Iraq and Article 3 claims: Admin Court curbs overzealous attempts to override current country guidance caselaw

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The Secretary of State has over the past few years been relentless in his pursuit of convincing the higher courts that there is some need or reason to depart from established country guidance caselaw on Humanitarian Protection and Article 3 claims originating from Iraq returnees.

Well, the Administrative Court has just said no to these overzealous attempts in SS v The Secretary of State for the Home Department [2019] EWHC 1402 (Admin) (05 June 2019)

Relevant country guidance caselaw and blog articles on Humanitarian Protection(HP) and Article 3 are summarised in a recent blog post: New Iraq Country Information Notes: Current key considerations in claims for Humanitarian Protection

 

The judicial review proceedings in SS arose out of a decision of the Secretary of State in refusing the Claimant’s submissions as not amounting to a fresh claim. As identified by the Court, at the heart of the case was the Secretary of State’s position, as reflected in the refusal decision, that the Claimant could obtain a Civil Status Identity Card (“CSID”) in Baghdad and was therefore not at risk of any Article 3 ill-treatment.

 

Although the Court observed that there was a relevant Country Guidance case listed for a 5-day hearing on 24 June 2019 which would address the issue of obtaining a CSID among other matters, it was considered that it would be too great a delay for the Claimant if the case was adjourned as on the basis of the Claimant’s submissions, it might be 5 or 6 months before the decision in that case could be promulgated, meanwhile the Claimant was in Baghdad at risk of ill-treatment.

 

 

The evidence relied upon by the Secretary of State:

 

The Secretary of State relied on his Country Policy and Information Note (Iraq: internal relocation, civil documentation and returns) (“CPIN”) which it was argued was based on cogent and credible fresh evidence to the effect that the Claimant could obtain a CSID on return to Bagdad.

 

Also relied upon was a Statement of Diane Drew dated 17 April 2019 which set out the circumstances in which the CPIN information relevant to this case came into being. It annexed copies of the emails/letters quoted in the CPIN.

 

The CPIN document before the Court was dated October 2018. The CPIN referred to the following

 

  • “2.6 .15 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”.

 

Annex A to the CPIN provided a copy of the letter dated 5 September 2018 from Dr Salib Hussain Ali, Ambassador of the Republic of Iraq to the United Kingdom.

 

The second section of the CPIN referred to Section 2.6.16 which read:

 

  • “In AA, the UT 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.’ (see Annex B).”

The letter dated 2 October 2018 at Annex B of the CPIN was from Counsellor Wael Alrobaaie from the Embassy of Iraq – London.

 

In relation to the statement of Diane Drew dated 17 April 2019, it was noted that she described a visit from an Iraqi delegation to the UK between 29 July 2018 and 2 August 2018 and a discussion on 31 July 2018 as part of the agenda between Home Office officials from the special appeals team and Country Policy and Information Team (“CPIT”) and the Iraqi delegation consisting of senior officials from National Security Department, Ministry of Justice, Ministry of Interior, Ministry of Foreign Affairs and Chief of Police at Baghdad airport. The discussion was about the issue of CSIDs. Miss Drew set out that during those meetings the delegation said that they felt strongly that the information in the country guidance caselaw was out of date, namely, that a CSID is easily obtainable. She stated that the Chief of Police at Baghdad airport confirmed to herself and those in attendance at the meeting, that if a person holds a laissez-passer, that person is able to travel from Baghdad to the Kurdistan Region of Iraq (KRI) using that laissez-passer.

 

Miss Drew set out that it was upon receipt of the letter of 2 October 2018 that the CPIN was updated as above. She further confirmed that the claimant was given a laissez-passer to enable him to travel to Iraq on 18 November 2018. She sets out her belief that the Claimant could obtain a CSID card and could travel from Baghdad to KRI on the laissez-passer he travelled with to Baghdad.

 

Why the Secretary of State argued relevant country guidance caselaw should not be followed:

 

  • The Secretary of State relied on the evidence set out above which he stated was credible and cogent and provided strong grounds to depart from the country guidance cases where there has been a change in the situation in Iraq.

  • It was argued that if a returnee does not have a CSID, he can obtain one from the Civil Status Affairs office in their home governorate but if they cannot return, alternate CSA offices have been established including in Baghdad and those alternative CSA offices do issue CSIDs.

  • It was the Secretary of State’s case that the two letters confirmed that all the records that are in existence have been backed up and so there were now two different databases, firstly in the CSAs and secondly backed up on microfilm.

  • It was argued that the Claimant did not need to return to Mosul, where he originated from: he could attend the CSA office in Baghdad. He could find his entry in the civil register because all the civil status records were preserved and held digitally by each governorate directorate of Civil Status Affairs and were accessible.

  • The Secretary of State went as far as arguing that that he was not only entitled but was compelled to apply the amended and up-to-date CPIN.

 

 

What was the Claimant’s position?

 

The Claimant’s case was that the Country Guidance cases established that there was a real risk that he would not be able to obtain a CSID and without one he would be at risk of Article 3 ill-treatment and so his submissions created a realistic prospect of success and amounted to a fresh claim/fresh claims pursuant to the Immigration Rules.

 

Hr argued that the country guidance caselaw should be followed and the CPIN did not amount to strong grounds and clear and cogent evidence justifying departure from it.

 

The claimant relied on the Country Guidance as evidence of the contention that without a CSID he would face the risk of Article 3 ill-treatment, as evidence of the real risk that he would not be able to obtain a CSID and further the unlikelihood of his being able to obtain one within a reasonable timeframe.

 

It was further submitted on behalf of the Claimant that he had particular characteristics which meant that if the country guidance caselaw was taken into account an appeal would have reasonable prospects of success. Those characteristics being that: he did not speak much Arabic; he was a Sunni Muslim and a Kurd; his home area of Mosul was in a contested area being in Ninewah governate; he had been in the UK for 16 years and had no familial support in Baghdad and had never lived there; he did not possess a current or expired Iraqi passport and in the event that he was returned on a laissez-passer he was undocumented; and he would be returned to Baghdad

 

The Claimant argued that country guidance caselaw has special status. It would be an error of law not to follow the existing country guidance unless very strong grounds supported by cogent evidence was adduced by the Secretary of State who contended that the CPIN did amount to such strong grounds based on clear, cogent evidence.

 

Effect of country guidance caselaw on importance of a CSID:

 

The Court in SS identified two key country guidance cases as being:

 

  • The Upper Tribunal decision, AAH (Iraqi Kurds – internal relocation) Iraq CG [2015] UKUT 544 (IAC), (“AAH“); and

  • The Court of Appeal’s decision in AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 (“AA“), items 9 to 11 of the Guidance Annex.

 

It was noted by the Court in SS that in AAH, the Secretary of State accepted that returnees who were not in possession of a CSID and who were unable to obtain one would face a real risk of destitution in all parts of Iraq such that Article 3 ECHR would be engaged.

 

As was noted at paragraph 23 in AAH, a CSID card is a crucial document for adult life in Iraq. Without one, an individual cannot legally work or find accommodation. One cannot vote or access services such as education and healthcare, receive a pension or food aid, confidently cross a checkpoint, withdraw money from their own bank or even purchase a Sim card for mobile phone. A CSID enables the holder to obtain other documents such as a passport and a driver’s licence or to obtain food rations.

 

As per paragraph 19(iii)) in AAH, those without access to food rations, healthcare or government humanitarian services and without assistance from family and friends those with no CSID would be pushed to the very margins of society and most likely end up on the streets or in a squatter tent or the like with no prospect of finding work and poor food security.

 

The Secretary of State’s concessions in SS:

 

The Court observed the following concessions made on behalf of the Secretary of State in SS:

 

  • As in AAH, the Secretary of State did not dispute the importance of the CSID. It was conceded that “the obtaining of a CSID is of central importance”.

  • There was no challenge in SS by the Secretary of State to the Claimant’s submission that without a CSID the Claimant would face the risk of Article 3 ill-treatment.

  • The Secretary of State did not dispute that a person’s ability to obtain a CSID is likely to be severely hampered if they were unable to go to the Civil Status Affairs office of their governorate because it is in an area where Article 15 (c) serious harm is occurring. This included Mosul from where the Claimant originated from.

  • Further in accordance with the Country Guidance cases cases, the Secretary of State did not dispute that the “laissez-passer” which the Claimant had would not enable him to obtain a CSID.

 

The Admin Court’s considerations and conclusions:

 

  • Whilst noting that there were no grounds to doubt the bona fides of the authors of the 2 letters, the Court in SS considered that it would be wrong to ignore either the evidence of Dr Fatah( in the two country guidance cases) about the approach of officials in Iraq or the lack of evidence in AAH of actual assistance.

  • The Court had to assess what the letters stated, and decide whether when the Secretary of State made the decision not to treat the Claimant’s submissions as a fresh claim it was reasonable to conclude that the contents of that correspondence from the Iraqi Embassy (leading to the updated CPIN) was sufficiently clear and cogent fresh evidence as to amount to strong grounds not to follow the country guidance and that therefore the Claimant had no reasonable prospect of persuading a tribunal judge that the country guidance should be followed rather than the CPIN in the circumstances which pertained to the Claimant himself.

  • There was no dispute between the parties or in the country guidance cases and the Court concluded that a CSID card is a crucial document for adult life in Iraq and without it a person would face a real risk of destitution such that Article 3 would be engaged.

  • It also noted that it was not disputed that one needed to obtain a CSID reasonably quickly in order to avoid such destitution/Article 3 ill-treatment. The Court found that this was the reason why the ability to obtain a CSID within a reasonable timeframe is “front and centre” of the two country guidance cases. The country guidance cases set out in strong terms and significant detail the difficulties in obtaining a CSID in the absence of other identity documents (in particular a previous CSID or birth certificate) and without being able to trace one’s family’s page and volume number in the ledgers held at the CSA offices.

  • It was not disputed that country guidance has a special status and if it is not followed in the absence of anything else it would amount to a ground of appeal on a point of law (even though based on a finding of fact). The country guidance remains in place until it is expressly superseded or replaced.

  • The Court in SS observed that relevant country guidance in this case was as recent as 12 June 2018 and the new evidence upon which the Secretary of State relied came to light in September/October 2018 and the CPIN was created in October 2018 (a mere four months later).

  • The Court found that given the recent nature (at the time of the Secretary of State’s decision in this case, November 2018) of the country guidance even in a situation which might be evolving/changing, it would require very careful consideration and scrutiny even of fresh clear and cogent evidence for it to be relied on as “strong grounds” sufficient to supersede such recent country guidance

  • The Secretary of State has to look at all the available material and information when considering whether or not the country guidance with its special status, remains applicable. The Court did not accept that the Secretary of State was “compelled to apply” the CPIN. It was considered that the CPIN is additional information to be taken into account where appropriate following an analysis of the relevance/importance of the information to an individual case and by comparison with the current country guidance.

  • Given the crucial importance of the CSID and as set out at paragraph 100 of the decision in AAH, it was a critical part of the Secretary of State’s enquiry when considering the Claimant’s further submissions to ask whether the Claimant, not being in possession of CSID, was reasonably likely to be able to obtain one and to obtain one in a reasonable timeframe.

  • The Secretary of State had acted on oral information and sought confirmation of it, and having obtained the two letters, amended the CPIN and then relied on it in preference to the country guidance in making the decision in the claimant’s case.

  • An analysis of the two short sections of the two letters relied on in the CPIN showed, that they did not amount to clear cogent evidence amounting to strong grounds to say that a CSID is now “easily obtainable” in Iraq by a returnee. They were limited to the facts they state. One had to consider to what extent that could or should alter or amend the country guidance.

  • It was known that the central archive does not issue CSIDs. There was no information in either letter about the “microfilm” database.

  • There was nothing in the new information to suggest that headnote item 1 (i) in AAH about the difficulty in obtaining a CSID without other documentation or about the need to “trace back” to the family record had changed. There was no reference to the length of time it would take to obtain a CSID and it still seemed that family and birth details are required. Dr Ali did not refer to the microfilm back up in Baghdad but only to the local CSAs. It is known that many records were destroyed and it was known that many details of births etc had not been maintained. It was not known what proportion of the original records had been preserved. There was no information about the records held in the alternative CSAs in Baghdad or if they were searchable or accessible or if they were, by whom they could be searched or accessed.

  • The Court did not know if the Claimant’s records exist. There was nothing to suggest that the ledgers containing handwritten entries referred to by Dr Fatah had altered in form even if now preserved “digitally”. There was no reference to whether or not there remains a huge backlog for the three years from 2014 to 2017. There was no mention of when and how such a backlog might have been dealt with. The correspondence did not address Dr Fatah’s evidence about the attitude of officials in assisting undocumented IDPs.

  • Although not cited by the Secretary of in the CPIN, the correspondence made it clear that for example a certification letter “is issued on a case-by-case and depending on the availability/unavailability documentations”. There was nothing in this correspondence to support the contention that there is any degree of certainty about the re-documentation of returnees.

  • The correspondence relied on and included in the CPIN, taken at its face value established no more than that there is a digital record in each governorate accessible to assist in determining a returnee’s identity but it is not clear when this was created or if or how it can be searched or if it contains the Claimant’s records. There is a backup central register in Baghdad on microfilm but it is not clear whether that is searchable, what records it holds, whether it would include the claimant’s records, whether it is the same as the archive referred to in the country guidance cases, or whether it can be accessed by a returnee to establish identity sufficient to acquire a CSID.

  • The Court stated that whilst the defendant could rely on the CPIN, it must be seen as part of the totality of the evidence. Although the new information may be relevant, it is not sufficiently clear and coherent to constitute strong enough grounds to supersede the country guidance. It may supplement it but it certainly gave rise to the need for further enquiries.

  • The information was that the only document the Claimant had was a laissez-passer. If that was confiscated he would have no documentation at all. Even with it, it would not help with his identity documentation. It was for this reason that the country guidance remains that the laissez-passer does not count when considering how a returnee can obtain a CSID.

  • Even looking at the decision letter holistically, the Court could not find that the Secretary of State considered the Claimant’s specific circumstances/characteristics either in accordance with the information in 1 (iii) of the head note to AAH or item 10 of the Guidance in AA.

  • The Court found that if the country guidance “had been applied unadorned and unamended” the claimant submissions would undoubtedly have given rise to a fresh claim. The Claimant did not have to show that he would be bound to succeed and it could not be said in this case that an immigration judge would be bound to conclude that the CPIN and information available overrode the country guidance or would override it in the Claimant’s case.

  • The Court concluded that the Secretary of State was wrong to apply the CPIN rather than follow the country guidance because: the information/evidence in the CPIN was limited in both scope and content; the new evidence was not clear as to its actual effect in Iraq; the decision-maker failed to consider how it would affect SS’s ability to obtain a CSID within a reasonable timeframe and; the recent country guidance was recent, comprehensive, detailed and reliable in comparison. The Secretary of State was wrong to consider himself compelled to apply the CPIN.

  • The Court concluded the decision to refuse to accept the Claimant’s further representations as amounting to a fresh claim was unreasonable. The decision was Wednesbury unreasonable in the sense that no reasonable Secretary of State could have concluded that the Claimant’s claim had no realistic prospect of success before the immigration judge. Informed by anxious scrutiny of the material, including both the country guidance and the CPIN, but also the information pertaining to the Claimant himself, the Secretary of State should have concluded that there was a realistic prospect of success.

 

Observations

 

The CPIN that was considered by the Administrative Court was dated October 2018. The Secretary of State has since then published an updated Note: Country policy and information note: internal relocation, civil documentation and returns, Iraq, February 2019

 

The current Note however replies upon the same two letters of 5 September 2018 and 2 October 2018 referred to and ripped to shreds by the Court in SS:

 

“2.5.13 A letter dated 5 September 2018 to the Home Office from the Iraqi Ambassador to the United Kingdom confirmed that ‘all the returnees’ papers are checked on arrival and they are received with courtesy at Baghdad International Airport [BGW] and may be provided with a certification letter.’ The Ambassador further confirmed that a laissez passer or ‘certification letter’ can be used to ‘continue their onward journey to their final destination in Iraq … [including by] road … which help them pass through other designated checkpoints.’ (see Annex A)

 

2.5.14 Information about the ‘certification letter’ can be found in a letter from the Iraqi Embassy in London dated 2 October 2018 (see Annex B).

 

2.6.15 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.’ (see Annex A).

 

2.6.16 In AA, the UT 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.’ (see Annex B)

 

2.7.5 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) (see Annex A). 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’s finding explained at paragraph 135(4) (see paragraph 2.7.3 above).

 

2.7.6 The Iraqi Embassy in London confirmed the ‘same procedures are applied to all the returnees onward travel from Baghdad to KRG [Kurdistan Regional Government] or any city in Iraq’ and ‘Representatives from the repatriation committee would be available at Baghdad International Airport and ready to receive a returnee’ (see Annex B).

 

The Court in SS was clear at paragraph 90:

 

“Whilst the defendant can rely on the CPIN, it must be seen as part of the totality of the evidence. I find that this new information whilst it may be relevant, is not sufficiently clear and coherent to constitute strong enough grounds to supersede the CG. It may supplement it. It certainly gives rise to the need for further enquiries”.

 

If not challenging the decision of the Admin Court further, the Secretary of State is now on notice as regards the deficiencies of his evidence/CPIN. That will need to be borne in mind where the relevant Country Guidance case listed for a 5-day hearing on 24 June 2019 is still to be heard.

 

Where Iraqi claimants are concerned, it should be borne in mind that the Secretary of State in SS did refer to the unreported case of Rasoul v SSHD PA/13927/2016, an appeal to the Upper Tribunal where the Upper Tribunal judge was satisfied that the most up-to-date evidence showed that there was a central register in Baghdad which included all the civil records of all the provinces and “given that the appellant did give evidence that he had an Iraqi passport and ID documents previously, there are documents in existence which could prove his identity”. The Upper Tribunal judge felt that the claimant in that case could approach the Iraqi authorities in the United Kingdom to obtain a replacement passport/laissez-passer and could approach the Iraqi Embassy in London and through them obtain a CSID to enable him to return to Iraq and travel from Baghdad to Kirkuk. The Court in SS however made it that it was apparent that the claimant in Rasoul was still in the UK and had acknowledged that he previously had documentation. Further, he was intending to travel to Kirkuk which at the date of the decision was no longer a contested area.

 

A claimant who therefore has or previously had documentation such as an Iraqi passport and ID documents would very likely be expected to approach the Iraqi Embassy in London so as to obtain a CSID which would enable him to return to Iraq and travel from Baghdad to his home area( where it is no longer a contested area) or to the KRI.

 

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