So, has a High Court Judge really gone ahead and done what the Home Office has been wanting them to do these past months, ie indicate some sort of or indeed wholesale “departure ” from current country guidance AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC)?
Sir Ross Cranston sitting as a Judge of the High Court has stated in Amin, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2417 (Admin) that “Kirkuk is no longer a contested area”.
The outcome in Amin however merely seems a blanket acceptance of the Secretary of State’s current County Report, Country policy and information note: Security and humanitarian situation, Iraq, March 2017 .
It took a short judgement, littered with a few references to some caselaw and a seeming cursory approach to recent Home Office Country Reports on Iraq, for the Court to simply conclude that Kirkuk is no longer a contested area. No reference is made within the judgment to actual relevant background evidence within the March 2017 Notes which justify the conclusion that Kirkuk is no longer a contested area. As matters stand, the conclusion to be drawn therefore is that the High Court Judge appears on this occasion to have simply said: The Secretary of State has presented this and therefore I accept it.
On the other hand, the quality of the background evidence that formed part of the initial representations submitted by the claimant is not clear within the judgement. There is a reference to the claimant providing a “short letter” to the Secretary of State but that the Home Office had the “latest evidence” whereas the claimant “had provided nothing further on this point”.
It is however the submissions on the leave application to the Court of Appeal made on the claimant’s behalf that make the most interesting reading and not to be missed. Presented most respectfully, however the point was made clear: the High Court Judge‘s treatment and approach of the issues was way off the mark.
Background Summary:
The claimant an Iraqi national, a Kurd had been resident in the UK for several years but became subject to deportation proceedings.
On 26 April 2017, the Secretary of State set removal directions for the claimant’s deportation in early May to Baghdad via Istanbul. On 27 April, the claimant sent a “short letter” requesting among other issues that he not be returned to Iraq as it was not safe. The Secretary of State treated the claimant’s letter as raising further representations. By decision of 2 May 2017 the Secretary of State rejected the claimant’s submission that Iraq was unsafe. The claimant sought to challenge the decision of the Secretary of State by way of judicial review.
The Secretary of State’ position:
In her decision, the Secretary of State referred to the decision of AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) as well Country Policy and Information Note: Iraq, May 2017. The refusal decision quoted from both these and rejected the claimant’s statement that Iraq was not safe. This was rejected in line with previous appeal findings, the judgment in AA and the “latest available country evidence”.
The Secretary of State’s position was that:
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The findings available to the Secretary of State did not support the position that the security situation throughout Iraq is such that it can be said that the claimant would be at risk merely by being present there.
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It was accepted that Kirkuk was formerly under the control of ISIS and was considered to be a contested area. It was previously accepted that the security situation in Kirkuk would put the claimant at risk of serious harm. However, the “latest evidence” was said to clearly demonstrate that this was no longer the case. It was said that the claimant “had provided nothing further on this point”. It was not therefore accepted that this would have a realistic prospect of success before an immigration judge. It was considered that no reasonable cause has been given to accept the claimant would be at real risk of indiscriminate violence merely by being present in Kirkuk.
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It was noted that in previous appeals it had been held that Baghdad was safe and that the claimant could return there. There was nothing in the subject caselaw or “available country evidence” that would challenge this finding. As such, it was not therefore considered that relocation to Baghdad was unreasonable in the circumstances.
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The decision further stated that consideration would be given to the country guidance case of AA. The claimant had been issued with a laissez-passer, and consideration had been given to the availability of a Civil Status Identity Document (“CSID”). There was no evidence to suggest that the claimant had any identity document but it was considered that, since the Iraqi authorities had agreed to issue him with the travel document, that would be sufficient evidence of identity.
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The refusal decision also stated: “That aside, even if it were not the case, it is considered that you could still obtain such documentation from Kirkuk’s Civil Service Affairs Office. As above, it is noted that Kirkuk is no longer contested or under the control of non-state actors. It is not considered that you would be at risk in returning there. It is considered on the information to hand and as observed in para.12 of AA, there is nothing to suggest that you could not obtain a CSID from Kirkuk’s Civil Service Affairs Office. It would appear that given the Iraqi authorities willingness to issue a travel document, there is reasonable cause to accept that they would be willing to issue you an identity document should you ask for it.”
The Claimant’s contentions:
It was argued on the Claimant’ s behalf that:
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The Secretary of State was in error in her approach to the country guidance cases, in particular AA. The claimant was Kurdish and of the Sunni faith; he was a Kurdish Sorani rather than an Arabic speaker; that he and his family originate in Kirkuk; that he had no family ties in Baghdad; that he had never previously resided there; and that he had now been outside of Iraq for more than 12 years. With this background, what was challenged was the removal directions to Baghdad, and in particular the safety and reasonableness of Baghdad as a seat of internal relocation. The Claimant also challenged the Secretary of State’s disposal of the fresh claim on the basis of her repudiating the findings of AA, in particular in relation to Kirkuk as contested territory.
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In his letter of 27 April 2017, the claimant had stated that the capital was not safe for him. Reference was made to the passage in AA requiring a case-sensitive appraisal of the safety and reasonableness of relocation by reference to the relevant criteria in AA. It was submitted that nowhere in the decision letter did the Secretary of State undertake such an assessment. In failing to do so, she rendered her decision perverse by excluding from consideration the same material which an immigration judge was duty-bound to consider. A case-sensitive application of the criteria to the facts founded the case, that relocation would be unreasonable.
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In relation to the CSID, contrary to the position advanced by the Secretary of State, this would not be readily obtainable on the basis of the laissez-passer. The Secretary of State’s assertion in the letter of 2 May 2017 that there was nothing to suggest that the claimant could not obtain a CSID from Kirkuk’s Civil Affairs Office was contrary to what was stated in AA: that for persons from contested territories such as Kirkuk access to a CSID would be severely hampered. It was unlawful for the Secretary of State to ignore what had been stated in AA given that a First-tier Tribunal judge would be bound to apply it.
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Further, the Secretary of State had failed to make reference to the country guidance case of BA, which was a material omission since it enhanced the claimant’s contention that return to Baghdad would be unsafe given the threat of kidnapping, given that the appellant was returning having been absent for over 12 years, coupled with his Sunni faith and having no close ties in the capital.
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It was submitted overall, that if the Secretary of State had considered the issues with the anxious scrutiny required, she would have concluded that there was a realistic prospect of an immigration judging concluding that there was a fresh claim.
What the Court summarised as relevant for consideration on the issue:
The Court noted the following:
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That in 2017, the Upper Tribunal (Immigration Asylum Chamber) gave further country guidance: BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC). This stated that the level of general violence in Baghdad city remains significant but the current evidence did not justify a departure from the conclusion in AA. The Upper Tribunal stated that kidnapping was a significant and persistent problem and said this: “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.”
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It was noted that the Tribunal in BA then turned to sectarian violence: “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, Art.15(c) of the Qualification Directive or Art.3 of the ECHR if assessed on a cumulative basis.”
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Reference was made to the August 2016 guidance “Iraq: Return/internal relocation” which stated at para.2.4.18 that, due to the circumstances of armed conflict in the contested areas, it might not be reasonable to expect a person to use a proxy to reacquire documents from their place of origin. It was also not known as to whether registration records held in the contested areas were in tact or accessible.
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Reference was then made to the Country Policy and Information Note “Iraq: security and humanitarian situation” March 2017 which states at para.2.3.21: “However, the security situation has changed since April 2015, the point up to which AA considered evidence. Daesh has suffered, and continues to suffer, significant territorial losses. Daesh now only control:
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parts of Mosul and the surrounding areas;
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Tal Afar and surrounding areas in northern Ninewah;
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Hawija and surrounding areas in Kirkuk governorate; and
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parts of west Anbar
So what reasoning was applied by the Court in dismissing the claim?
The reasons for dismissing the Claimant’s claim are contained in two simple paragraphs of the judgment:
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“62.Earlier, I quoted from para.19 of the Secretary of State’s decision letter. I do not regard that paragraph as being in error. AA states that, as a general matter, it is not unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad. BA does identify the threat of kidnapping and of other matters such as sectarian recrimination in Bagdad, but it is obvious from the passages I have earlier in the judgment that these risks are not expressed in absolute terms”.
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“63.As far as the position in Kirkuk is concerned, and the requirement for the claimant to return there to obtain a CSID, the Secretary of State was entitled to take the realities on the ground there into account. Kirkuk is no longer a contested area. In my view, country guidance cases must give way to the realities, a point recognised by the Court of Appeal in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 at para.47. There are apparently still dangers there, but nothing like the position as when AA was decided. That being the case, I cannot regard the passages in the Secretary of State’s letter as regards the claimant’s ability to obtain a CSID as being flawed”.
In combination with other various issues raised, the Court concluded that the Secretary of State’s decision was not Wednesbury unreasonable. The Secretary of State’s decision on the claimant’s representations in relation to paragraph 353 of the Immigration Rules was lawful and rational.
Conclusion
The judgment in Amin cannot with any confidence be considered to have resolved issues as regards the continued viability of AA (Iraqi). Of course AA still stands as relevant country guidance caselaw.
Meanwhile however, Amin is now a real opportunity for the Home Office to refer to it in deciding claims for Humanitarian Protection from Iraqi nationals in particular those originating from Kirkuk. The key is to seek to counter the real basis of the March 2017 Country Information Notes by in turn producing background evidence of real substance.
It seems apparent from how the application for leave to appeal to the Court of Appeal is clothed, that there is a real issue to be taken up with the Judge’s approach and the Secretary of State’ s current position in relation to the security conditions in Iraq; the quality of background evidence; relocation to Baghdad and the issue of documentation.
Where the litigation in Amin continues, it’s back once more to the Court of Appeal: barely 4months after AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 was published.