Instructions to Home Office decision-makers are clear: AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) is no longer to be followed and the mantra is to depart, depart, depart from it.
The Home Office have also thrown BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC) (23 January 2017), into the mix to take the position that “BA, reaffirmed that conditions in Baghdad (city) do not breach Article 15(c)….. BA considered violence in Baghdad only; it did not consider violence in other parts of Iraq)”.
The new Notes further state;
“1.2.2 However, the security situation has changed since these definitions were first used. Furthermore, sources sometimes refer to ‘contested’ (or ‘disputed’) areas as the areas where sovereignty or control is disputed between the Government of Iraq (GoI) and the Kurdistan Regional Government (KRG). Therefore, to avoid any confusion, the ‘contested’ and ‘non-contested’ definitions in the context of the security situation in Iraq will no longer be used”.
And,
“The decline in IDPs reflects the return of some civilians to their home areas following the defeat of Daesh (Islamic State) in some areas, particularly in the Fallujah, Heet and Ramadi districts of Anbar and the Tikrit district of Salah al-Din”
Also,
“However, the security situation has changed since April 2015, the point up to which AA considered evidenceDaesh has suffered, and continues to suffer, significant territorial losses. Daesh now only control:
parts of Mosul and the surrounding areas;
Tal Afar and surrounding areas in northern Ninewah;
Hawija and surrounding areas in Kirkuk governorate; and
parts of west Anbar. For the reasons given above, there are strong grounds to depart from AA’s assessment of Article 15(c)…. Parts of Anbar that Daesh no longer occupies (including the Fallujah, Heet and Ramadi districts), Diyala, Kirkuk (except Hawija and the surrounding areas) and Salah al-Din no longer meet the threshold of Article 15(c). Ninewah and most of Anbar, however, still meets the threshold of Article 15(c) …. In general, a person can relocate to the areas which do not meet the threshold of Article 15(c)”.
The stated position is that, “In general, the humanitarian situation is not so severe that a person is likely to face a breach of Articles 15(a) and (b) of the Qualification Directive/Articles 2 and 3 of the ECHR, However, decision makers must consider each case on its merits. There may be cases where a combination of circumstances means that a person will face a breach of Articles 15(a) and/or (b) of the Qualification Directive/Articles 2 and 3 of the ECHR on return. In assessing whether an individual case reaches this threshold, decision makers must consider:
where the person is from (as humanitarian conditions are more severe in some areas than others, and this may also impact on whether the person becomes an IDP on return, if they were not already prior to leaving the country);
a person’s individual profile, including, but not limited to, their age, gender and ethnicity;
whether the person can access a support network
Previous Home Office Policy Notes of August 2016 made extensive references to AA in relation to the following, amongst other issues:
Feasibility of return to Iraq( not to Iraqi Kurdish Region( IKR)
Internal Relocation within Iraq( other than Iraq Kurdish region)
Internal Relocation to the Iraq Kurdish region
The Home Office having now made their position clear in relation to AA, the New Notes correspondingly do not delve into the issue of re-documentation etc, thus raising concern that where these issues are not addressed properly or at all within the new Notes, then the only sensible course of action is to inevitably revert to AA.
In relation to spontaneous returns to previous Daesh-held areas, the Notes themselves seem to counter the Home office position as they state:
“Conditions in places of return
9.9.1 The UNHCR, in their November 2016 paper on returns, observed that spontaneous returns to previous Daesh-held areas are taking place ‘despite conditions not being suitable for returns in safety and dignity’. The source continued:
‘ISIS has reportedly routinely mined and booby-trapped homes, public places and roads in areas from which it has retreated, and as a result casualties among returnees have been reported. Returnees are often faced with destruction, damage or secondary occupation of homes, damaged or non-existent basic infrastructure, slow restoration of basic services and lack of livelihood opportunities. Protection monitoring in IDP camps indicates that a substantial number of IDP families prefer not to return to their areas of origin until services such as water, electricity, schools and medical facilities are restored. IDPs also expressed concerns over threats to security they would face upon return, including by ISIS, or the ISF and associated forces.’
The Home Office clearly want AA overturned or at least departed from until further guidance is promulgated. The current Notes are unequivocal:
“2.3.26 The Court of Appeal, in the case of SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012), heard on 20-21 June 2012, stated that ‘decision makers and tribunal judges are required to take Country Guidance determination into account, and to follow them unless very strong grounds supported by cogent evidence, are adduced justifying their not doing so’ (paragraph 47)”.
The expectation is that even more refusals of Humanitarian Protection claims from Iraqi claimants will be forthcoming from the Home Office, however First Tier Tribunal Judges appear hesitant currently to depart from AA where a claim is largely credible and where updated background evidence is provided to counter the Home Office position.
