Why Shouldn’t I Expect An Iraqi Appeal Based On A Claim For Humanitarian Protection To Be Allowed By The Tribunal?

There should be no lack of confidence in appearing before Tribunal Judges with an  expectation  that Humanitarian Protection appeals from  Iraq nationals originating from one of the “contested areas” should  be allowed.  In practice, it appears  First Tier Tribunal Judges are allowing such appeals- how regularly is not clear.   The Home Office are however on the other hand,  apparently routinely refusing  asylum and humanitarian protection claims  from Iraqi  nationals,  even those accepted to originate  from  the contested  areas.  The  basis of  their  position?  Their own country policy and information notes which conveniently  bind Home Office decision-makers at  first instance.

(1)What is a claim for Humanitarian protection?

The relevant EU Directive is the Qualification Directive (Council Directive 2004/83/EC).

Article 2 provides:

“For the purposes of this Directive:

………..

(e) ‘person eligible for subsidiary protection’ means a third country national …. who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in article 15, … and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country.”

Article 15 provides:

“Serious harm

Serious harm consists of

(a) death penalty or execution; or

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

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

Such persons are required to be granted subsidiary protection status by reference to Article 18 unless an internal relocation alternative is open to them (Article 8) or until the risk in the country of origin ceases (Article 16).

Paragraph 339C of the Immigration Rules, repairs the  omission of Article 15 to provide for protection from a real risk of targeted deprivation of life in breach of ECHR Article 2. Rule 339C accordingly adds unlawful killing to the tabulation of forms of serious harm which, for the rest, it takes directly from Article 15.

 

(2)Iraqi Country Guidance caselaw  and  the  contested areas:

AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC), provides in its headnote:

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”.

 

(3)What is the current Home Office position?

 

Country Information and Guidance Iraq: Security situation in the ‘contested’ areas Version 1.0 August 2016, provides between paragraphs 2.3.10  to  2.3.14:

  • There has been a steady decline in security incidents in all ‘contested’ governorates, especially in Salah al-Din, since Daesh (Islamic State) captured Mosul, Iraq’s third-biggest city, in June 2014. Since mid-2015, when the UT in AA considered evidence, the number of security incidents has declined in Anbar and Salah al-Din. The number of security incidents has remained steady in Ninewah, Diyala and Kirkuk, with the latter two governorates still showing much lower levels overall when compared to the other ‘contested’ areas (see Security incidents).

  • Since mid-2015, the number of civilian fatalities and injuries either decreased or remained steady in Diyala, Kirkuk and Salah al-Din, and within relatively low levels. Anbar and Ninewah has seen far more civilian deaths overall. Their statistics are fairly erratic, which reflects the more ‘contested’ nature of the governorates and how Daesh’s control gives them more opportunity to subject the civilian populations in these areas to killings (see Fatalities).

  • Although Daesh has suffered losses in all the ‘contested’ governorates, the group still holds large parts of Anbar and Ninewah, with life in these areas characterised by systematic and widespread acts of violence and gross violations of international humanitarian law and abuses of human rights. There remains a significant threat to the lives and psychological well-being of the inhabitants there (see Human rights violations against civilians). These two governorates also remain the most violent of the ‘contested’ areas, with people still not generally returning there (except to the areas of Anbar near Baghdad).

  • For these reasons, Diyala, Kirkuk (except Hawija and the surrounding areas) and Salah al-Din no longer meet the threshold of Article 15(c). Anbar and Ninewah, however, still meets the threshold of Article 15(c).

Presenting Officers have been placing reliance upon the  above Home Office position during appeal  hearings.  Even prior to the  very recent promulgation of BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC), action  in response  would be  and still should be,  to undertake prior additional  updated  background  research  as regards the  relevant  area so as to  evidence that the Home Office policy position  is unsustainable and flawed.

 

M & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091,   in any case provides in its headnote:

5. Before the Tribunal will take seriously a challenge to the historic validity of a Tribunal country guidance case, it would need submissions which seek to adduce all relevant evidence, for or against, the proposed different view……………”

 

4)Feasibility of return to Iraq( not  to Iraqi Kurdish Region( IKR):

 

AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) summaries  in its headnote:

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.

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”.

Most Iraqi nationals  do not arrive in the UK  with any national documents, such as a passport. The Presenting Officer may be able to  put forward  an argument   that  a claimant  in the UK may still have  relatives residing  in the  relevant “ contested area”,  expected to  assist  in obtaining  relevant documentation.   Country Information and Guidance  Iraq: Return/Internal relocation Version 3.0 , August 2016,  however helpfully concludes between paragraphs 2.4.18 to 2.4.19:

  • Due to the circumstances of armed conflict in the ‘contested’ areas, it may not be reasonable to expect a person to use a proxy to reacquire documents from their place of origin.

  • It is also not known to whether registration records held in the ‘contested’ areas are intact or accessible”.

(5)Internal Relocation within Iraq( other than Iraq Kurdish region):

 

AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) summaries in its headnote:

 

“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)”.

An Iraqi Kurd, for example,  not in a position to provide a CSID, with an  inability to speak Arabic, never having lived in Baghdad and  having no  connections there or a Sponsor, should  be in a position to successfully place reliance upon  the above factors to his advantage.

As regards the issue of support generally given to IDPs, Country Information and Guidance, Iraq: Humanitarian situation, Version 3.0 August 2016, provides in summary between  paragraphs  to 6.1.5 to 6.1.9:

  • the persistent violence and scale of the displacement continue to impact IDPs’ access to basic services, such as housing, clean water and education and the number of civilians who have died from secondary effects of armed conflict and violence is unknown.

  • UNAMI/OHCHR reported that some IDPs also faced the threat of eviction.

  • health providers are struggling to deliver basic support in areas with high concentrations of displaced. Water and sanitation systems are in disrepair, increasing the risk of major public health emergencies, particularly in the summer period when temperatures soar to unbearable levels. Overcrowding is a major problem in countless communities. Already, Iraq has one of the highest tuberculosis rates in the region and measles have been reported in all 18 Governorates.

  • destitution is widespread, impacting displaced families and host communities alike.

  • half of all displaced need urgent shelter support; 700,000 are surviving in unfinished and abandoned buildings, makeshift collective centres and spontaneous settlements.

  • refugee International, in a November 2015 report, wrote that they ‘visited multiple camps in Anbar, Babil, and Baghdad that had either no or unaffordable electricity, no reliable clean water source, poor sanitation, and practically nonexistent medical care. The camps also have inadequate food and shelter. There are new arrivals in camps every day, but there is simply no way to provide for everyone in need by using the current systems and what few plans seem to exist.

  • IDPs are further made vulnerable by the inability to provide for themselves. Job opportunities are scarce to begin with, and there is often a fear of venturing out into the more urban areas where work might be found.

  • the fear for their own safety appears more acute among Sunni refugees from Anbar who have been forced to relocate to Baghdad.

Current Home Office policy  can therefore be utilised to advance an argument  that  support generally given to IDPs is not accessible on the facts of a particular case  or is inadequate.

 

(6)Internal Relocation to the Iraq Kurdish region:

 

AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC)  further summaries in its headnote:

 

“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”.

Some Iraqi Kurds, for instance,  would have provided  specific personal  reasons  as to  why they should not be expected to   relocate to Kurdistan  and combined with issues of practicality of travel  from Baghdad to the IKR, as well the absence of a sponsor, connections  and employment in  the IKR, the Tribunal  can be  persuaded  to reach a finding  that the option of internal relocation  to the IKR is not available on the facts.

(7)The problem of treatment of Sunni Arab Muslims by Shi’ite  militia forces:

Before BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) was promulgated,   it was  evident that claims from Sunni Muslims are  capable of successful  advancement  not only by virtue of  reliance upon  other external background evidence but  again by reference to the Home Office’s  own country policy and information notes.

 

The Country Information and Guidance Iraq: Sunni (Arab) Muslims Version 1.0 August 2016, provides relevantly in summary:

 

  • Sunnis are marginalised by the Shia majority in Baghdad.

  • There are reports that Government forces have abused Sunnis, mainly in areas of current or recent Daesh (Islamic State) control.

  • Various non-state actors, primarily the powerful Shia militia (who number, in some estimates, in the tens of thousands), have violated the human rights of Sunnis in Baghdad and the ‘contested’ governorates. These abuses increased following the remobilisation of the Shia militia in response to the Daesh insurgency in 2014.

  • A Sunni may be able to demonstrate a real risk of persecution or serious harm from the Shia militia, but this will depend on their personal profile, including their family connections, profession and origin.

  • The Shia militia act with impunity and sometimes work together with Government forces. Shias dominate the police and security services. Abuses are not properly investigated.

  • As a result, the state appears able but unwilling (and unable and unwilling in the areas controlled by Daesh) to offer effective protection. As such, the person will not be able to avail themselves of the protection of the authorities.

  • There are areas of Iraq to which, as a general matter, a person cannot relocate because of the security situation.

  • Since 2003, Baghdad has become more segregated between Sunni and Shia.

  • Freedom of movement may be limited in areas under the control of Government forces and/or Shia militia, including in Baghdad. A Sunni may be required to find a sponsor to enter the city, although this requirement is subject to change based on the changing security situation. A Sunni will generally be able to relocate to Baghdad, as long as it is not unreasonable based on their specific circumstances.

  • Sunni Arabs in Iraq originate from the central governorates, predominantly Anbar, Ninewa and Salah al-Din, and parts of Kirkuk and Diyala.

  • Several sources indicated that, since 2003, Baghdad has become more segregated and Shia-dominated.

  • Several sources reported that Shia militia committed abuses against Sunnis. Amnesty International noted that the PMUs (and Government forces) committed war crimes, other violations of international humanitarian law and human rights violations, mostly against Sunni communities in areas under IS control.

  • Sunnis were considered ISIS supporters and were feared to be members of ISIS.

  •  the militia are in the process of carrying out indiscriminate attacks on the population on sectarian and ethnic basis, while always hiding behind the pretext of fighting terrorism. Recent campaigns have seen “Sunni” Arabs as the major target of the militias’ fury. The strategy, which is fervently supported by the government, aims at displacing this component of society and “clean” certain areas from their presence. FH 2015 noted: Shiite militias allegedly attacked and displaced Sunni Arab civilians in some areas in retaliation for perceived support for IS.

  • In June 2016, a joint written statement to the UN by the International Youth and Student Movement for the United Nations, and other organisations, noted that the militia are in the process of carrying out indiscriminate attacks on the population on sectarian and ethnic basis, while always hiding behind the pretext of fighting terrorism. Recent campaigns have seen “Sunni” Arabs as the major target of the militias’ fury. The strategy, which is fervently supported by the government, aims at displacing this component of society and “clean” certain areas from their presence.

  • Shiite militias allegedly attacked and displaced Sunni Arab civilians in some areas in retaliation for perceived support for IS.Shia militias, including AAH, typically kill Sunnis by shooting them in the head using a silenced gun. In recent years, victims have been found in Baghdad who have been executed in typical Shia militia style: they have been shot in the head and their arms have been tied behind their backs.

  • Sunnis have experienced problems at checkpoints because of their names.

  • There are approximately 200 checkpoints in the streets of Baghdad. These are used to check the identity of people and to check vehicles. Sunnis are inspected more thoroughly than Shiites. Checkpoints are often adorned with Shia religious iconography. It is very difficult to make a distinction between armed militias and the security forces.

  • A UNHCR report, dated May 2016, about relocation of Sunnis to Baghdad, quoted various sources. It summarised: ‘According to reports, there has been a renewed surge in targeted violence against Sunni Arabs in Baghdad since 2014…there has reportedly been a renewed increase in bodies discovered, mostly of Sunni Arab men, who are found blindfolded, handcuffed and apparently executed on a daily basis, mostly in Baghdad. According to reports, the mode of killing and the geographic location where the bodies are found often correspond with known patterns of Shi’ite militias killing for sectarian or political motivations. Families of those abducted or killed are reportedly often apprehensive about reporting the abduction or killing to the police, or checking the morgue, as they fear being subjected to reprisals.

  • Human rights groups and the media reported high levels of sectarian violence. Much of the violence was due to Shia militias–some of which participated as part of the PMF, nominally under government control–killing and abusing Sunni civilians. The situation worsened during the year, and Sunni civilians faced revenge attacks for Da’esh crimes as well as forced displacement from their homes.

  • Members of Shia militias, who the Iraqi government has included among its state forces, abducted and killed scores of Sunni residents in a central Iraq town and demolished Sunni homes, stores, and mosques following January 11, 2016 bombings claimed by the extremist group Islamic State, also known as ISIS. None of those responsible have been brought to justice.

  • Human Rights Watch , in a report which covered events in 2015, noted that Shia militias carried out widespread and systematic violations of human rights and international humanitarian law, in particular, demolishing homes and shops in recaptured Sunni areas.

  • It is a commonly held view among Sunnis that the authorities are unable or unwilling to help them. Police officers are often said to be Shiites.

  • The police are unable to protect citizens against violent attacks. They are not even able to protect all government employees, with the exception of high-ranking Shia employees.

  • Sunnis have filed reports at police stations. Some incidents have been investigated, but in other cases no investigation has been launched or the people filing a report have been told that there was nothing the police could do under the present circumstances. Some people do not even bother to report a crime because they are convinced the authorities will do nothing to help. Others are afraid to report the activities of a specific armed group, because they say the authorities are members of the group in question. It is difficult to report the activities of the security authorities. The police protects itself and the security forces, which makes any police investigation highly questionable.

  • According to reports, the Iraqi security authorities, the army and the police persecute people because they are Sunnis. The presence of Shia militias at some police stations makes it almost impossible for Sunnis to report a crime, and completely impossible if the report refers to the actions of the Shia militias.

The above summary also accounts in part for why Sunni Arabs  should not be expected  to relocate to  Baghdad.

 

In relation to relocation to  the IKR, Country Information and Guidance , Iraq: Sunni (Arab) Muslims Version 1.0 , August 2016, provides at paragraph 2.4.5:

  • Shia militia are not present in the Kurdistan Region of Iraq (KRI). However, in general, AA (Iraq) found that an Arab is unlikely to be able to relocate to the KRI as Arabs are not generally admitted into the region. However, decision makers should explore whether there are any circumstances, including family, tribal or political links, which enable them to do so.

(8)BA (Returns to Baghdad) Iraq CG [2017] UKUT 00018 (IAC) and Sunni Muslims:

 

BA provides as follows in its Headnote:

“The level of general violence in Baghdad city remains significant, but the current evidence does not justify departing from the conclusion of the Tribunal in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC).

The evidence shows that those who worked for non-security related Western or international companies, or any other categories of people who would be perceived as having collaborated with foreign coalition forces, are still likely to be at risk in areas which are under ISIL control or have high levels of insurgent activity. At the current time the risk is likely to emanate from Sunni insurgent groups who continue to target Western or international companies as well as those who are perceived to collaborate with the Government of Iraq.

The current evidence indicates that the risk in Baghdad to those who worked for non-security related Western or international companies is low although there is evidence to show that insurgent groups such as ISIL are active and capable of carrying out attacks in the city. In so far as there may be a low level of risk from such groups in Baghdad it is not sufficient to show a real risk solely as a perceived collaborator.

Kidnapping has been, and remains, a significant and persistent problem contributing to the breakdown of law and order in Iraq. Incidents of kidnapping are likely to be underreported. Kidnappings might be linked to a political or sectarian motive; other kidnappings are rooted in criminal activity for a purely financial motive. Whether a returnee from the West is likely to be perceived as a potential target for kidnapping in Baghdad may depend on how long he or she has been away from Iraq. Each case will be fact sensitive, but in principle, the longer a person has spent abroad the greater the risk. However, the evidence does not show a real risk to a returnee in Baghdad on this ground alone”.

 

Relevant to the treatment of Sunni Muslims, BA  also states in its headnote:

“Sectarian violence has increased since the withdrawal of US-led coalition forces in 2012, but is not at the levels seen in 2006-2007. A Shia dominated government is supported by Shia militias in Baghdad. The evidence indicates that Sunni men are more likely to be targeted as suspected supporters of Sunni extremist groups such as ISIL. However, Sunni identity alone is not sufficient to give rise to a real risk of serious harm.

Individual characteristics, which do not in themselves create a real risk of serious harm on return to Baghdad, might amount to a real risk for the purpose of the Refugee Convention, Article 15(c) of the Qualification Directive or Article 3 of the ECHR if assessed on a cumulative basis. The assessment will depend on the facts of each case.

In general, the authorities in Baghdad are unable, and in the case of Sunni complainants, are likely to be unwilling to provide sufficient protection”.

BA is clear that Sunni identity alone is not sufficient to give rise to a real risk of serious harm. A claimant might state that they are at risk on return on the basis that they form part of a targeted profession.  Lawyers and Judges in Iraq are  known to be  subject to attacks  based on sectarian lines. US State Report , 2015, Human Rights Practices and Amnesty International Report , Iraq, 2015/2016, provide respectively:

  • “Threats and killings by sectarian, tribal, extremist, and criminal elements impaired judicial independence. Judges, lawyers, and their family members frequently faced death threats and attacks. Lawyers participated in protests demanding better protection from the government against threats and violence. Judges were also vulnerable to intimidation and violence. Corruption or intimidation reportedly influenced some judges presiding over criminal cases at the trial level and on appeal to the Court of Cassation. The Commission of Integrity routinely investigated judges on corruption charges, but there were numerous reports that such investigations were often politically motivated”.

And,

  • “Lawyers representing terrorism suspects faced threats and intimidation by security officials and were physically attacked by members of militias. Judges, lawyers and court officials continued to be attacked and killed by IS and other armed groups”.

Depending on the facts of a particular case,  a  Sunni Muslim lawyer  for example,  taken in combination with other factors,  can be in a position to successfully advance a claim for protection.

 

Conclusion

A claimant originating from one of the  “contested areas”  may advance both an asylum and humanitarian protection claim. The asylum claim may be dismissed, however  it is possible for an appeal to be allowed on  the basis of humanitarian protection and as such, there should be no hesitation in  placing strong reliance upon this  second limb in the alternative.

Currently, it appears therefore, that in combination with  the Home Office’s  own current country policy and information notes( in some parts)  as well as relevant current  country guidance caselaw,  a fully appreciative  Tribunal Judge,  can be convinced to allow  an appeal based on  a claim for Humanitarian Protection.

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