communities and who have no CSID are least able to provide for themselves. There are a wide range of circumstances falling between these two extremes. Those without family connections are more vulnerable than those with such connections. Women are more vulnerable than men. Those who do not speak Arabic are less likely to be able to obtain employment. Those from minority communities are less likely to be able to access community support than those from the Sunni and Shi’a communities.

203. On the evidence before us, whilst we accept that for a person who has no family or other support in Baghdad and who also does not have a CSID, and cannot obtain one reasonably soon after arrival, it would be unreasonable and unduly harsh to relocate to Baghdad, for the generality of Iraqis, despite difficulties that may be experienced in respect of such matters such as access to health care, education and jobs, we consider that relocation to Baghdad is safe and not unreasonable or unduly harsh – one reason being that a person can only be returned to Baghdad if such person has a current or expired Iraqi passport or a laissez-passer.

Country Guidance

204. The guidance we give is as follows:

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

1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called “contested areas”, comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta’min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.

2. The degree of armed conflict in certain parts of the “Baghdad Belts” (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.

3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).

4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.

B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)

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

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

7. In the light of the Court of Appeal’s judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P’s return is not currently feasible, given what is known about the state of P’s documentation.

C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE

8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.

9. Having a CSID is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).

10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.

11. Where P’s return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P’s return have been exhausted, it is reasonably likely that P will still have no CSID.

12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P’s home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P’s ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P’s information (and that of P’s family). P’s ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.

13. P’s ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P’s Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad. The evidence does not demonstrate that the “Central Archive”, which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.

D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IKR)

14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.

15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:

(a) whether P has a CSID or will be able to obtain one (see Part C above);

(b) whether P can speak Arabic (those who cannot are less likely to find employment);

(c) whether P has family members or friends in Baghdad able to accommodate him;

(d) whether P is a lone female (women face greater difficulties than men in finding employment);

(e) whether P can find a sponsor to access a hotel room or rent accommodation;

(f) whether P is from a minority community;

(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.

16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).

E IRAQI KURDISH REGION

17. The Respondent will only return P to the IKR if P originates from the IKR and P’s identity has been ‘pre-cleared’ with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.

18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.

19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.

20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b) the likelihood of K’s securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.

21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.

F. EXISTING COUNTRY GUIDANCE DECISIONS

22. This decision replaces all existing country guidance on Iraq

The Appellant’s Case

205. The Appellant is Kurdish and comes from Kirkuk, which is one of the contested areas of Iraq. He would face an Article 15(c) risk if he returns there.

206. However, the Respondent has confirmed that the Appellant would be returned to Baghdad city. There is no evidence that the Appellant has access to a current or expired Iraqi passport, or a laissez-passer, and we conclude that he does not. In all the circumstances we find that he will not be returnable until he is able to supply sufficient documentation to the Iraqi Embassy in London to enable it to provide him with a passport or a laissez passer. This will only occur if he can provide a copy of a CSID or Nationality Certificate. His return is, therefore, not currently feasible.

207. Given that the appellant’s return is not currently feasible it could be said that it is unnecessary to hypothesise any risk to him upon his return to Iraq. However, as identified in paragraphs 169 and 170 above, there may be cases where it will be evident that the person concerned would be at real risk of persecution or serious harm irrespective of the lack of documentation and that an applicant should not be precluded for pursuing a claim to international protection in circumstances where the asserted risk of harm is not (or not solely) based on factors (such as lack of documentation) that currently render a person’s actual return unfeasible.

208. The appellant’s legal advisors were not to know our findings on this issue at the time of presenting the appellant’s appeal, and we have heard no submissions on the issue of whether, despite it not being feasible to return the appellant, it is said his circumstances are such that he is entitled to humanitarian protection. It is no answer to this, we think, for us to simply request the parties to make submissions on this issue in writing. This would cause prejudice to the appellant not of his own making. There are matters of factual dispute such as, inter alia , the appellant’s claimed inability to speak Arabic; the whereabouts of certain of his family members; and (possibly) his ability to enter and remain in the IKR as longer-term alternative to Baghdad, which require resolution in these proceedings. Although the appellant’s legal representatives chose not to call him to give oral evidence before the Upper Tribunal, the significance of the matters of fact still in dispute could not have been fully appreciated, and certainly was not by the Tribunal, until the ‘Country Guidance’ had been formulated. Had it been so appreciated we have no doubt that not only would the appellant have been called to give evidence but Dr Fatah could also have been asked to provide evidence on matters relevant to these issues; for example, the likelihood of, and extent to which, the appellant would have been taught Arabic as part of the education process that he accepts he undertook in Iraq.

209. The Tribunal last undertook a fact finding exercise in relation to this appellant as long ago as April 2011 i.e. over 4 years ago. Whilst the findings of fact made by Designated Judge Wynne have been preserved, he did not make findings on all of the matters that have subsequently become relevant to assessment of the appellant’s claim. It is equally clear that as a consequence of the passage of time the situation in Iraq for the appellant’s family may have changed. Findings are required in this regard.

210. In light of all that we have said above, we conclude that the most appropriate course, given the extent of the fact finding necessary in this appeal, is to remit the matter to the First-tier Tribunal for it to make the further necessary findings of fact. The Tribunal is hereby directed to thereafter apply the relevant Country Guidance.

Signed:

Upper Tribunal Judge O’Connor

Paragraph 168, 169 and 203 of this decision have been amended pursuant to Rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

APPENDIX A

DOCUMENTARY EVIDENCE BEFORE THE UPPER TRIBUNAL

Expert Reports

Documents before the Upper Tribunal