Home Office adamant cogent evidence renders AA(Iraq) largely redundant on security situation

It is clear from initial decision- making through  to  judicial review challenge cases  that the  Home Office have been  angling for many months to have  AA (Article 15(c)) (Rev 2) [2015] UKUT 544 (IAC)  overturned.  This is because having regard to AA(Iraq)2015,  as initially promulgated  and even as recently amended by  AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944, it is still possible  for  Iraqi claimants  relying on claims for Humanitarian  Protection  before the Tribunal  to succeed.  What may be delaying a head -on challenge might be the lack  identification of  an appropriate  case.

 

In  AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944, the  Court of Appeal stated  in July 2017 that since the parties were  agreed as to the error of law in AA(Iraq)2015, 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. 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.

 

Despite the Court of  Appeal  not having  overturned AA(Iraq)2015, the newly amended policy guidance,  Country policy and information note: return/internal relocation, Iraq, September 2017   provides, On 22 June 2017, the Court of Appeal (CoA) in [2017] EWCA Civ 944, [2017] WLR (D) 466 remade one specific point in AA Iraq (see 2.4.4). It effectively replaced paragraphs 204 (8-11). The rest of the Country Guidance remained unchanged from when AA was promulgated in October 2015. However, the Home Office believes that there are very strong grounds supported by cogent evidence to justify not following the Country Guidance in respect of the security situation to the extent set out above”.

 

A relevant blog post  considers the  issues which arose  in the Court of Appeal: Humanitarian Protection: Court of Appeal revises and amends current country guidance AA(Iraq)

Prior to  that having regard to AA(Iraq) 2015,  this blog post Why Shouldn’t I Expect An Iraqi Appeal Based On A Claim For Humanitarian Protection To Be Allowed By The Tribunal?, placing reliance in AA(Iraq) 2015, put forward that “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”.

 

March 2017 Country Information Note on the security and humanitarian situation:

 

In March 2017, the Home Office published guidance Country policy and information note: Security and humanitarian situation, Iraq, March 2017 indicating  that  the security situation in Iraq had  changed since the “ contested’ and ‘non-contested’ definitions were first used.  Therefore, “to avoid any confusion”,  Home Office caseworks were instructed to no longer use these definitions  in the context of the security situation in Iraq. The Home Office stated position was  made clear: “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”.

 

Prior to the March 2017 guidance, Home Office country information and guidance on the security situation in Iraq had been divided into two sections: the ‘contested’ and ‘non-contested’ areas of the country. The:

 

  • ‘contested’ areas were Anbar, Diyala, Kirkuk (aka Tam’in), Ninewah and Salah al-Din governorates;

  • ‘non-contested’ areas were Baghdad governorate, ‘the south’ (Babil, Basra, Kerbala, Missan, Muthanna, Najaf, Qaddisiyah, Thi-Qar and Wasit governorates) and the Kurdistan Region of Iraq (KRI) (Dohuk, Erbil, Halabja and Sulamaniyah governorates).

 

From March 2017, the Home Office stated that the security  situation in Iraq  had changed since AA(Iaq)2015 as  the Upper Tribunal had  in that case considered  evidence up to April 2015. On the basis of that evidence, the  Upper Tribunal found that in areas of Iraq indiscriminate violence was at such a level that substantial grounds existed for believing that a person, solely by being present there for any length of time, faced a real risk of harm which threatened their life or person (thereby engaging Article 15(c) of the Qualification Directive). These areas are:

 

  • Anbar;

  • Diyala;

  • Kirkuk (aka Tam’in);

  • Ninewah;

  • Salah al-Din; and

  • the parts of the ‘Baghdad Belts’ (the urban environs around Baghdad City) that border Anbar, Diyala and Salah al-Din

 

The Home Office position in March 2017 was that, “the situation has changed since then.  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)”.

 

The following blog post considers further issues raised within the  still current Country Information Note of March 2017:Obliterating AA: Home Office decision-makers instructed to no longer use “contested’ and ‘non-contested’ definitions in Iraqi security situations

 

September 2017 Country Information Note on return/internal relocation:

 

On 22 September 2017, other Home office policy guidance  was updated: Country policy and information note: return/internal relocation, Iraq, September 2017.

The Home Office maintain that since AA(Iraq)2015 was promulgated, the security situation has changed. In particular, it is considered that Daesh (Islamic State of Iraq and Syria/the Leavent) have lost territory; Government of Iraq (GoI) and/or associated forces have regained control of some areas;  the level of violence has declined; and Internally Displaced Persons (IDPs) are returning to their areas of origin. In this regards  reference is made specifically to the  March 2017 Country Information Note on Iraq: Security and humanitarian situation.

 

It is considered that internal relocation is, in general, possible to all areas of Iraq except:

 

  • Anbar governorate (but possible to the areas Daesh no longer controls, including the Fallujah, Ramadi and Heet districts),

  • Ninewah governorate,

  • the parts of Kirkuk governorate in and around Hawija, and

  • the parts of the ‘Baghdad Belts’ (the residential, agricultural and industrial areas that encircle the city of Baghdad) that border Anbar, Diyala and Salah al-Din.

 

The September 2017 Country Information Note also summarises as follows:

 

  • The Home office accept that a person cannot be returned or relocated to the areas of Iraq which meet the threshold of Article 15(c) (Anbar (except the parts that Daesh do not control, including the Fallujah, Heet and Ramadi districts), Ninewah, the parts of Kirkuk in and around Hawija, and the north, west and east parts of the ‘Baghdad Belts’)

  • In general, a person can relocate to Baghdad (except the north, west and east parts of the ‘Baghdad Belts’), the parts of Anbar governorate that Daesh does not control (including the Fallujah, Ramadi and Heet districts), Diyala, Kirkuk (except the areas in an around Hawija), Salah al-Din and the southern governorates (Babil, Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit).

  • In relation to feasibility of return, a person can only be returned (to Baghdad) if they have an Iraqi passport (current or expired), or a laissez-passer. If they do not have one of these documents then return is not ‘feasible’. A lack of these travel documents is a technical obstacle to return, and is not a reason itself to grant protection.

  • Decision makers must establish if the person can provide documentary evidence to substantiate their claim that they are unable to obtain the necessary documentation, for example by a letter from the Iraqi Embassy confirming what was submitted by the person to verify their identity but their identity/documentation could not be confirmed/issued.

  • A lack of these travel documents is a technical obstacle to return, but is not a reason itself to justify the grant of international protection.

  • People who originate from the KRI who have been pre-cleared by the KRI authorities are returned to Erbil Airport and do not require a passport or a laissez-passer.

  • A person who does not originate from the Kurdistan Region of Iraq (KRI) will be returned to Baghdad in the first instance. There is no real risk of harm to ordinary civilians travelling from Baghdad to the southern governorates.

  • In general, a Kurd or a person who originates from the KRI can relocate to (or within) the KRI. Non-Kurds generally cannot.

  • Unless they are returned to the KRI, a person will be returned to Baghdad in the first instance. Therefore, when considering internal relocation to the southern governorates (Babil, Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit), decision makers must consider whether the person will be harmed on the journey there from Baghdad. Decision makers must note that the Upper Tribunal in AA(Iraq) 2015 concluded that 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 to engage Article 15(c) of the QD’ (paragraph 117).

  • In deciding whether a person can avoid poor humanitarian conditions, it is critical to determine whether they can acquire (or reacquire) civil documentation.

  • On 22 June 2017, the Court of Appeal in [2017] EWCA Civ 944, [2017] WLR (D) 466 remade one specific point in AA Iraq. It concluded: ‘Regardless of the feasibility of P’s return [our emphasis], it will be necessary to decide whether [a person] has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq’ (paragraph 42 (9)).

  • Decision makers must not, however, conclude that the absence of a CSID (or any other document), or the inability to obtain one (or any other document), automatically entitles a person to a grant of protection. In these circumstances, decision makers must first consider whether a person has family or other support that he can use to avoid destitution; and also bear in mind (if return is currently not feasible) that by the time return does become feasible (i.e. a person obtains a current or expired passport, or a laissez-passer) a person may then possess documents that act as a route to a CSID.

  • Decision makers must consider each case on its merits. A person will be expected to show why they could not reasonably obtain necessary documentation before it is concluded that a person is unable to obtain them.

  • If a person’s return is not feasible, and they have not established a need for protection based on a risk arising from a lack of documents, then decision makers should consider the Discretionary Leave (DL) policy and, if appropriate, grant a person leave in accordance with this policy, pending future reviews of their ability to feasibly return to Iraq.

 

Appreciating the importance and relevance  of  Iraqi  civil documentation in a claim for Humanitarian  Protection:

 

Two of the most important documents used in Iraq are the Iraqi Nationality Certificate (INC) and the Iraqi Civil Status ID (CSID). These documents are also a gateway to other important documents.

 

The Iraqi National ID Card (INID) replaces the INC and the CSID. However, old IDs are still accepted and the INIC is only implemented, so far, in the cities (not the suburbs) of the KRI. If applicable, Home Office decision makers are required to carefully consider whether a person can obtain this document.

 

In AAIraq)2015, the Upper Tribunal held that:

 

‘A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If [a person]…shows there are no family or other members likely to be able to provide means of support, [the person]… is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to [the person]… by the Secretary of State or her agents to assist [the person’s]… return have been exhausted, it is reasonably likely that [person] will still have no CSID’ (paragraph 204, sub-paragraph 11).

 

A person who:

 

  • is unable to replace their CSID or INC; and

  • is unable to obtain support from family members or others

is likely to face significant difficulties in accessing services and humanitarian conditions which may reach the Article 3 threshold. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

 

The Home Office position however is that it is likely that most people who do not possess a CSID, and whose return is feasible (i.e. they possess a current or expired passport, or a laissez passer), will be able to obtain a CSID from the Iraqi Embassy in London, or through proxies in Iraq.

 

How to obtain an Iraqi passport:

 

As a CSID is needed to obtain a passport, a person who has a passport should also have a CSID.

 

In (AAIraq)2015, the Upper Tribunal held that:

 

‘Where return is ‘feasible’ because a person is in possession of a laissez passer (an emergency travel document), a person is likely to need a CSID or Iraqi Nationality Certificate or photocopy of a previous Iraqi passport and a police report noting that it had been stolen’ (paragraph 170).

 

In such cases, the Home Office position is that  it is likely that the person would either possess a CSID or other documentation which enables a CSID to be reissued at the Iraqi Embassy.

 

Sections 6.2 of the September 2017 Country Information Note clarifies how an Iraqi passport can be obtained. It is noted that the website of the Passport Affairs Directorate, General Directorate of Nationality, Ministry of Interior detailed that to obtain an Iraqi passport a person (who is 18 or over) needs to present:

 

  • a form with completed person information, filled out exactly according to the information on the Civil Stats ID (CSID);

  • a CSID;

  • an INC;

  • a Residency card (for those outside Iraq);

  • photographs;

  • a cheque for 25 thousand Iraqi Dinars (about £16)

  • to an Iraqi consulate, where they will also take a person’s fingerprints

 

 

What is a Civil Status ID( CSID) and how to obtain one:

 

In Arabic the Civil Status ID (CSID) card is called Bitaka shakhsiyeh, but it is also referred to as Bitaqa hawwiya, Al-Bitaqat al-Shikhsiya, or Jensiya.

 

The CSID is a form of photo identification. Sections 5.4.2 to 5.4.4 of the September 2017 Country Information Note  clarify what a CSID should contain.

 

CSID cards are issued by the Ministry of Interior, Iraqi Civil Card Directorate. It is the ‘basic’ ID card and ‘main card’ for identification in Iraq and should be held by all citizens.

 

The CSID card is considered the most important personal document and is used for all contact with public authorities, health care, social welfare, schools and for the purchase and sale of homes and cars. The CSID card is also required when applying for other official documents, such as passports.

 

Sections 5.4.9 to 5.4.11 of the September 2017 Country Information Note clarify what is required to obtain a CSID in Iraq.

 

Acquiring a CSID in Iraq if the person is not from an Article 15(c) area: Sections 2.4.20 to 2.4.23 of the September 2017 Country Information Note set out how a person acquires a CSID in Iraq if the person is not from an Article 15(c) area.

 

The Upper Tribunal in AA(Iraq)2015 held:

 

‘… [T]hat 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 (paragraph 186).

 

A person from an area that does not breach Article 15(c) who needs to replace their CSID and INC will, in general, be able to go to their local Civil Status Office/General Nationality Office in their place of origin to replace them. A person returned to such an area on a current or expired passport will, in general, be able to reacquire their CSID in Iraq.

 

Where a person is:

 

  1. from an area of Iraq where the level of indiscriminate violence does not breach Article 15(c);

  2. does not possess a CSID; and

  3. is being returned on either a laissez passer or European Union letter (EUL) (currently only in certain cases to Erbil)

 

decision makers must establish:

 

  • what identity documentation the person possesses;

  • whether they will be able to reacquire a CSID;

  • what family members or other contacts they have, where in Iraq they are and if they will be prepared to ‘vouch’ for them in reacquiring documents;

and, if appropriate, whether the person knows the page and volume number of the book holding their civil status information, or that of family members.

 

The September 2017 Country Information Note states that sources have confirmed that in some cases an INC cannot be issued by a person’s local General Nationality Office. In these cases, a person may need to obtain a replacement through the Ministry of Interior in Baghdad.

 

Home Office decision makers are required to carefully consider whether a person returned to Erbil using an EUL can acquire their CSID in Iraq.

 

Acquiring a CSID in Iraq if the person is from an Article 15(c) area: Sections 2.4.24 to 2.4.27 of the September 2017 Country Information Note set out   whether it is possible  for a person to acquire a CSID in Iraq if the person is from an Article 15(c) area.

 

It is acknowledged that it is not  known whether registration records held in some areas that breach Article 15(c) are intact or accessible.

 

The Upper Tribunal in AA(Iraq)2015 held that:

 

‘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’ (paragraph 187).

 

And that:

 

‘… in seeking to reacquire documents in Iraq, such persons would need either a passport (current or expired), or, if they did not have such, know the page and volume number of the book holding their information (and that of their family members) and/or have family members or other individuals who are prepared to ‘vouch’ for them’ (paragraph 186).

 

The September 2017 Note states that information from the UNHCR in May 2016 suggests that alternative CSA offices for certain parts of Ninewah have been set up elsewhere in Iraq, including in Dohuk, Kerbala and Najaf.

 

Replacing a CSID: Sections 6.3 to 6.3.16 of the September 2017 Note  sets out information  on how  to obtain a replacement CSID.

 

Obtaining a CSID in the UK: Sections 2.4.14  to  2.4.16  of the September 2017 Note sets  how a CSID can be obtained in the UK.

 

In AA(Iraq)2015, the Upper Tribunal held that:

 

‘[i]t is possible for an Iraqi living in the UK to obtain a CSID through the consular section of the Iraqi Embassy, 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’ (paragraph 177).

 

Information from the UNHCR in May 2016 suggests that a power of attorney cannot be provided for IDPs in Baghdad and that someone will need to present themselves in person to re-obtain their CSID.

 

If a person is from an area that does not breach Article 15(c), he is expected to explore whether he can use a proxy to replace their CSID or INC. It will not be reasonable to expect a person to use a proxy to reacquire documents from their place of origin if that place is in an area where the level of indiscriminate violence is at a level that breaches Article 15(c) of the Qualification Directive.

 

How to obtain an Iraqi Nationality Certificate (INC):

 

Sections 5.5.1 to Section 5.5.5 of the September 2017 Information Note clarify why an INC is required and how it is issued.

 

The Nationality Certificate (INC) in Arabic is called shahadat jinsiyya or shahdat al-Jinsiya al-Iraqiya. Essentially, the document proves that someone is an Iraqi citizen.

 

The INC is a booklet upon which the picture of the owner is fixed. The cover is black. The INC proves that a person was an Iraqi citizen

 

Sources state that the INC is necessary when applying for work in the public sector and to access other public services. It is also required to apply for other documents, such as passports and birth, marriage and death certificates. This was partially corroborated by a UNHCR Country of Origin report on Iraq dated 2005, which noted that the INC, together with the CSID, were ‘requested for any kind of interaction with the authorities, such as an application for a food ration card, school registration, and the issuance of death and birth certificates.

 

Children can get an INC from an early age, but it is common to get them from the age of 12.

 

According to Nezar Rahmatollah Aziz, General Director of Passport and Nationality in the Kurdistan Region, INCs were issued at the General Directorate of Nationality’s local offices, found in all governorate capitals, although the certificates were only produced in Baghdad. This was corroborated by information provided from UNHCR Baghdad in November 2011.

 

Information in relation to the documents a person needs to apply for an INC is referred to between Sections 5.5.6 to 5.5.9 of the September 2017 Information Note.

 

Further information on  issuance or replacement  of an  INC  is  contained in Sections  6.4 to 6.4.6  of the September 2017  Information note.

 

The Iraqi National ID Card (INIC):

 

Sections 5.6.1 to 5.6. 7 of the September 2017 Country Information Note clarify how an INIC is issued and what information it contains.

 

The Iraqi National ID Card is issued by the Iraqi Ministry of Interior. It replaces the Nationality Certificate and Civil Status ID.

 

Old IDs are still accepted and the Iraqi National ID card is only implemented, so far, in the cities not suburbs in the KRI. The plan for the new card is a merger of both the CSID (Hawya Ahwal Al mdani) and the Iraqi Nationality (Jinsiya) in one solid document. The aim is to complete the process by end 2018. By end 2018 the new ID will be used instead of the current information card (Bitaqat Al Ma3lumat). The aim is to renew, update and clean the old database system to stop attempts of duplications and forgery; and to unify all different type and issued ID for both regional and central government for the period of 1991 – 2003 then 2003 -2016.

 

Internal Relocation- entry to the Kurdistan Region of Iraq (KRI):

 

Sections 7.2 to 7.2.3 of the September 2017 Information Note set out information  in relation to  Iraqi citizens who want to apply for a residence permit in the  KRI and clarifications as  regards sponsorship.

 

In relation  to economic opportunities in the KR, the September 2017 Note clarifies:

 

“7.2.4 The source also commented on economic opportunities in the KRI:

 

‘Three sources said that the number of job opportunities in KRI is very limited for the host community as well as for IDPs. In this respect, ERC stated that, due to the financial crisis in KRI, even people from the host community are losing their jobs. Three sources indicated that the private sector is affected by the crisis, including the construction business and the oil business. Being among these sources, IRC added that many jobs in the oil sector are occupied by foreign labour.

‘When asked in which fields IDPs typically find jobs, three sources said that IDPs who manage to get a job will often find it in low-skilled fields, for instance construction or casual work in agriculture or restaurants. IRC further stated that IDPs with an education may be able to find work with NGOs; however, the number of jobs available in this field is low.

‘It was stated by three sources that the public sector is not adding new jobs, and three sources pointed to the fact that the Kurdistan Regional Government (KRG) has not paid salaries to government employees since June 2015. IOM said that it is not possible to live on a salary of a civil servant under the Kurdistan Regional Government (KRG) administration”.

Various sources stated that publicly employed IDPs are still supposed to receive their salary from the central government in Baghdad. Two sources, however, said that as of September 2015, there is a delay in the payment.

‘Different figures were given by three sources on the current unemployment rate in KRI, ranging from 6.5 percent to 35 percent.

‘Three sources pointed to competition for jobs in KRI between host community members, IDPs and Syrian refugees. Three sources said that IDPs are typically willing and able to work for lower salaries than members of the host community. IOM stated that they, as an organisation, are facing difficulties to find employment for Kurdish returnees who went back to KRI from Europe, as many companies downsize their workforce.

 

Internal Relocation-Entry restrictions in Baghdad and the south: 

 

Entry restrictions in Baghdad and the South are considered between Sections 8.2.1 to 8.2.7 of the September 2017 Note in relation to population movement limitations, documentation and sponsorship requirements, and checkpoints barring IDP entry, as well as the overall lack of humanitarian access, safety, and support afforded to IDPs and other conflict-affected populations countrywide.

 

 

Conclusion

 

It is important to be aware of the relevance of Iraq  civil documentation. This is because in deciding whether a person can avoid poor humanitarian conditions, it is critical to determine whether they can acquire (or reacquire) civil documentation.  In most Iraqi claims, the argument on behalf  of claimants is usually that they are  unable to acquire the documentation.

 

It is clear that despite the Home Office’s current  position, AA(Iraq) 2015 is still applicable  and un-overturned country guidance caselaw. It is however noteworthy that 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)  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).

 

In decision- making,  the Home office will focus on maintaining  that the security  situation in Iraq  has changed since AA(Iaq)2015  was  heard and decided.  They will also  insist that  return and relocation is possible in areas  not caught by the exceptions  in their September 2017 Country  Information Note. The Home Office  very rarely  serve their own Country  Information Notes upon the Tribunal or an appellant- it is not clear why. The  updated Home Office Country Information Notes will  therefore always  need to be  presented  to the Tribunal in a given case.  In such circumstances,  despite AA(Iraq)2015 still being relevant, it is for  an appellant  to seek to provide updated relevant background evidence from reliable sources to counter the  Home Office  Country Information  Notes. Where permitting, instructing a relevant  Country Expert may also be necessary.

 

 

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