Not yet time for Supreme Court to revisit criteria in Article 3 medical condition cases says Court of Appeal

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018) as recently decided in the Court of Appeal, is  largely a follow up and conclusion of that Court’s considerations following remittal of MM’s case to the Upper Tribunal as per MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018).

A blog post published following MM(Malawi) No.1 in the Court of appeal, Article 3 medical condition cases: The Paposhvili test returns to plague the Court of Appeal, summaries the applicable two tests currently in tension on Article 3 medical condition cases:

  • the test in article 3 medical cases as expounded in N v Secretary of State for the Home Department [2005] UKHL 31; [2005] 2 AC 296, i.e. that, where an individual suffers from a serious medical condition, it would breach article 3 to remove him from the UK only where he would face an early and undignified death
  • the test in article 3 medical cases as per the criteria in Paposhvili v Belgium [2017] Imm AR 867,ie the “Paposhvili test”.   The Court in MM(Malawi) No.1 observed earlier this year that the effect of Paposhvili upon existing jurisprudence was considered in AM (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 64, at paragraph 38:   “So far as the [European Court of Human Rights] and the [ECHR] are concerned, the protection of article 3 against removal in medical cases is now not confined to deathbed cases where death is already imminent when the applicant is in the removing country. It extends to cases where ‘substantial grounds have been shown for believing that [the applicant], although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy’ (paragraph 183). This means cases where the applicant faces a real risk of rapidly experiencing intense suffering (i.e. to the article 3 standard) in the receiving state because of their illness and the non-availability there of treatment which is available to them in the removing state or faces a real risk of death within a short time in the receiving state for the same reason. In other words, the boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”

In MM(Malawi) No.2, the Court of Appeal summarised as follows in relation to the effect of AM(Zimbabwe):

  • Despite the guidance given in Paposhvili, as a result of the principle of stare decisis, i.e. the usual rules of precedent in this jurisdiction, the test in N remains binding on the Court of Appeal and indeed all tribunals and courts in this jurisdiction, subject only to the Supreme Court using its power to overrule it.
  • Paposhvili at paragraph 183 relaxes the test for violation of article 3 in the case of removal of a foreign national with a medical condition (see [37]). As Sales LJ put it at [38] in AM(Zimbabwe): “… [T]he boundary of article 3 protection has been shifted from being defined by imminence of death in the removing state (even with the treatment available there) to being defined by the imminence (i.e. likely ‘rapid’ experience) of intense suffering or death in the receiving state, which may only occur because of the non-availability in that state of the treatment which had previously been available in the removing state.”
  • However, whilst acknowledging that relaxation of the test, Sales LJ considered “it does so only to a very modest extent”. The article 3 threshold in medical cases remains high.
  • In respect of the correct approach and burden of proof, Sales LJ said this (at [16]) in AM(Zimbabwe): “It is common ground that where a foreign national seeks to rely upon article 3 as an answer to an attempt by a state to remove him to another country, the overall legal burden is on him to show that article 3 would be infringed in his case by showing that that there are substantial grounds for believing that he would face a real risk of being subject to torture or to inhuman or degrading treatment in that other country: see, e.g., [Soering] at [91], which is reflected in the formulations in Paposhvili at [173] and [183]…. In Paposhvili, at [186]-[187]…, the Grand Chamber of the ECtHR has given guidance how he may achieve that, by raising a prima facie case of infringement of article 3 which then casts an evidential burden onto the defending state which is seeking to expel him.”

 

MM(Malawi) No. 2 in the Court of Appeal- Article 3 medical condition case:

MM (Malawi) & Anor v the Secretary of State for the Home Department [2018] EWCA Civ 2482 (09 November 2018)  involved two appeals concerning the protection of article 3 against removal from the United Kingdom in cases where it was said that an absence of, or lack of access to, medical treatment in the receiving state will result in a decline in health of the foreign national it is proposed to return.

Both MM and MV conceded that (i) the test for article 3 medical cases set out in N as explained in AM (Zimbabwe) was binding on the Court of Appeal, and (ii) none of them was able to satisfy that test. However, they submitted that, unlike the individual cases in AM (Zimbabwe), they each satisfied the test in Paposhvili; and the Court of Appeal, whilst bound to refuse their appeals, should give permission to appeal to the Supreme Court to enable that court to reconsider N in the light of Paposhvili.

Upon the Upper Tribunal considering MM’s appeal in October 2018 following remittal from the Court of Appeal, the Upper Tribunal held in essence that the form of ARV treatment required by MM, who was HIV positive, was available, appropriate, affordable and accessible in Malawi.  ARV therapy in Malawi is free in public health facilities and subsidised in private health facilities. The Upper Tribunal therefore concluded that there was no real risk that returning to Malawi would cause a decline in MM’s physical health. Her life expectancy would not be affected . Her mental health condition would be managed as it is in the UK. The result was that the Upper Tribunal concluded that MM’s appeal would fail even under the Paposhvilli test.

Upon reaching the Court of Appeal, that Court observed that it was common ground that the appeal would have no prospect of success before it, because MM could not satisfy the criteria in N which the Court was bound to apply. The only issue for the court was whether there was some other compelling reason to hear the appeal, namely that, although not satisfying the criteria in N, MM satisfied the criteria in Paposhvili; and consequently the Court should grant permission to appeal and refuse the appeal, but grant permission to appeal to the Supreme Court or, at least, give MM an opportunity and perhaps even encouragement to seek such permission from that court.

In response to the several arguments put forward on behalf of MM, some described by the Court as “ courageous submissions”, the Court of Appeal concluded as follows in summary:

  • The questions posed on MM’s behalf had been answered and sufficient guidance given in AM (Zimbabwe) which, although MM’s Counsel did not concede that it was correct, accepted was binding on the Court of Appeal. The Court made it clear that , “unless and until the Supreme Court holds otherwise, the domestic courts are bound to follow N as explained in AM (Zimbabwe). If a particular therapy is unavailable in the receiving state, then that may be sufficient to satisfy the criteria in N and/or Paposhvili; but that will always be a fact-specific question”.
  • The Court did not consider that there were any ground upon which the factual findings of the Tribunal were arguably challengeable. In those circumstances, its conclusion that there was no real risk that returning to Malawi would cause a decline in MM’s health or any reduction in her life expectancy – and thus no real prospect of satisfying the Paposhvili criteria – was unimpeachable. The Court of Appeal refused permission to appeal.

 

MV (Sri Lanka)- Article 3 suicide risk case:

At paragraph 22 of their judgment, the Court noted as regards MM No. 2, that the Upper Tribunal, “heard the matter on 8 October 2018; and I am grateful for their prompt determination promulgated on 12 October 2018, which enabled the application in this court to be heard with the appeal in MV (Sri Lanka) which raises similar issues”.

In support of his claims, MV relied upon a report of a consultant psychiatrist. On the basis of MV’s reportage, he diagnosed him as suffering from PTSD and severe secondary depression. At that stage, MV was being treated by his doctor with low dose antidepressants. He had not been referred to a psychiatrist. The psychiatrist considered MV should be prescribed different antidepressant drug therapy, and also referred for guided psychotherapy. If he were returned to Sri Lanka, it was said that drug therapy would be available, but psychotherapy would not. It was considered that MV was not currently at suicide risk, because his aunt managed his medication and he lacked all motivation; but the risk would definitely be increased if he did not have such support.

Applying the guidance and criteria in in J v Secretary of State for the Home Department [2005] EWCA Civ 629; [2005] Imm AR 409 and Y (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 362; [2009] HRLR 22, the First Tier Tribunal Judge, dismissing the appeal held that the risk of suicide would not place the UK in breach of article 3 if it was to return MV to Sri Lanka. Among other reasons it was found that antidepressant medication would be available in Sri Lanka, there was no evidence that MV had received psychotherapy in the UK and that MV would not be alone on arrival in Sri Lanka, but rather his family would be there for him.

The Upper Tribunal endorsed the First Tier Tribunal’s decision holding that case was not so severe as to amount to a breach of article 3 on the basis of a risk of suicide.

Permission to appeal to the Court of Appeal was given on the ground that the First Tier Tribunal and Upper Tribunal had erred in applying the criteria in N rather than those in Paposhvili . It was stated that it was possible that the evidence did not meet that reduced threshold; but it was considered that that was a matter which should be considered by the full court. The grant of permission also stated that: “It seems to me that it is seriously arguable that applying the less severe test to article 3 might on the evidence available have caused the FtT and the UT to reach a different result.”

The Court of Appeal considered and concluded as below in MV:

  • It was accepted by Counsel for MV, that N as explained in AM (Zimbabwe) was binding on the Court of Appeal , and MV could not satisfy its criteria. The appeal therefore fell to be dismissed. The real issue was whether, because MV satisfies the criteria in Paposhvili, his case might be an appropriate vehicle for the Supreme Court to revisit the criteria in article 3 medical cases.
  • It was further noted that it was submitted on the Appellants’ behalf that Sales LJ in AM (Zimbabwe) had misconstrued paragraph 183 of Paposhvili, by reading it as requiring any “significant reduction in life expectancy” to be linked to exposure “to a serious, rapid and irreversible decline in [the applicant’s] state of health…”.  Properly read, if there was a risk of a significant reduction in life expectancy as a result of removal, it was submitted that that satisfied the criteria in that paragraph. Although Counsel for the Appellant accepted that AM (Zimbabwe) was binding on the court, he submitted MV ought to be allowed an opportunity to argue before the Supreme Court that the construction adopted by the Court of Appeal in AM (Zimbabwe) was wrong.
  • The Court of Appeal however stated that it saw difficulties in the construction suggested on behalf of the Appellant which appeared to emasculate the alternative limb expounded in D and N and endorsed in Paposhvili, i.e. that there would be an imminent risk of dying. The Court however stated that it was not suggesting that the Appellant’s favoured construction was fanciful or even unarguable.
  • The Court’s position however was that it did not consider that it should give permission to appeal to the Supreme Court (or, indeed, give any encouragement to MV to apply to that court for permission) in his case because of its facts.
  • It was observed that Counsel for MV based his submissions on both limbs of Paposhvili, namely that removal of MV to Sri Lanka would result in (i) a serious, rapid and irreversible decline in his state of health resulting in intense suffering and (ii) a significant reduction in life expectancy as a result of an increased risk of suicide. It was considered however that the evidence upon which the submission was based, in respect of each limb, was restricted to that of the psychiatrist. It was very thin.
  • It was noted that the psychiatrist considered that MV’s depression was “severe”, and that his PTSD needed psychotherapeutic intervention which he had not received to the date of the report. At the time of the report, MV was on low dose antidepressants and no psychotherapy. There was no evidence as to whether he had subsequently had his drug regime changed, or undergone any form of psychotherapy; or, if so, whether they have been beneficial. Whilst the report indicated that MV’s mental health symptoms would worsen if he were to be removed to Sri Lanka, the psychiatrist did not appear to consider the position if (as the tribunal found) he would be at no objective risk in Sri Lanka if returned. In the Court’s view, there was no evidential basis for the proposition that, if he were to be returned, excluding the risk of suicide, he would suffer a serious, rapid and irreversible decline in his state of health resulting in intense suffering. Nothing in the psychiatrist report suggested that to be the case. There was no evidence as to the potential effect of an increased drug regime (available both here and in Sri Lanka) upon MV’s symptoms and state of mind.
  • The First Tier Tribunal found that any increase in risk would be insufficient to meet the test in J. In the Court’s view, the available evidence fell far short of showing any real risk that MV’s life expectancy will be significantly reduced (and/or reduced to one to two years) as a result of an increased risk of suicide on removal to Sri Lanka.
  • The Court of Appeal therefore refused MV’s appeal and also permission to appeal to the Supreme Court.
  • The Court made it clear that even if the Supreme Court were to revisit the criteria in N in the light of Paposhvili, that would not assist MV whose application for leave on article 3 grounds, on the evidence before the Court, would be bound to fail in any event.

 

Conclusion

There now appears to be an element of circularity in the Court of Appeal’s recent decisions on Article 3 medical condition cases.

Earlier this year the Court of Appeal concluded in MM (Malawi) & Anor, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 1365 (12 June 2018), at paragraph 25 that:

“In the meantime, I shall formally adjourn the application for permission to appeal to this court. In terms of a return date, there are currently three other appeals in which the difference between the criteria in N and those in Paposhvili are in issue, that are listed for Tuesday 30 October 2018 with a time estimate of 2-3 days. I propose that this application for permission to appeal is provisionally listed with those appeals, on a rolled-up basis. The precise time estimate can be considered later, but I am confident that the current estimate of 2-3 days will not be exceeded. Whilst appreciating the enormous workload on the Upper Tribunal, for obvious reasons it would be extremely helpful if the Upper Tribunal were able to determine the question out to them in time for that hearing”.

Apart from acknowledging at paragraph 22 in MM(Malawi) No.2, that the case was to be heard with the appeal in MV which raised similar issues, it is not altogether clear whether the three previously mentioned appeals have now been heard separately or if the Court’s considerations in MM and MV constitute the sum of their resolution of the pressing issues regarding the difference between the criteria in N and those in Paposhvili.

Whilst it may be considered that a suitable case(s) has not yet arisen justifying grant of permission to the Supreme Court, the Court of Appeal appears to be postponing the inevitable. The longer it continues to dither and reiterate the binding nature of its previous decisions upon itself, one case after the other, the more the increase in cases that will continue to come before it seeking to edge closer to the door of the Supreme Court.

New Iraq Country Information Notes: Current key considerations in claims for Humanitarian Protection

An updated Country Information Note on Iraq has now been published: Country policy and information note: security and humanitarian situation, Iraq, November 2018, Version 5.0, 19 November 2018.  This is to be considered in conjunction with the Note published last month: Country policy and information note: internal relocation, civil documentation and returns, Iraq, October 2018.

 

Relevant County Guidance caselaw and other   pertinent cases remain the following:

 

Relevant previous blog posts:

 

The Home Office position is as follows as set out in the updated Country Information Notes and by reference to relevant caselaw:

 

Humanitarian situation

The types of claims that arise are focused on the basis that:

a.That the general humanitarian situation in Iraq is so severe as to make removal to this country a breach of Articles 15(a) and (b) of the European Council Directive 2004/83/EC of 29 April 2014 (the Qualification Directive)/ Articles 2 and 3 of the European Convention on Human Rights (ECHR);

and/or

b.That the security situation in Iraq presents a real risk to a civilian’s life or person such that removal to this country would be in breach of Article 15(c) of the Qualification Directive (serious and individual threat to a civilian’s life or person by reason of indiscriminate violence).

The Country Information Note state:

Since 2015 the international humanitarian response has contracted significantly overall, although it has expanded into some areas as Anbar, Kirkuk, Ninewah and Salah al-Din have become newly accessible. Support efforts concentrate on the most vulnerable. Efforts in Mosul have been significant, with a million people now being helped in the city.

The humanitarian situation is serious, but, according to the UN, no longer one of the ‘most complex and challenging humanitarian emergencies’.

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, requiring a grant of Humanitarian Protection (HP).  However, decision makers must consider each case on its merits. There may be cases where a combination of circumstances means that a person will face a breach of Articles 15(a) and/or (b) of the Qualification Directive/Articles 2 and 3 of the ECHR on return. In assessing whether an individual case reaches this threshold, Home Office decision makers must consider:

  • where the person is from (as humanitarian conditions are more severe in some areas than others, and this may also impact on whether the person becomes an IDP on return, if they were not already prior to leaving the country);
  • a person’s individual profile and circumstances, including, but not limited to, their age, gender and ethnicity
  • whether the person can access a support network.

 

Returns to Home areas

  • Since 2015 displacement has significantly declined and there has been a significant increase in people returning to their homes.
  • According to the IOM, as of August 2018 nearly 4 million people have returned to their home areas, a continuing upward trend, particularly to Ninewah, Anbar, Salah al-Din and Kirkuk, explained by improvements in the security situation, although there is some secondary displacement. Return trends are stable in Baghdad, Diyala and Erbil. The vast majority of returnees have gone back to their old homes.
  • The UN High Commissioner for Refugees (UNHCR) reported that government-affiliated armed groups and members of the community prevented some IDPs, particularly from Anbar and Ninewah, from returning to their homes because of their suspected Daesh affiliation.
  • Returnees may face explosive hazards, substandard accommodation and deteriorating public services. The World Bank estimates that it will take at least a decade to rebuild parts of Iraq. However, some rebuilding of affected areas is now taking place.
  • There are some gaps in humanitarian assistance. The UN Humanitarian Response Plan has targeted about 40% of those in humanitarian need. REACH reported that the vast majority of returnee and host community households in accessible areas reported that they have not received humanitarian assistance (although this does not mean that all of those who reported this have been defined as those needing such assistance).

 

Security situation

  • An assessment of protection needs under Article 15(c) of the Qualification Directive must only take place if a claimant is unable to establish a need for refugee protection or subsidiary protection under Article 15(a) or 15(b).
  • A claim for protection based on indiscriminate violence must be assessed by applying the test set out in (QD (Iraq) v SSHD [2009] EWCA Civ 620): “Is there in [country] or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that an applicant would, solely by being present there, face a real risk which threatens their life or person?”
  • In AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) (30 September 2015), the Upper Tribunal found, based on evidence up to May 2015, that the degree of armed conflict in Iraq did engage Article 15(c) in Anbar, Diyala, Kirkuk (aka Tam’in), Ninewah, Salah al-Din; and the parts of the ‘Baghdad Belt(s)’ (the urban environs around Baghdad City) that border Anbar, Diyala and Salah al-Din (paragraph 204).
  • However, the security situation has changed significantly since May 2015, the point up to which AA(2015) considered evidence.
  • Iraq is still the scene of internal armed conflict. The Government maintains counterinsurgency operations against Daesh (Islamic State), the Sunni insurgency group, who continue to launch sporadic attacks, including on civilians, for example in Hawija, Diyala and Salah al-Din.
  • The nature of much of the violence affects civilians indiscriminately, with Improvised Explosive Devices (IEDs) and shootings the most common forms of violence.
  • However, since 2015, Daesh’s territorial control has collapsed and their operational capability has significantly degraded. The Iraqi government officially declared victory against Daesh in December 2017. The threat from Daesh has not disappeared entirely, but the group are confined to small pockets and the conflict has changed in nature from open conflict to periodic assymetric attacks by Daesh in Anbar, Baghdad, Diyala, Kirkuk, Ninewah and Salah al Din.
  • Iraqi Security Forces (ISF), the Shia militia Popular Mobilisation Units (PMUs) (aka Hashd al Shabi) and the Kurdish Peshmerga have reestablished control over most of Iraq’s territory.
  • The Home Office therefore conclude that there are strong grounds supported by cogent evidence to depart from AA(2015)’s assessment that any areas of Iraq engage the high threshold of Article 15(c). This is  however not to say that the security situation is no longer serious; it is that there is no longer a high level indiscriminate violence anywhere in Iraq such that substantial grounds exist for believing that an applicant would, solely by being present there, face a real risk which threatens their life or person.
  • Even though there is no longer a general Article 15(c) risk, Home Office decision makers must consider whether the person has any circumstances which might nevertheless place them at such risk.

 

Travel documents

The Upper Tribunal in AA(2015) found: ‘The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only … [the person] is in possession of a current or expired Iraqi passport relating to … [the person], or a laissez passer’ (paragraph 204 (5)) and that: ‘No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.’ (para 204(6).

The passport and laissez passer are travel documents and they should not be confused with civil documentation such as the Civil Status ID card (CSID), which enables access to services (although there is a relationship between the two types of documents). If a person has a passport or laissez passer then return is feasible.

If a person does not have a current or expired passport, or a laissez-passer, then return is not feasible. This is a technical obstacle to return, and not a reason itself to grant a person leave.

The central Iraqi authorities state that to obtain a passport, a person (who is 18 or over) needs to go to an Iraqi consulate and present:

  • a Civil Status ID (CSID) and
  • an Iraqi Nationality Certificate (INC) and
  • a Residency card (for those outside Iraq)

An application for a laissez-passer is considered on a case-by-case basis by the Iraqi Embassy in London. The applicant needs to produce:

  • a Civil Status ID (CSID) or
  • an Iraqi Nationality Card (INC) or
  • a photocopy of a previous passport and a report confirming that the passport had been lost or stolen

Iraqi Foreign National Offenders (FNOs) who have served time in the United Kingdom can be issued with a laissez-passer when enrolled onto an interview and documentation scheme run by the Home Office in conjunction with the Iraqi Embassy.

The onus is on the person to 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 that their identity and/or documentation could not be confirmed or issued.

 

Internal Relocation- Effect of Lack of Documentation(CSID)

A person may claim that the state of his or her documentation means that they cannot access support.

The Civil Status ID card (CSID) is the key document to enable a person to access services such as financial assistance, employment, education, housing and medical treatment. It is also a gateway to obtaining other documents.

The main issues are whether a person:

(i) can, in general, reasonably relocate elsewhere in Iraq if they are unable to return to their registered place of origin; and

(ii) is at risk of serious harm sufficient to breach Article 3 of the European Convention on Human Rights (ECHR) / Article 15(b) of the Qualification Directive(QD) as result of their lack of documentation; and

(iii) can feasibly return to Iraq (they have the requisite travel documents).

It is unreasonable for any person to relocate to any area of Iraq which meets the threshold of Article 15(c) of the Qualification Directive.

A person who is unable to:

a. replace their CSID; and

b. obtain support from family members or others is likely to face significant difficulties in accessing services and humanitarian conditions which are likely to result in destitution sufficient to amount to a breach of Article 3 of the ECHR / Article 15(b) of the QD. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

If a person is

  • unable to obtain a passport or a laissez-passer (i.e. their return is not feasible)
  • unable to obtain documents, including a CSID, and
  • claiming they are at real risk of destitution based on their lack of documents then a person has not established a need for protection and Home Office decision makers should consider the Discretionary Leave (DL) policy and if appropriate, grant a person leave, pending future reviews of their ability to feasibly return to Iraq. These are very specific circumstances. Home Office decision makers must explore whether a person can reasonably obtain a travel document before they find that a person’s return is not feasible.

A person in the above circumstances has not established a need for protection because there is a relationship between feasibility of return and risk arising from a lack of documents: once a person obtains a passport then this will have a positive impact on their ability to obtain a CSID.

A person who can be feasibly returned, and is at real risk of destitution because of a lack of documents, should be granted HP. It should be noted that this is the case for whatever reason the person’s return becomes feasible. However, it is likely that a person whose return is feasible will be able to obtain a CSID. This is because a passport is a route to an CSID. Alternatively, if a person is returned on a laissez-passer (LP) they may already possess a CSID because the CSID is a route to an LP.

In AA(2015), the Upper Tribunal found: ‘As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area [defined as Anbar, Diyala, Kirkuk, Ninewah, Salah alDin and certain parts of the ‘Baghdad Belts’ (the urban environs surrounding the city), specifically the parts bordering Anbar, Diyala and Sala al-Din] to relocate to Baghdad City or….[certain parts of] the Baghdad Belts [not the parts described above]’ (paragraph 204 (14)).

The Upper Tribunal in AA(2015) also observed that, when deciding upon internal relocation to Baghdad and the ‘Baghdad Belts’, decision makers should take into account whether a person:

  • has a Civil Status ID card(CSID) or will be able to obtain one;
  • can speak Arabic (those who cannot are less likely to find employment);
  • has family members or friends able to accommodate them and provide them with assistance;
  • is a lone female (women face greater difficulties than men in finding employment);
  • can find a sponsor to access a hotel room or rent accommodation;
  • is from a minority community;
  • can access any other support bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs [Internally Displaced Persons] (paragraphs 197, 198, 202 and 204(15)

In deciding whether a person can avoid humanitarian conditions that may breach Article 3 of the ECHR it is critical to determine whether they can acquire (or reacquire) identity documentation.

If applicable, Home Office decision makers must determine whether a person can obtain documentation (in particular, the Civil Status ID (CSID). Decision makers are required to  note that obtaining Iraqi civil and travel documentation can be complex and circular. For example, to obtain a passport a person needs a CSID, but they can also use a passport in support of an application for a CSID.

The Upper Tribunal in AA(2015) also found that ‘the process of obtaining a CSID from Iraq is likely to be severely hampered if the person wishing to obtain the CSID is from an area where Article 15(c) serious harm is occurring.

In AA(2015), the Upper Tribunal found: ‘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 204 (13).  However, in October 2018, the Iraqi Embassy noted that ‘there is a central register back up in Baghdad that includes all the civil records of all the provenances [sic] in the event of any form of damages or destruction. This civil registration backup (Microfilm) covers all records from 1957.

In September 2018, the Iraqi Ambassador to the United Kingdom confirmed that ‘all the Civil Status Records are preserved and held digitally by each Governorate Directorate of Civil Status Affairs and are accessible to assist in determining a returnee’s identity with reference to the register and page.

In AA(2015), the Upper Tribunal found that the assessment of whether a person would be at risk of destitution because of a lack of a CSID should only be made if return was feasible. However, this position was reversed by the AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (11 July 2017) (Annex: C 9). Home Office decision makers must now assess the risk arising from a lack of a CSID regardless of ‘feasibility of return’ (whether a person can be returned or not).

 

Place of return

The Upper Tribunal in AA(2015) found: ‘Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad.’ (paragraph 204(5).

The Upper Tribunal in AAH(2018) found that: ‘There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad.’ (paragraph 135 (2)).  However, the Government of Iraq has now lifted the ban on international flights to the Kurdistan region .

The Upper Tribunal in AAH(2018) found: ‘[A person] … is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport.’ (paragraph 135 (4).  In a letter dated 5 September 2018, the Iraqi Ambassador to the United Kingdom confirmed that a laissez passer or a ‘certification letter’ can be used to board a domestic flight at Baghdad International Airport (BGW). The Home Office believes that as this is official confirmation relating to airport procedures this evidence amounts to very strong grounds supported by cogent evidence to depart from AAH(2018)’s finding explained at paragraph 135(4).

A letter from the Iraqi Embassy dated 2 October 2018 confirmed that the ‘same procedures are applied to all the returnees onward travel from Baghdad to KRG [Kurdistan Regional Government] or any city in Iraq’ and that: ‘Representatives from the repatriation committee would be available at Baghdad International Airport and ready to receive a returnee.

Previously the KRG authorities had responsibility for immigration; this is now centralised with the authorities in Baghdad deciding on immigration matters for the whole of Iraq. Former residents of the KRI who do not return voluntarily are returned to Baghdad, from where they will travel to their destination. Those who are prepared to obtain a travel document can return to the KRI voluntarily, to either Erbil or Sulamaniyah, without having to transit Baghdad.

 

Internal relocation and the Kurdistan Region of Iraq (KRI)

In the Country Guidance case, AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) (26 June 2018) heard on 27-28 February 2018 (hereafter ‘AAH Iraq’), the Upper Tribunal examined the humanitarian situation in the KRI and specific findings about internal relocation. The Upper Tribunal found as follows as summarised in the Headnote:

“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:

Whilst it remains possible for an Iraqi national returnee (P) to obtain a new CSID whether P is able to do so, or do so within a reasonable time frame, will depend on the individual circumstances. Factors to be considered include:

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

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:

  • There are currently no international flights to the Iraqi Kurdish Region (IKR). All returns from the United Kingdom are to Baghdad. 
  • 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.
  • P is unable to board a domestic flight between Baghdad and the IKR without either a CSID or a valid passport. 
  • 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.
  • 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. 
  • 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.  
  • 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.
  • For those without the assistance of family in the IKR the accommodation options are limited: 
  • 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; 
  • 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; 
  • 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;
  • 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.

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

  • Gender. Lone women are very unlikely to be able to secure legitimate employment;
  • The unemployment rate for Iraqi IDPs living in the IKR is 70%;
  • P cannot work without a CSID;
  • 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;
  • 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;
  • If P is from an area with a marked association with ISIL, that may deter prospective employers.