Just when the Home Office thought Iraqi protection claims were well and truly buried, resurrection emanates from the Upper Tribunal

The Home Office has for well over a year been angling to throw a spanner in the works so far as continued reliance upon the guidance flowing from AA (Article 15(c)) ( Iraq CG [2015] UKUT 544 (IAC) is concerned.   The Secretary of State’s general position as set out in currently published Country Information Notes is that the security situation in Iraq has significantly improved. As is clear from those Notes, he has persistently sought to consign to the legal dustbin, the viability of continued reliance upon AA (Iraq )2015.

 

The Secretary of State’s currently published Information Notes on Iraq have been intended to bury the effect of AA(Iraq)2015, which has opened the doorway to a good number of Iraqi claimants succeeding in the Tribunal in their claims for protection owing to the security conditions in Iraq.

 

After Amin, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2417 (Admin), it was thought that perhaps the Secretary of State would get his way and that sooner rather than later, AA(Iraq)2015 would be overturned. In Amin, Sir Ross Cranston sitting as a Judge of the High Court concluded that  “Kirkuk is no longer a contested area”.  He  stated as follows:

 

“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.”

 

Amin was published only about two months after the Court of Appeal had in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017) amended the country guidance AA(Iraq) 2015 via an Annex to the Court of Appeal’s  judgment. One of the points before the Court of Appeal concerned the Iraqi Civil Status Identity Document (“CSID”). The Court of Appeal emphasized  that Paragraph 170 of the Upper Tribunal’s judgment in AA(Iraq) 2015 should be read in the light of and consistently with the amended guidance. The Court of Appeal noted that since the parties were agreed as to the error of law in the 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 Upper Tribunal. As regards the best procedure to adopt, the parties were agreed that the safest course was to append to the Court of Appeal’s judgment a complete revised Country Guidance, with the amended text highlighted. It was considered that 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.

 

AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) is important new Country Guidance caselaw in the consideration of Iraqi Humanitarian Protection claims. If the Secretary of State was of the view at the onset of litigation that the Upper Tribunal would expressly overturn AA (Iraq)2015 and uphold his position as set out in his current published March and September 2017 Country Information Notes, he was wrong.

 

The Secretary of State’s position as set out within those Notes was intended to sound the death knell for Iraq claims for protection. Rather than cement the Secretary of State’s position however, the Upper Tribunal in AAH(Iraq) 2018, instead resurrects to a good extent the viability of Iraqi protection claims- this is despite the particular Claimant himself, AAH, a Kurd, not succeeding in his appeal having regard to the particular facts of his case.

 

AAH(Iraq) 2018 makes it clear, among other issues, that AA(Iraq) 2015 guidance still holds good but that the focus of their judgement is whether Iraqi Kurds can internally relocate to the IKR:

 

“2. We are not concerned, in this decision, with whether the guidance given in AA (Iraq) in respect of Article 15(c) holds good; this appeal has proceeded on the assumption that it does. Nor are we asked to consider the position of Arab Iraqis, since the parties are in agreement that for this group, there is in general terms no reasonable internal flight alternative to the IKR. This case is primarily concerned with whether Iraqi Kurds can internally relocate to the IKR”.

 

PREVIOUS BLOG POSTS ON IRAQI CLAIMS

 

Previous blog posts on Iraqi claims are set out below:

 

 

THE STARTING POINT- AA(IRAQ) 2015

 

In AA (Article 15(c)) ( Iraq CG [2015] UKUT 544 (IAC), 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 were:

 

  • 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 Upper Tribunal in AA (Iraq) 2015 also held that: ‘A Kurd (K) who does not originate from the IKR [Iraqi Kurdistan Region] 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. ‘Whether [a Kurd]…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 Erbil 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’ (paragraph 204, sub-paragraphs 19-20)

 

In AA (Iraq) 2015, the Upper Tribunal further held that: ‘As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area [an area considered to reach the Article 15(c) threshold] to relocate to Baghdad City or (subject to paragraph 2 above [i.e. the parts that are considered to reach the Article 15(c) threshold]) the Baghdad Belts’ (paragraph 204(14)) and that ‘the number of persons for whom it is not reasonable or unduly harsh to relocate to Baghdad is likely to be small’ (paragraph 153).

 

 

CURRENT PUBLISHED HOME OFFICE COUNTRY INFORMATION NOTES:

 

Current published Home Office Country Information Notes will remain on the Home Office website until they are amended. The Notes will therefore continue to be relevant in the meantime for presentation before the Tribunal but to be supplemented with up to date background evidence including the Upper Tribunal’s approach as set out in AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018).

 

Country policy and information note: Security and humanitarian situation, Iraq, March 2017, states relevantly:

 

“1.2.1 Previous Home Office country information and guidance on the security situation in Iraq had been divided into two sections: the ‘contested’ and ‘noncontested’ 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).

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.

………………

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).

2.3.27 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).

………………………………………

3.2.3 However, decision makers should consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at enhanced risk.

3.2.4 In general, a person can relocate to the areas which do not meet the threshold of Article 15(c)”.

 

Home Office Country policy and information note: return/internal relocation, Iraq, September 2017 states:

 

“2.2.1 In the country guidance case of AA (Article 15(c)) (Rev 2) [2015] UKUT 544 (IAC) (30 October 2015) (hereafter referred to as ‘AA Iraq’) – which replaces all other Country Guidance on Iraq – the Upper Tribunal held that internal relocation is possible, in general, to the areas that do not meet the threshold of Article 15(c) of the Qualification Directive (QD).

 

2.2.3 Since AA Iraq was promulgated, the security situation has changed. In particular:

 

 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 See the country  policy and information note on Iraq: Security and humanitarian situation.

2.2.4 Therefore, internal relocation is, in general, possible to all areas of Iraq except:

 

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

b.Ninewah governorate,

c.the parts of Kirkuk governorate in and around Hawija, and

d.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.

These areas are still assessed as meeting the Article 15(c) threshold.

2.2.5 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 CONSOLIDATED APPROACH : AAH (IRAQI KURDS – INTERNAL RELOCATION) (CG) [2018] UKUT 212 (IAC)

 

(1). Current security situation:

 

AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) clarifies the current security situation in Iraq as follows:

 

“11. In 2014 the Iraqi Army fell back in the face of Islamic State of Iraq and the Levant (ISIL) advances and this permitted the KRG to once again extend its reach, this time sending peshmerga into many areas in the disputed territories, notably Kirkuk, where they formed the vanguard of the fight against ISIL.

 

12.In September 2017 the KRG held a referendum on whether the IKR should declare independence; the population voted overwhelmingly in favour. The Government of Iraq (GoI) declared the referendum to be illegal and unconstitutional. Baghdad responded by taking punitive measures against the authorities in Erbil, such as banning international flights directly into the IKR. Forces aligned with the GoI were ordered to enter, and re-take key territory including Kirkuk and its oil fields. Although the PUK peshmerga that had held Kirkuk retreated, there were elsewhere numerous clashes between Kurdish forces, Iraqi Army units and associated Shi’a militias. These reached their peak in October 2017 when fierce fighting led to the large scale displacement of civilians throughout the border area. In Tuz Khurmatu, a town in Salahadin, tens of thousands of Kurdish civilians were displaced, with their homes and shops being allegedly looted and destroyed by GoI troops; Human Rights Watch report that at least 51 civilians were killed. Dr Fatah has been informed by fieldworkers in Ninewa that Shi’a militias have displaced hundreds of Kurdish families and destroyed homes. These groups, primarily Hashd al-Shaabi, have impeded the work of international humanitarian organisations and targeted minorities such as the Yezidis; the same militia is reported to be occupying Kurdish neighbourhoods in Kirkuk where they patrol the streets in armed vehicles and harass civilians. Military forces on both sides remain mobilised and ‘combat ready’.

 

13.The position today is that the KRG and the GoI remained locked in territorial dispute over areas in Ninewa, Salahadin, Diyala and particularly in Kirkuk. To summarise the situation in these disputed territories Dr Fatah adopts the language used by the United States’ Institute of Peace, stating that they are characterised by a “tangled web of administrative and security arrangements between the Iraqi government and the Kurdish regional authorities that sit atop poorly defined internal boundaries and amid a toxic legacy of mistrust”. The international community have, for the most part, condemned the independence referendum as destabilising and unnecessary. Turkey and Iran, neighbouring countries with significant Kurdish populations, have expressed alarm. Both the GoI and the KRG are attempting to shore up their respective positions by claiming territory, and populations, as either inherently ‘Arab’ or ‘Kurdish’. For example, the Yezidi community, largely abandoned in the face of the ISIL onslaught, are now embraced by Erbil as “Kurdish brothers”, the implication being that lands formerly occupied by this minority around Mount Sinjar should fall within the IKR. Similar disputes are played out in Kirkuk, long the scene of demographic manipulations such as the “Arabisation” programme under Saddam Hussain. These factors continue to have significant implications for civilians on the ground: Kurds from Kirkuk are for instance free to come and go within the IKR as they are considered by Erbil to be residents, but they are not permitted to switch their place of formal registration from Kirkuk to anywhere else in the territory, since to do so would be to diminish the official Kurdish population in that disputed city. There is also substantial disagreement between the two governments over the export of, and revenue from, oil. All observers agree that the future is uncertain and that the security situation remains precarious. Dr Fatah considers that the greatest risk is found in those governates with mixed populations: the general rule of thumb is that the bigger the majority of one group over another, the more stable the security situation.

 

14.Nor has the problem of ISIL terrorism entirely disappeared. Both the GoI and KRG are making extensive efforts to identify and detain remaining ISIL fighters who “melted away” when faced with military defeat. LIFOS (December 2017) report that pockets of resistance and sleeper cells remain, mostly in remote and inaccessible terrain, making their eradication difficult. They are mounting attacks on Shi’a militias, particularly in Diyala, where there is believed to be a considerable ISIL presence. This situation is predicted to prevail for some time”.

 

(2). Emphasis on Country Expert Report evidence and less on background evidence:

 

AAH(Iraq) 2018 states:

 

“8.  Although we were provided with a substantial volume of country background material, neither party referred us to very much of it, preferring to concentrate on the evidence of Dr Fatah. We have read all of the material that was placed before us but for the purpose of this decision have only found it necessary to refer to some of those additional reports; those that receive special mention are highlighted in the list of materials at Appendix B. The reader can assume that all of the evidence referred to herein comes from Dr Fatah unless otherwise indicated.

 

91.We record at the outset our gratitude to Dr Fatah, who prepared a comprehensive report…………..Both advocates described him as an “excellent” expert witness and we were urged to give substantial weight to all of his evidence. We have done so…………..”

 

 

(3). Continuing instability- AA(Iraq) 2015 still holds good:

 

Whilst AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) either supplements or replaces 2 sections of the Annex to the Country Guidance as set out in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944,   it would have enabled better presentation, avoiding confusion to simply set out the full current amended Country Guidance Headnote in one long continuous Annex. Currently one has to first consider the new amendments and then revert to the Court of Appeal Annex of 2017 in order to fully appreciate that the contentious parts to the original Headnote in AA(Iraq) 2015 have survived both the 2017 Court of Appeal amendments as well as the ones undertaken by the Upper Tribunal in 2018.

 

It still is part of current country guidance as confirmed in the Annex, Section A of AA(Iraq) 2017 that:

 

“A.………………………………..

 

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.

 

…………………………………………….”

 

In AAH(Iraq) 2018, the Upper Tribunal referred to continuing instability and stated as follows at paragraph 134 of their decision:

 

“We are however conscious that our comments are made against the backdrop of continuing instability in the region. The divisions that have wreaked havoc in Iraq since the fall of Saddam Hussain – Islamist v secularist, Sunni v Shi’a, extremist v moderate – may soon be joined by yet another depressing dichotomy: Kurd v Arab. The coalition that defeated ISIL has disbanded, and its constituent parts are reported to remain “combat ready”, this time for a potential fight that will determine the future shape of the country itself. As the Kurdish clamour for self-determination grows, so too does the resolve of the Arab majority to maintain the political integrity of Iraq. There are also other active and interested actors within the region. Whilst it is to be hoped that this belligerence will give way to negotiation, decision-makers should remain alert for developments on the ground”.

 

(4). Returns to Baghdad and Iraqi Kurdish Region (IKR):

 

Section B to the Annex in AA(Iraq) 2017 continues unamended as part of the Country Guidance:

 

“B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)

 

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 a current or expired Iraqi passport or a laissez passer, if the Tribunal finds that P’s return is not currently feasible on account of a lack of any of those documents.

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”.

 

 

(5). Appreciating the importance of an Iraqi Civil Status Identity Document (CSID):

 

Section C as set out in Annex of AA(Iraq) 2017 continues to state as follows:

 

“C. The CSID

 

9.Regardless of the feasibility of P’s return, it will 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.

10.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.

11.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”.

 

 

(6). AAH(Iraq 2018) provides a supplement to Annex C of AA (Iraq) 2017:

 

AAH(Iraq 2018) provides as follows:

 

Section C of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is supplemented with the following guidance:

i  Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in ‘tracing back’ to the family record and are confiscated upon arrival at Baghdad;

ii)The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?

iii)   Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father’s side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual’s mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all”.

 

(7). Internal relocation within Iraq, other than the IKR:

 

Section D as set out in the Annex to AA(Iraq) 2017 remains unamended:

 

“D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IKR)

 

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)”.

 

(8). New Section E- inability to board a domestic flight from Baghdad to the IKR without a CSID or passport:

 

A new Section E states as follows:

 

“Section E of Country Guidance annexed to the Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 is replaced with the following guidance:

2.There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad.

3 For an Iraqi national returnee (P) of Kurdish origin in possession of a valid CSID or Iraqi passport, the journey from Baghdad to the IKR, whether by air or land, is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.

4 P is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport”.

 

 

(9). New Section E- difficulty in travel and at checkpoints without a CSID or passport:

 

AA (Iraq) 2018 provides as follows in relation to Section E of the Annex:

 

“5 P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or valid passport. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor a valid passport there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon “connections” higher up in the chain of command”.

 

(10). New Section E- No sponsorship requirements for Kurds in the IKR:

 

Section E to the Annex now includes the following:

 

“6. Once at the IKR border (land or air) P would normally be granted entry to the territory. Subject to security screening, and registering presence with the local mukhtar, P would be permitted to enter and reside in the IKR with no further legal impediments or requirements. There is no sponsorship requirement for Kurds”.

 

 

(11). New Section E- Factors that may increase risk:

 

Section E states as follows:

 

“7. Whether P would be at particular risk of ill-treatment during the security screening process must be assessed on a case-by-case basis. Additional factors that may increase risk include: (i) coming from a family with a known association with ISIL, (ii) coming from an area associated with ISIL and (iii) being a single male of fighting age. P is likely to be able to evidence the fact of recent arrival from the UK, which would dispel any suggestion of having arrived directly from ISIL territory”.

 

 

(12). New Section E-Whether a person has family members living in the IKR:

 

AA (Iraq) 2018 provides as follows in relation to Section E of the Annex:

 

“8. If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a ‘relatively normal life’, which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P’s family on a case by case basis”.

 

(13). New Section E- Accommodation options for those without family assistance in the IKR:

 

Section E to the Annex additionally now states:

 

“9.For those without the assistance of family in the IKR the accommodation options are limited:

(i)Absent special circumstances it is not reasonably likely that P will be able to gain access to one of the refugee camps in the IKR; these camps are already extremely overcrowded and are closed to newcomers. 64% of IDPs are accommodated in private settings with the vast majority living with family members;

(ii)If P cannot live with a family member, apartments in a modern block in a new neighbourhood are available for rent at a cost of between $300 and $400 per month;

(iii)P could resort to a ‘critical shelter arrangement’, living in an unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building. It would be unduly harsh to require P to relocate to the IKR if P will live in a critical housing shelter without access to basic necessities such as food, clean water and clothing;

(iv) In considering whether P would be able to access basic necessities, account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations”.

 

 

(14). New Section E- ability to secure employment in the IKR:

 

AAH(Iraq) 2018 also includes the following to Section E of the Annex:

 

“10  Whether P is able to secure employment must be assessed on a case-by-case basis taking the following matters into account:

(i)Gender. Lone women are very unlikely to be able to secure legitimate employment;

(ii)The unemployment rate for Iraqi IDPs living in the IKR is 70%;

(iii)P cannot work without a CSID;

(iv)Patronage and nepotism continue to be important factors in securing employment. A returnee with family connections to the region will have a significant advantage in that he would ordinarily be able to call upon those contacts to make introductions to prospective employers and to vouch for him;

(v)  Skills, education and experience. Unskilled workers are at the greatest disadvantage, with the decline in the construction industry reducing the number of labouring jobs available;

(vi)If P is from an area with a marked association with ISIL, that may deter prospective employers”.

 

CONCLUSION

 

It remains to be seen how and whether the Secretary of State will amend her Country Information Notes following AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018). What is clear however is the Upper Tribunal refusal to be distracted by the Secretary of State’s expressed position within those Notes as set out above.  The situation in Iraq is way more complex than what the Secretary of State has sought to present; there is to be no hasty conclusion that there are strong grounds to depart from AA(Iraq) 2015, from which flow subsequent amendments and supplements as per AA(Iraq) 2017 and AAH(Iraq )2018.

 

A good number of Iraqi claimants arrive in the UK without any identity documentation. One of the key issues in the consideration of Iraqi claims is to ascertain whether the claimant has or could obtain a CISD.  The Court of Appeal described a CSID in AA (Iraq) v Secretary of State for the Home Department [2017] Imm AR 1440; [2017] EWCA Civ 944 as an “essential document for life in Iraq”.   In AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018), Dr Fatah clarified that, “for day to day purposes the information contained therein – his origins, civil status and place of registration – are most conveniently to be found on his ‘Civil Status Identity Card’ (CSID) card. This card – the physical representation of the information in the family record book – is a crucial document for adult life in Iraq….. .It is not compulsory to have a CSID – young children do not for instance carry them – but without one, life is extremely difficult”.

 

Having regard to the considerations in AAH(Iraq) 2018, the absence of a CSID is likely to affect a claimant as follows:

 

  • Without a CSID card, an individual cannot legally work, or find accommodation. Prospective employers or landlords are unable to contemplate providing work or housing without one, since they are legally obliged to inform the local security services (in the IKR the Asayish) of any new employee or tenant. Failure to do so would expose them to the risk of a raid and detention.

  • To board an internal flight a passenger must be in possession of a CSID, or a valid passport. People are not in any case permitted to leave the airport without documentation.

  • Cars need to pass through numerous checkpoints on a journey between Baghdad and the IKR, and at each checkpoint passengers would ordinarily be expected to produce a CSID.

  • It is a straightforward matter for a Kurd in possession of his CSID to enter the IKR.

  • A newly arrived man with no connections to the area would have to book into a hotel on arrival. He could only do this if in possession of his CSID, since hoteliers are legally obliged to send a list of residents each day to the Asayish.

  • If a claimant does not have a CSID no-one will employ them.

  • A person who is unable to replace a missing CSID, and who has no family or others to whom he could turn for assistance, is likely to face significant difficulties in accessing housing, employment, healthcare and other services

  • The Iraqi civil registration system is in disarray. Between 2014 and 2017 ISIL closed down all of the relevant offices in areas under its control, damaging or destroying many of them. No marriages, births or deaths were recorded in these offices during that period and officials are today preoccupied with trying to register and re-document the many hundreds of thousands men, women and children currently in need of assistance in Iraq. In this context the problems of individual returnees are regarded as “totally insignificant”; no procedures have been implemented to assist in their re-documentation.

  • Persons without a CSID or passport are likely to face significant obstacles in trying to make the journey between Baghdad and the IKR. They would not be able to take the most straightforward route, by air, since they would not be permitted to board a plane. Without one of those documents the traveller would also face difficulties in leaving the airport by road. The purpose of the checkpoints on the airport perimeter is to enforce security.

  • The Upper Tribunal in AAH(Iraq) 2018 considered that a returnee who has, for instance, friends or relatives in Baghdad with whom he could stay temporarily, and who is in a good position to make contact with documented male family members, has someone in position in his home area who could attend the civil registry for him and/or is already in possession of much of the material he would need to obtain a new CSID, it would not be unreasonable to expect him to remain in Baghdad until he has secured his papers. Conversely a returnee who has no connection with Baghdad, is entirely undocumented and whose family are not themselves in a position to assist could be facing potentially lengthy – and potentially repeated – periods of detention at various points between Baghdad airport and the IKR. The Upper Tribunal did not consider that this would be a ‘reasonable’ means to access the place of internal flight.

On the other hand, a person with a CSID would be able to board an internal flight and be likely able to pass through the checkpoints with no problems. He would likely be admitted to the IKR without any difficulty. A Kurd would not be required to have a sponsor. Once he has entered the IKR, there would be no impediment to him remaining there. Such a person may be able to secure some form of employment. It might be considered reasonable to expect such a person to relocate within the IKR. That is the basis, more or less upon which AAH’s appeal failed as he was an Iraqi Kurd in possession of a CSID.

 

As to presentation of Iraqi claims, although the Upper Tribunal in AHH(Iraq) 2018 acknowledged to laying much emphasis upon evidence from expert opinion, updated background evidence will always be relevant in the consideration of Iraqi claims. Updated background evidence should therefore be placed before the Secretary of State or the Tribunal to show for example whether in Kirkuk or Ninewa, there is continued instability arising from activities involving government security forces, other militias or Isis.

 

Iraq claims should be accompanied by a well prepared statement seeking to address the claimant’s individual circumstances, factoring relevant aspects of the above guidance. Paragraphs 136 to 149 of AAH(Iraq) 2018 sets out the factual position in that case as well as how the Upper Tribunal applied the relevant considerations and factors as per the guidance and as such forms a good starting point of how the First Tier Tribunal might approach an affected Appellant’s claim for Humanitarian Protection.

 

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