Humanitarian Protection: Court of Appeal revises and amends current country guidance AA(Iraq)

 

Although the Court of Appeal  in  AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017) undertook a painstakingly long and  arduous  analysis of the relevant statutory provisions and caselaw  on the arising  jurisdictional  point, for current purposes  it is important to note that the current  Iraq country guidance caselaw has been amended.

 

The Court of Appeal could not help but observe that the case presented the unusual situation where both the Appellant and the Secretary of State agreed that  there  was an error in the  Country Guidance Case, AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC).

 

The parties agreed before the Court of Appeal  that the appeal should be allowed albeit on a narrow ground.

 

THE ERROR:

 

The point in issue concerned an Iraqi Civil Status Identity Document (“CSID”).

 

The Appellant argued that the Upper Tribunal erred in paragraph 170 of its judgement, in concluding as follows:

 

“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.”

 

The Court of Appeal noted that that finding was the basis of Sections B and C of the formal guidance given by the Upper Tribunal at the end of their judgment, a part of paragraph 204. The critical passages read:

 

“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 [emphasis added] that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.”

 

OBSERVATIONS ON CIVIL STATUS IDENTITY DOUCMENTS (“CSID”)

 

The Court of Appeal noted that in AA, the Upper Tribunal had equated the CSID simply to a return document, however the Court said that  the position with a CSID is different. It is not merely to be considered as a document which can be used to achieve entry to Iraq. Rather, it may be an essential document for life in Iraq. It is for practical purposes necessary for those without private resources to access food and basic services. Moreover, it is not a document that can be automatically acquired after return to Iraq. In addition, it is feasible that an individual could acquire a passport or a laissez-passer, without possessing or being able to obtain a CSID. In such a case, an enquiry would be needed to establish whether the individual would have other means of support in Iraq, in the absence of which they might be at risk of breach of Article 3 rights.

 

 

NO NEED FOR REMITTAL TO UPPER  TRIBUNAL

 

The Court of Appeal stated that since the parties were  agreed as to the error of law in this case, and what needed to be done to correct it, there  was no point in remitting the case to the Upper Tribunal. The correction to the country guidance  could be made by the Court of Appeal itself.

 

It was noted following submissions as to the best procedure to adopt, that  the parties were  agreed that the safest course  was to append to the Court of Appeals’ judgment a complete revised Country Guidance, with the amended text highlighted. By this means, the revisions would be evident, but practitioners would have ready access to the Guidance in one document, avoiding the inconvenience and risk of confusion which might otherwise arise.

 

The amended country guidance therefore appears as the Annex to the Court of Appeal’s  judgment. The Court of appeal emphasized  that Paragraph 170 of the Upper Tribunal’s judgment should be read in the light of and consistently with the amended guidance.

 

 

WHAT HAS BEEN REVISED AND AMENDED

 

The amendments are as follows in Sections B and C of the Headnote to AA(Iraq) 2015:

 

Section B of the headnote- Documentation and feasibility of return (excluding IKR):

 

  • Paragraph 7 in Section B of the headnote has had the following last words removed: “given what is known about the state of P’s documentation”.   These have been substituted with :on account of a lack of any of those documents”.

  • A new paragraph 8 has been added to section B of the headnote and this states: “8. 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.

 

 

Section C. The CSID:

 

The heading to Section  C to the headnote  in AA previously read as follows: “C. Position on documentation where return is feasible “. The heading now simply reads  The CSID.

 

The following paragraphs in Section C to the headnote have been removed entirely :

 

  • 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.

 

What used  to be  the old paragraph  11 is now paragraph  9 however  the following  first  few words have been removed: “Where P’s return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to”.

 

The removed words have been replaced with : “Regardless of the feasibility of P’s return, it will be necessary to”.

 

Since the numbering of the old paragraphs has changed in light of the addition and removal of paragraphs,  Section C of the headnote now  runs only to  paragraph   11. There is no longer paragraphs  12 and 13 to the  revised Headnote.

 

 

CONCLUSION

 

AA still stands as current country guidance in relation to humanitarian  protection claims from Iraqi claimants. The  Court of Appeal’s revisions and  amendments are not such as to defeat  the success  of such claims.

 

As noted in the blog post, Obliterating AA: Home Office decision-makers instructed to no longer use “contested’ and ‘non-contested’ definitions in Iraqi security situations, “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”.   It is however glaringly obvious that the Secretary of State’s  current March 2017  Country Information Notes appear blindingly  at odds with existing un-overturned country guidance caselaw.

 

It is still possible to succeed in an Iraqi humanitarian protection  appeal  having regarded to sufficiently resourced  and researched  up to date  background evidence to counter the Home Office’s currently  published position that, Parts of Anbar that Daesh no longer controls or contests (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).”

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