AA v The Secretary of State for the Home Department

Introduction

1. Each member of the panel has contributed to this decision. The appeal comes before us by order of Davis LJ sealed on the 25 October 2012, who remitted it: “ … for reconsideration pursuant to paragraph 12 of schedule 4 to the Transfer of Functions of the Asylum and Immigration Tribunal Order 2010 and section 14 of the Tribunals Courts and Enforcement Act 2007 ” .

2. This case has been identified to give country guidance on Iraq in light of circumstances in that country that have arisen since the decision in HM and others (Article 15 (c)) Iraq CG [2012] UKUT 00409 (IAC) (“HM2”). Our consideration has been limited to the issue of whether Article 15(c) of Council Directive 2004/83/EC A Recast Qualification Di rective, Directive 2011/95/EU, was adopted on 13 December 2011 and is binding on all EU Member States except for UK , Denmark and Ireland , who have opted out. (“the Qualification Directive”) prevents the removal of Iraqi nationals, and in particular the Appellant, to Iraq on the basis that they are entitled to subsidiary protection.

3. The Appellant is a national of Iraq who entered the United Kingdom on 7 January 2009, aged 17. He applied for asylum on the following day, having first been arrested. This application was refused by the Respondent on 18 June 2009 and on the same date a decision was made to remove the Appellant to Iraq pursuant to section 10 of the Immigration and Asylum Act 1999 . The Appellant appealed this decision to the Asylum and Immigration Tribunal on Refugee Convention, humanitarian protection and human rights grounds, but his appeal was dismissed by Immigration Judge Batiste in a determination dated 7 September 2009. On 27 January 2010 Burnett J (as he then was) ordered the Tribunal to reconsider the Appellant’s appeal. Thereafter, on the 23 June 2010, Deputy Upper Tribunal Judge Wynne set aside the determination of Immigration Judge Batiste on the basis that: “… the IJ’s treatment of the expert evidence was contradictory because the IJ preferred the expert on factual matters to the COIS report but approached the report with “a great deal of circumspection” and placed “very limited weight” on it. Thus the IJ rejected aspects of the expert evidence whilst accepting other parts of it without adequate reasons for adopting this approach. … because the Appellant was at the relevant time under the age of 18, the IJ was wrong in taking into account what he is alleged to have said at his age assessment by social workers. … the IJ’s rejection of the Appellant’s humanitarian protection claim under Article 15c of the Qualification Directive is flawed for inadequate reasoning”

4. The re-making of the decision on the Appellant’s appeal was adjourned and came back before Judge Wynne on 22 February 2011, on which occasion the Appellant gave further oral evidence. Judge Wynne dismissed the Appellant’s appeal on all grounds in a determination dated 1 April 2011. In doing so it was accepted that: (i) the Appellant lived in the family home in Dubis, Kirkuk until he left Iraq at the end of 2008 to travel to the United Kingdom; (ii) the Appellant’s father died in 2006; and, (iii) the Appellant’s cousin is a lorry driver who remains living in Iraq, and is based in Kirkuk. Judge Wynne did not accept the truth of the Appellant’s evidence that: (i) his father had been a high ranking Ba’ath official, (ii) his uncle had been a Ba’ath official of lesser rank than his father and, (iii) his family (mother and sisters) had left Iraq for Syria.

5. The original grounds seeking permission to appeal from the Court of Appeal related solely to Judge Wynne’s assessment of the credibility of the evidence given by the Appellant. Moses LJ refused to grant the Appellant permission in relation to such grounds. However, shortly thereafter the Court of Appeal handed down its judgment in the case of HM ( Iraq ) v Secretary of State for the Home Department [2011] EWCA Civ 1536 . This prompted the Appellant to amend his grounds to rely upon the terms of that judgment. Laws LJ subsequently granted permission to appeal in relation to the amended ground only and, as identified above, Davis LJ later allowed the appeal, without a hearing, and the matter was remitted to the Upper Tribunal for “reconsideration”. Paragraphs 6 and 7 of the Statement of Reasons attached to the order of Davis LJ read: “6. The Respondent accepts that this appeal should be remitted to the Upper Tribunal for reconsideration under article 15(c) of the Qualification Directive only… 7. For this reason, the parties are agreed that the matter be remitted back to the Immigration and Asylum Chamber of the Upper Tribunal for re-hearing of the appeal by the Tribunal.” The Evidence – A Summary

6. The Appellant produced written evidence from Dr Rebwar Fatah, contained in reports dated 27 February 2015, 8 April 2015 and 1 May 2015. Dr Fatah also gave oral evidence before us. In addition to the evidence provided by Dr Fatah , there was also a considerable amount of other documentary evidence before us, a schedule of which is attached as Appendix A hereto. The Appellant was not called to provide oral evidence. We have had regard to all of the material before us, both written and oral, when coming to our conclusions. Written Evidence of Dr Fatah

7. Dr Fatah was awarded a BSc and MSc by the University of London and a PhD by University College London and worked in commercial and strategic positions from 1989-2001 for British Telecom, Fujitsu, Nortel Networks and 186K. Since 2000 he has been working as an expert producing country reports , nationality assessments and document authentication reports for solicitors’ firms in the United Kingdom , the Netherlands , the United States and Norway . He has also acted as a consultant to the Commissioner General for Refugees and Stateless Persons of Belgium and with the Finnish League for Human Rights. He speaks Kurdish Sorani and Arabic in addition to English.

8. Since 2000, he has completed approximately 2,000 expert reports (these include reports for four country guidance cases) as well as over 100 scientific, technical and commercial conference papers. He is the founder of the Middle East Consultancy Service (“MECS”). This service has provided in-depth research for UNHCR, International Organisation for Migration-Iraq, Transparency International and Risk Advisory. He travels to Iraq and IKR on a regular basis and was most recently there between 31 August and 16 September 2014 and 29 January and 6 February 2015.

9. In his 90 page report, dated 27 February 2015, Dr Fatah addresses the general security situation in Iraq in some detail, with particular reference to the ‘disputed territories’, Baghdad , the south and the IKR. He thereafter provides in depth evidence in relation to the issue of relocation within Iraq , focusing on Baghdad and the IKR and, in particular, the economic and humanitarian situation in those areas and the obtaining of identity documentation.

10. In his report of 8 April 2015 Dr Fatah provides detailed evidence on the demography and security situation in Baghdad, with particular consideration being given to whether non-state militia are present in Baghdad, whether they have de facto control of any civilian urban areas within the Baghdad governorate; whether they target civilians and, if so, how and who. Thereafter he addresses issues relating to road travel in the south of Iraq and the circumstances prevailing in the southern governorates. Dr Fatah then sets out a summary of the contact he, or his organisation, has with, inter alia , the Ministry of Interior of Iraq, the Ministry of Displacement and Migration, an Iraqi MP, UNHCR-Iraq, the International Organisation for Migration, the Norwegian Refugee Council and USAID Iraq Access for Justice – identifying in particular the role that these organisations play in Iraq. He finally turns, in his second report, to further consider relocation to the IKR and, in particular, the mechanics of entry into and residence within that region.

11. In the latter of his three reports Dr Fatah addresses the nature and extent of Baghdad ’s “Central Archive” of civil records. Oral Evidence of Dr Fatah

12. In oral evidence Dr Fatah attested to the accuracy of his written reports and expanded further on matters set out therein. He referred to the evidence already provided as to the documents an Iraqi national is required to produce to the Iraqi consulate in London in order to obtain a laissez-passer. A laissez-passer is not a recognised form of identity document in Iraq . A recognised Iraqi identity document is required in order to move around Iraq and access services there.

13. Dr Fatah was referred to the conclusions found in paragraph 91 of the Tribunal’s decision in MK (documents – relocation) Iraq CG [2012] UKUT 00126 (IAC) i.e. that a healthy adolescent or adult Iraqi would have memorised or have access to the book, page, and volume number of the location of their family record. He disagreed with this conclusion, although he accepted that some people would remember these details. Iraqi nationals do not need to recall such details because they have to produce the actual identity document when they wish to rely upon it. Each member of a person’s immediate family i.e. wife and children is listed on the same pages. The 2014 Landinfo report Iraq : Travel documents and other identity documents , relied upon by Dr Fatah, explains that before marriage an individual will appear on pages in the family record with his or her parents and siblings and after any marriage he or she will be listed on pages including his or her spouse and any of their own children. Therefore, immediate family members will have the same file and page number in the family records. If a person’s family record is moved to a different file and/or page , the old record identifies this fact, as well as details of where any new record is to be found. The Civil Status Identity Document (“CSID”) is the most important document and is a gateway to all other identity documents.

14. Obtaining a replacement CSID requires production of evidence confirming identity. If a person has no documents to prove his identity it is possible to make a request to the National Status Court to issue a verdict as to that person’s identity. This requires such person to produce two witnesses, each of whom must have a CSID, who would have to convince a judge of the person’s identity and the fact that he/she has lost their CSID. The documentary record of this verdict can thereafter be produced to the Civil Status Office. This could take “three weeks or longer” depending on the area. The Baghdad office is busy.

15. Moving on to the economic situation in Iraq , Dr Fatah observed that the price of oil has crashed – oil revenue forming a significant part of Iraq ’s GDP. ISIL either destroys or controls output from the oil fields in the contested areas. The other industries in the contested areas have also disappeared.

16. ISIL have now taken control of Ramadi. It can reach places as close as 20 km from Baghdad . Over 100,000 people have fled from Ramadi. These IDPs are being put into documentation centres by the Iraqi authorities and are required to prove who they are. IDPs are supported by local and international agencies as well as the Iraqi authorities. This is a significant burden on such agencies. Under cross-examination

17. Dr Fatah maintained that the most unstable area of Iraq is the line of conflict south of the IKR border. He agreed: (i) that the violence in Mosul ‘ebbs and flows’; (ii) that the categorisation of the level of violence in particular areas of Iraq identified in his reports (i.e. high, medium, low or less than low) was undertaken by reference to the number of civilian deaths and injuries in those areas; (iii) Baghdad has a population of between 6 and 7 million people; and, (iv) the population of an area is a relevant consideration in the assessment of the intensity of violence in such area. He further observed that it is attractive to an insurgent group to penetrate into Baghdad because there are areas, such as market places, in which thousands of people can be killed in one incident – thus creating fear and media attention, which they seek. Dr Fatah also accepted that there is an underlying level of criminality in Baghdad , much as there is in all major cities around the world. He was unaware of any figures relating to this.

18. Dr Fatah continued by confirming that ISIL has never been in control of Baghdad , but that they do have influence in some neighbourhoods. Baghdad has a majority Shia population, although there are Sunni areas – these being identified in his first report. The curfew in Baghdad was lifted on 7 February 2015. There was no consistent wave of violence as a consequence of the lifting of the curfew. Although there were incidents on 10 February 2015, these could not be linked to the lifting of the curfew.

19. Dr Fatah was asked whether he thought Landinfo to be a reputable and reliable organisation – he confirmed he did. He agreed that communications, transport, trade and industry go on functioning in Baghdad – as he said, “Life goes on.” The roads in and to the south of Baghdad are not targeted by militia groups, but the checkpoints are.

20. Turning to the issue of documentation – if a person wishes to obtain a laissez-passer that person must convince the consulate of their nationality and identity. A person in the UK can use a family member or lawyer with a power of attorney in Iraq as a proxy in order to obtain identity documentation. For example, a family member or lawyer can attend court in Iraq on a person’s behalf to confirm such a person’s family record details.

21. Dr Fatah also said that if an individual had lost or wanted to renew his CSID in London , he would need to provide the Iraqi Embassy with the relevant reference numbers for his CSID before it would issue a replacement. He was specifically asked whether the parents of a person in London without a CSID could go to the Iraqi authorities, with their identity documentation, and obtain confirmation that the family record shows that they have a child and the date of the birth of such child. He saw no procedural problems with this. He cautioned, however, that it would be speculation to conclude that the consulate would necessarily accept the identity of a person in London as a consequence of production to them of the type of confirmation previously identified. The Iraqi family records confirm only that there is a person with such details.

22. The process and documents required to obtain CSID from the consulate in London is set out in the report of 27 February 2015 [paragraph 232 therein]. Notarised colour copies of a person’s parents’, or sibling’s, documents would probably suffice to prove a person’s identity – “It is necessary to prove who you are beyond reasonable doubt” . Dr Fatah noted that if a person in the UK did not have a CSID and had no family in Iraq it would be possible for a friend of that person, with a CSID and a power of attorney, to go to court in Iraq and vouch for such person’s identity.

23. Dr Fatah agreed that there is evidence of a ‘central archive’ in Baghdad – the issue is how comprehensive the archive is. The Kurdish authorities claim not to have sent any records to Baghdad since 1991.

24. As regards the IKR, there are flights there from Baghdad every second day and flights directly from London . Dr Fatah accepted that he had not interviewed anyone at Erbil airport when providing his opinion as to the requirements of entry into the IKR. He thought the imposition of entry requirements for the IKR to be arbitrary and dependent upon the person manning the entry point. He had spoken to an Iraqi national who had not been asked for a sponsor when travelling to the IKR in February/March 2015 but who had recently been informed that a sponsor was required. He believed that persons entering IKR to study require a sponsor and that Arabs are not wanted in the IKR – the UNHCR also agreed that single Arabs have problems entering the IKR. A Kurd from outside the IKR can obtain entry for 10 days as a visitor and then renew this for a further 10 days. If such a person finds employment they can remain for longer, although they will have to register with the authorities providing details of the employing company’s name. A work permit can also be renewed, however, if a person loses their employment they will have to leave the IKR. Dr Fatah was not aware of whether the IKR authorities proactively remove Kurds from the IKR whose permits have come to an end. Under re-examination

25. Dr Fatah averred that the ability to renew a visit permit for the IKR is event driven and dependent on the particular Asayish The official security organisation of the Kurdish Region of Iraq officer considering the application. He did not think that the laissez-passer used by a person to return from the UK to Baghdad could be used for an onward trip to the IKR. The laissez-passer is a document valid for one trip and is likely to be taken by the authorities on arrival in Baghdad .

26. In response to questions from the Tribunal, Dr Fatah confirmed that on return to Iraq a current or expired Iraqi passport can be used to obtain a CSID.

27. Dr Fatah also said that in order to obtain a laissez-passer from the Iraqi consulate a person would need to demonstrate their nationality and identity and that consideration of the evidence would be on a case by case basis. He also said that he presumed that the individual would have to produce a photocopy of a previous passport and a report from the police confirming that it had been lost or stolen, a CSID or a nationality certificate. Landinfo, in its 2014 report, confirm the same. It would not be sufficient for an individual to simply provide the page and file number for his CSID.

28. After the hearing, and in response to questions raised by the Tribunal, Dr Fatah provided the following additional evidence by way of an e-mail dated 19 May 2015. He had visited Arbat IDP camp on the outskirts of Sulaymaniya in the KRG. The camp was divided according to ethnic and religious groups. It was expanding. The number of children was exceptionally high, there being 2300 families there. There were physical dangers in the camp such as a big pond with no barriers to protect the children. The camp is funded by local and international agencies. There is another camp in the same district housing Syrian refugees. As a consequence the public services in the area are under great pressure. The IDPs are not subject to the normal ‘visa’ requirements because they are controlled and registered with the Asayish. Entry and exit to the camp is controlled. IDPs are allowed to leave the camp to work, see friends and walk around. Dr Fatah understands that returned asylum seekers are not treated as IDPs.

29. Dr Fatah thereafter identified that USAID has provided evidence that each displaced family in Iraq is provided with one million Iraqi Dinar by the government unless the family is headed by a women over 35 in which case 500000 dinar is provided; single people receive 200000 Dinar. A CSID, INC or passport is required in order to register for these monies. Cash benefits are only provided to the head of household and family relationships must be documented. In the IKR IDPs need a copy of either their CSID, INC or passport in order to obtain a residency letter, without which the IDP may not be able to register for the monies or other services. IDPs are not permitted to travel within the IKR because residency cards are only applicable in the governorate of issue. All government procedures in the IKR are being delayed due to the large number of IDPs. Amnesty International

30. Amnesty International also provided a report, dated 14th May 2015, which was written for the specific purposes of the instant case, and which made observations about the current situation in Iraq . In paragraphs 12 and 13 of its report Amnesty International state as follows regarding the information that led it to the conclusions summarised below: “The information to be provided in this matter is sourced from Amnesty International’s Iraq Team, part of the Middle East and North Africa Programme, which carries out research and advocacy work on countries in the region including Iraq . The Iraq Team consists of experienced research and campaigning staff who conduct research both in the field, where possible, and from AI’s various offices. The Team receives information from a wide variety of sources. These sources include state and officially sanctioned, or permitted sources, such as online newspapers and state broadcasters; a wide range of websites and blogs; human rights activists, including lawyers and community workers and from detainees and their families. Other sources include journalists, refugees, diplomats, religious bodies and humanitarian agencies. The team monitor online news outlets and newspaper websites and other media outlets… Amnesty’s crisis senior researcher…has conducted on the ground research during the current crisis and documented a wide range of human rights abuses…”

31. In summary, Amnesty International concluded that: “[t]he areas held or contested by IS Referred to as ISIL throughout this decision. contain very substantial dangers of killing and other human rights abuse of the utmost gravity, including torture and sexual violence. Baghdad city continues to be one of the most dangerous cities on earth, with mass-casualty terrorist incidents perpetrated both by IS supporters and armed militias, as well as kidnappings and murders by such militias against Sunnis, other minority groups and those perceived as likely to be worth ransom money” . It expressed serious concern “ at the prospect of Iraqis from the contested zones being returned to Iraq on the basis that it would be reasonable for them to relocate to Baghdad or the IKR.”

32. The report noted in particular that “while Amnesty International had been expressing serious concerns regarding the human rights conditions in Iraq for many years, the events of the last year have rendered the country one of the most dangerous in the world” . It added that “the rise of the armed group calling itself Islamic State (IS) across both Iraq and Syria has led to extraordinary levels of violence occurring across the country and on a daily basis” . It then reviewed reports by the UNHCR, the US Institute for the Study of War and various newspapers relating to the areas in Iraq currently held by ISIL and added that it regarded the situation as highly volatile, fluid and subject to change at very short notice. Reference is made to Amnesty’s own reports on the scale of human rights abuses by ISIL and the mass exodus of Shi’a Muslims, Christians and other minorities from the areas captured by ISIL. In particular, it noted that in September 2014 it was reported that “the group that calls itself the ISIL has carried out ethnic cleansing on a historic scale in northern Iraq ” . In addition it is noted that the UN Assistance Mission in Iraq had found evidence of numerous examples of targeted executions carried out by ISIL and the use of mass graves.

33. Amnesty International also observed that “IS operatives, supporters and allied groups (chiefly sectarian Sunni militia) have regularly perpetrated attacks [outside the contested areas], chiefly through the use of Vehicle Borne Improvised Explosive Devices (VBIED), Improvised Explosive Devices (IEDS), bombings, suicide bombings, mass shootings and targeted assassinations” . A review was undertaken of the known statistics for the number of Iraqis killed and wounded in February 2015 and observation was made that Baghdad was the worst affected governorate with 1,165 civilian casualties. In addition, the report listed a variety of attacks in many areas of Baghdad in May 2015, which involved IEDs, VBIEDs, beheadings, shootings and rocket attacks – it being stated that “perpetrators appear to vary but include individuals resident in the city allied to IS or in sympathy with them, members of clandestine militia and terrorist groups; and sectarian militias and members or sympathisers of IS who succeed in entering the city from IS held territory” . As a result, checkpoints have been set up around entrance points to Baghdad and militiamen at one such checkpoint told a person, whom they were unaware was a representative of Amnesty International, that “if we catch ‘those dogs’ [Sunnis] coming down from the Tikrit area we execute them; in those areas they are all working with DA’ESH (ISIL). They come to Baghdad to commit terrorist crimes. So we have to stop them.” It also noted that it , “along with many other independent international observers, have documented for months the use of retaliatory and sectarian attacks by government forces and Shi’a militias against Iraq ’s Sunni population and other minority groups” .

34. The report continues by noting that the Jamestown Foundation have provided an outline of the leading Shi’a militia groups currently operating in Iraq, which says that “it is estimated that close to a million volunteers answered Sistani’s call [for Iraqis to form militias to fight ISIL] and signed up in the following weeks and months. Some of the most important militias under the Hashd al-Sha’abi include the Badr Organization, Saraya al-Salam, Asa’ib, Harakat Hezbollah al-Nujaba, Saraya Taleaa al-Khorasani and Kata’ib Imam Ali”. It added that “Hashd al-Sha’abi is assisted by Iran via General Qasem Soleimani, the head of Iran ’s elite Quds Force, the overseas paramilitary wing of the Islamic Revolutionary Guard Corps” . In addition, it observed that “Hashd al-Sha’abi is funded by the Iraqi government, which not only provides the fighters’ salaries but also its military capabilities” . The report went on to identify that the Shi’a militias “were substantially responsible for preventing the complete overrun of Iraq by ISIL forces after the collapse of the Iraqi army in the summer of 2014. They have since been heavily engaged in the anti-ISIL fighting alongside ISF troops. However, they have also been documented to have engaged in large scale sectarian violence against Iraq ’s Sunni population both in areas outside of IS control and in recently ‘liberated’ areas” . It is later observed that “while the rise of IS and the brutality of its behaviour has been widely documented in the international press, this concurrent rise in sectarian murder by Shi’a militias and Iraqi government forces has received less mainstream attention” .

35. The report continues by identifying that there has been a “[p]attern of Shi’a militia attacks, justified by the perpetrators as retribution and retaliation for IS activities but frequently motivated by sectarian hatred and ordinary criminality, has continued” – subsequently adding that “[w]hile the majority of sectarian killing appears to be between the adherents to the Sunni and Shi’a Islamic faiths, Amnesty shares the concerns of many other international observers that sectarian violence appears to be spreading through other communities, as the ongoing conflict appears to be breaking down what remains of the inter-communal bonds within the Iraqi state as a whole.” Home Office Country Information

36. In paragraph 1.3.34 of its Country Information and Guidance – Iraq: the security situation in the ‘contested’ areas of Iraq (August 2014), 22/08/2014 it is concluded that the contested areas of Iraq, include Kirkuk, Diyala, Anbar, Salah al Din and Ninewah governorates and should be considered as areas of internal armed conflict for the purposes of any risk assessment . It is further stated that “although all cases must be considered on their individual merits, based on the current objective evidence, decision makers are advised that in the vast majority of cases, the combined individual and collective risk factors are such that return to a contested area would be in breach of Article 15 of the Qualification Directive and therefore a grant of Humanitarian Protection would be appropriate if internal relocation was not possible” .

37. At paragraph 1.4.1 of its later Country Information note – Iraq: Internal relocation (and technical obstacles), 24/12/2014 the Home Office conclude that current return arrangements from the UK to Iraq, either via Erbil or Baghdad, do not breach Article 3 of the ECHR. However, at paragraph 1.4.3 thereof it also stated that “a person returned to Iraq who was unable to replace their Civil Status ID Card or Nationality Certificate would likely face significant difficulties in accessing services and a livelihood and would face destitution which is likely to reach the Article 3 threshold ”.

38. In its April 2015 guidance Iraq : Security situation in Baghdad , southern governorates and the Kurdistan Region of Iraq , , the Home Office state that: (i) The security situation has deteriorated in Baghdad , Babil, and the southern governorates, while the situation remains relatively stable in the IKR. However, the situation has not deteriorated to such an extent that it has reached a level where it can be said that in general the situation for ordinary civilians in these governorates breaches Article 15(c) of the Qualification Directive. (ii) Decision makers should consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at enhanced risk, particularly in Baghdad and Babil governorates; (iii) The security situation remains fluid and decision makers should take into account up-to-date country information in assessing the risks faced by applicants; (iv) Internal relocation may be a viable option but only if the risk is not present in the place of relocation and it would not be unduly harsh to expect a person to relocate. Each case must be considered on its individual merits.

39. In relation to Baghdad in particular it is concluded that “there currently exists a state of internal armed conflict between ISIL and the Government of Iraq and its allies in Iraq, with the violence principally in northern, central and western areas of Iraq” , and “although recent successes by Kurdish, GoI and US-Coalition forces have pushed back ISIL from territories it occupied in mid-2014 and degraded its military capabilities, ISIL remains in control of parts of the country, although not in Baghdad governorate. ISIL continues to perpetrate attacks in Baghdad governorate, with an ultimate goal of securing its so-called ‘Caliphate state’ in Iraq and Syria ” .

40. It further said that “there are a range of armed actors currently operating in Baghdad governorate, including Shiite and Sunni militias, extremist Islamic groups including ISIL, organised criminal gangs as well as Iraqi security forces. However, there were no reports that ISIL, or other Sunni extremist groups, exercise de facto control in any district of Baghdad City or Baghdad Governorate” .

41. As to the southern governorates, it is opined that the security situation in the governorates of Basra , Kerbala, Najaf, Muthanna, Thi-Qar, Missan, Quadissiya and Wassit remained relatively stable in 2014 and that in general return there would not give rise to a breach of Article 15(c). Similarly, in relation to the IKR, it said that the security situation in the governorates of Erbil , Sulamaniyah and Dahuk was stable in 2014 with low levels of violence.

42. Finally in relation to Babil the Respondent concludes in her Country Information and Guidance titled ‘Iraq: Security situation in Baghdad, southern governorates and the Kurdistan Region of Iraq (KRI)’ that “there has been a deterioration in the security situation in Babil governorate since 2012 and 2013 ” and that “the government maintains control over the majority of the governorate, including the northern part of Babil around Jurf Al-Sakhr, which was previously an ISIL strong-hold from which it launched attacks on the surrounding area and manufactured car bombs. By the end of 2014 ISIL’s presence in Jurf A-Sakhr had been cleared, with insurgents routed further north. This military success had improved the security situation considerably. However there remained a risk of further violence, both from renewed armed conflict and as a result of IEDs left behind by insurgents” .

43. At paragraph 1.3.25 it is further said that “ while levels of violence have increased in Babil compared to previous years, conditions have not deteriorated to the extent that a person returning there would face a breach of Article 15(c)” . However, it adds that “while in general a return to Babil would not breach Article 15(c), decision makers must also consider whether there are particular factors relevant to the person’s individual circumstances which might nevertheless place them at risk. Such factors include – but are not limited to – the person’s age, gender, health, ethnicity, religion, sect, disability and profession. Some persons, especially those who reside in areas where they are a minority, may face a heightened risk of indiscriminate violence” . UNHCR’s position paper

44. The UNHCR’s view on returns to Iraq is set out in its position paper of 27 October 2014, the conclusion to which reads: “[27] As the situation in Iraq remains highly fluid and volatile, and since all parts of the country are reported to have been affected, directly or indirectly, by the ongoing crisis, UNHCR urges States not to forcibly return persons originating from Iraq until tangible improvements in the security and human rights situation have occurred. In the current circumstances, many persons fleeing Iraq are likely to meet the 1951 Convention criteria for refugee status. When, in the context of an adjudication of an individual case of a person originating from Iraq , 1951 Convention criteria are found not to apply, broader refugee criteria as contained in the relevant regional instruments or complementary forms of protection are likely to apply. In the current circumstances, with massive new internal displacement coupled with a large scale humanitarian crisis, mounting sectarian tensions and reported access restrictions, particularly into the Kurdistan Region of Iraq, UNHCR does in principle not consider it appropriate for States to deny persons from Iraq international protection on the basis of applicability of an internal flight alternative or relocation alternative.” Existing Country Guidance

45. The core of the current country guidance relating to the circumstances in Iraq dates back to the decision in HM and Others (Article 15(c)) Iraq CG [2010] UKUT 00331 (IAC) (“HM1”) in which the Tribunal concluded (i) that enforced returns to Iraq could take place because the degree of indiscriminate violence did not reach such a high level in any part of Iraq so as to show substantial grounds for believing that any civilian returned there would face a real risk within the meaning of Article 15(c); and, (ii) even if such a risk were to be shown to exist in some areas of Iraq, internal relocation would achieve safety and would not in all circumstances be unduly harsh.

46. HM1 was successfully appealed to the Court of Appeal; however, the court did not consider it necessary to deal with any of the substantive grounds but rather allowed the appeal on purely procedural grounds. There then followed two further country guidance decisions relating to Iraq : MK (promulgated on 23 April 2012) and HM2 (promulgated on 23 November 2012).

47. The headnote to MK reads: “ (1) Since the lack of documentation relating to identity in the form of the Civil Status ID (CSID), Iraqi Nationality Certificate (INC) and Public Distribution System (PDS) card (food ration card) is not ordinarily an insuperable problem, it is not a factor likely to make return to any part of Iraq unsafe or unreasonable. (a) The CSID is an important document, both in its own right and as a gateway to obtaining other significant documents such the INC and the PDS. An inability to replace the CSID is likely to entail inability to access the INC and PDS. (b) Although the general position is that a person who wishes to replace a lost CSID is required to return to their home area in order to do so, there are procedures as described in this determination available which make it possible (i) for Iraqis abroad to secure the issue of a new CSID to them through the offices of the local Iraqi Embassy; (ii) for Iraqis returned to Iraq without a CSID to obtain one without necessarily having to travel to their home area. Such procedures permit family members to obtain such documentation from their home areas on an applicant’s behalf or allow for a person to be given a power of attorney to obtain the same. Those who are unable immediately to establish their identity can ordinarily obtain documentation by being presented before a judge from the Civil Status Court , so as to facilitate return to their place of origin. (2) (a) Entry into and residence in the KRG can be effected by any Iraqi national with a CSID, INC and PDS, after registration with the Asayish (local security office). An Arab may need a sponsor; a Kurd will not. (b) Living conditions in the KRG for a person who has relocated there are not without difficulties, but there are jobs, and there is access to free health care facilities, education, rented accommodation and financial and other support from UNHCR. (3) Despite bureaucratic difficulties with registration and the difficulties faced by IDPs, it is wrong to say that there is, in general, no internal flight alternative in Iraq, bearing in mind in particular the levels of governmental and NGO support available. (4) Whilst the situation for women in Iraq is, in general, not such as to give rise to a real risk of persecution or serious harm, there may be particular problems affecting female headed households where family support is lacking and jobs and other means of support may be harder to come by. Careful examination of the particular circumstances of the individual’s case will be especially important.”

48. In HM2 the Tribunal concluded as follows: i. “Whilst the focus of the present decision is the current situation in Iraq , nothing in the further evidence now available indicates that the conclusions that the Tribunal in HM1 reached about country conditions in Iraq were wrong. ii. As regards the current situation, the evidence does not establish that the degree of indiscriminate violence characterising the current armed conflict taking place in the five central governorates in Iraq, namely Baghdad, Diyala, Tameen (Kirkuk), Ninewah, Salah Al-Din, is at such a high level that substantial grounds have been shown for believing that any civilian returned there would solely on account of his presence there face a real risk of being subject to that threat. iii. Nor does the evidence establish that there is a real risk of serious harm under Article 15(c) for civilians who are Sunni or Shi’a or Kurds or have former Ba’ath Party connections: these characteristics do not in themselves amount to “enhanced risk categories” under Article 15(c)’s “sliding scale” (see [39] of Elgafaji). iv. Further evidence that has become available since the Tribunal heard MK (documents - relocation) Iraq CG [2012] UKUT 126 (IAC) does not warrant any departure from its conclusions on internal relocation alternatives in the KRG or in central or southern Iraq save that the evidence is now sufficient to establish the existence of a Central Archive maintained by the Iraqi authorities retaining civil identity records on microfiche, which provides a further way in which a person can identify themselves and obtain a copy of their CSID, whether from abroad or within Iraq. v. Regarding the issue of whether there would be a risk of treatment contrary to Article 3 ECHR arising from returns from the UK to Baghdad International Airport (BIAP): a. If a national of Iraq who has failed to establish that conditions inside Iraq are unsafe is compulsorily returned to Baghdad International Airport (BIAP) on either a current or expired Iraqi passport, there is no real risk of detention in the course of BIAP procedures (except possibly in respect of those who are the subject of a judicial order or arrest warrant). Nor is there such a risk if such a person chooses to make a voluntary return with a laissez passer document which can be issued by the Iraqi embassy in the UK . b. If, however, such a person is compulsorily returned to BIAP without either a current or expired Iraqi passport, he may be at risk of detention in the course of BIAP procedures and it cannot be excluded that the detention conditions might give rise to a real risk of treatment contrary to Article 3 ECHR. Such a risk is however, purely academic in the UK context because under the current UK returns policy there will be no compulsory return of persons lacking such documents.”

49. The decisions in HM2 and MK were both the subject of appeal to the Court of Appeal, being heard together and referenced as HF ( Iraq ) and others [2013] EWCA Civ 1276 . The appeals against the decisions in HM2 were dismissed and although the court allowed the appeal against the decision in MK it rejected the arguments directed at the country guidance set out therein. The Submissions – A Summary

50. The parties submitted detailed skeleton arguments, which we summarise below. Each supplemented their skeleton argument with oral submissions. Appellant’s skeleton argument

51. In his skeleton argument Mr Bazini observed the Respondent’s acceptance that the “contested areas of Iraq should be considered as meeting the circumstances of internal armed conflict” . As a consequence, he identified the core issue before the Tribunal to be that of internal relocation from the contested areas to either Baghdad or to the Iraqi Kurdish Region.

52. It is said that the situation in Baghdad represents an Article 15(c) risk for an ordinary civilian; there being an enhanced risk for: (i) persons without established connections to Baghdad ; (ii) Kurds; and, (iii) Christians. There is no established Kurdish neighbourhood in Baghdad .

53. It was asserted that a pivotal issue in the assessment of whether it is reasonable for an Iraqi national to relocate is whether such person has Iraqi identity documents; a CSID being the gateway to other important documentation such an Iraqi Nationality Certificate (“INC”) and a Public Distribution System (“PDS”) card. Without a CSID it is not possible for a person to access either services or a livelihood.

54. Reference is made to Dr Fatah’s report of 27 February 2015 to the steps required to obtain a new CSID by a person living outside of Iraq . It is said that this includes the need to provide the reference number of a lost CSID. An original CSID and INC are required to obtain an Iraqi passport. Applications to obtain a laissez-passer are, and have been since November 2014, assessed on a case-by-case basis.

55. A person cannot be expected to travel from Baghdad to their home area in order to obtain a CSID and other documents, if the home area is a contested area. Evidence set out in Dr Fatah’s addendum report of 1 May 2015 identifies the difficulties that will be met by a person seeking to obtain a replacement CSID and/or INC in Baghdad , if that person is not from Baghdad .

56. As to internal relocation to Baghdad , it was submitted that this governorate is statistically the most violent, there having been an increase in violence in the governorate in 2014 and early 2015. A person “will struggle” in Baghdad if not an Arabic speaker and if he/she has no social network to assist in accessing employment and housing.

57. It was further asserted that if a person is returned to Erbil in the IKR and that person is not from the IKR, then such person will not be allowed to exit the airport absent production of a CSID and INC. In any event the IKR authorities do not allow persons from the disputed territories to transfer a food ration card to the IKR. Without a CSID and INC a person will have difficulties in accessing services provided by the state and its partners, in addition it is IKR policy to maintain as much Kurdish presence as possible in the disputed territories so as to strengthen its claim to those areas. There are other ‘elements’ which also govern the authorities entry policy to the IKR: (i) “Event driven nature” – there being greater difficulties faced by single travellers because of the conflict and restrictions have also been put in place to stem the flow of IDPs, (ii) “Ethno-religious nature” – members of particular communities (such as Sunni Arabs) being tarred by association with ISIL and (iii) “Arbitrary nature” – policies applied at checkpoints are unpredictable. In any event, unemployment is high in IKR and IDPs struggle to find work, public sector salaries are not being paid and there has been a suspension of investment in economic projects.

58. As regards the Appellant, he will not be able to obtain identity documentation in Baghdad and, in any event, he cannot access food rations there because these can only be accessed in the home governorate or by returning to the home governorate and transferring access elsewhere. Appellant’s oral submissions

59. Mr Bazini observed that the Appellant has been found to come from Dubis in the Kirkuk Governorate, which is now one of the contested areas. He accepted that the Immigration Judge had found that there was no reliable evidence that the Appellant’s mother and siblings had left Iraq and, also, that the Appellant had a cousin based in Kirkuk . He submitted, however, that given the change of circumstances in Kirkuk since the date of the judge’s determination it is now reasonably likely that the Appellant’s family members are not in Iraq , are not contactable and would not be able to assist him.

60. Mr Bazini commended to us the inclusive approach to Article 15(c) adopted by the Tribunal in HM2 ; observing the Tribunal’s reference at [271] to the need for a qualitative as well as a quantitative approach when assessing the levels of indiscriminative violence in Iraq . He further alluded to the Tribunal’s identification that “one aspect of the inclusive approach is an appreciation that there are threats to the physical safety and integrity of civilians beyond those measured in the civilian casualty rate” at [114] – submitting that the situation in Iraq is now very different to that referred to in HM2 , with much of the violence aimed at civilians in order to bring about fear in the community.

61. It was further submitted that the appeal should not be determined on the basis that a person would be returning to Iraq with a CSID, or the necessary documentation to obtain one, because to do so would not be consistent with the proper application of Article 8 of the Qualification Directive.

62. He continued by submitting that Sunnis had been pushed to the west of Baghdad and are at greater risk. There is no established Kurdish community in Baghdad , making Kurds vulnerable. There had been a rapid increase in the level of indiscriminate violence in Iraq and the economic growth rate had dropped by 2.4 or 2.6% - the drop in oil prices being significant. As a consequence, IDPs are facing shortages of food, accommodation and medical care.

63. As to the issue of re-documentation, it was said that little was known about the Central Archive in Baghdad , including how long it would take to obtain documentation from there; if indeed it can be obtained at all. Reference was made to evidence provided by UNHCR-Iraq cited in Dr Fatah’s second report [paragraph 144 therein] – it being observed that as many as 45% of IDPs surveyed reported that at least one family member was missing their CSID, and that 48% were missing their INC. Only 10% of persons missing documents had tried to replace them in their area of displacement, with 35% successfully doing so. It was suggested by Mr Bazini that it should be inferred from this evidence that it is not easy to replace missing status documents.

64. The Tribunal’s attention was thereafter drawn to passages in Dr Fatah’s reports in furtherance of the submission that it is difficult for IDPs to obtain new status documents. In relation to the Central Archive, it was observed that there was no information regarding how the archive works, how many people work in the archive office, the output of the office, the success rate of those seeking documents from there and how the need to obtain information from the contested areas might hinder their work.

65. Assuming that the Appellant is able to obtain a CSID from Baghdad the process of doing so would, suggested Mr Bazini , take over a month. He submitted that in such circumstances the situation the Appellant would be living in prior to receipt of the CSID would amount to a breach of Article 3. There was very little evidence about what the Appellant would be entitled to under the Assisted Voluntary Return scheme. The leaflet produced by the Secretary of State indicated only that a person may be entitled to support and assistance and does not explain how the money had to be spent. It was also observed that Dr Fatah had confirmed that the Appellant would need $800 - $1,000 a month to stay in a hotel or to rent a room

66. Neither the UNHCR nor Amnesty International support the possibility of internal relocation in Iraq . The security situation in Baghdad is poor. The percentage of the population injured or killed in governorates other than Baghdad is generally lower than in Baghdad . Amnesty International are of the opinion that Baghdad is very dangerous. ISIL are only 70 km from Baghdad and the population are living in fear. Abductions occur throughout the city. Kurds receive threats from Shi’a militias.

67. Turning to the IKR, the Tribunal’s attention was drawn to evidence provided by Dr Fatah to the effect that food prices and the cost of living had increased in the IKR, civil servants salaries had not been paid for a month there and there are 3 million IDPs in temporary shelters. The aid agencies only have limited funds. The conditions for an IDP in the IKR are unduly harsh. Respondent’s skeleton argument

68. The Respondent accepts that the overall security situation in Iraq has deteriorated since HM2 . Mr Blundell summarised the Respondent’s position on the issue of whether an Article 15(c) risk exists in Iraq in the following terms (i) There currently exists a state of internal armed conflict between the GoI and ISIL, with violence principally in the northern, central and western areas of the country; (ii) In parts of Anbar, Diyala, Kirkuk (Tameen), Ninewah and Salah Al-din governorates, which are occupied by ISIL or where there is open conflict between GoI and ISIL (the contested areas), the Respondent accepts that Article 15(c) would apply to a civilian with no distinguishing characteristics (“an ordinary civilian”) simply by virtue of his/her presence there; (iii) In Babil governorate, the security situation has deteriorated but not to such an extent that an ordinary civilian would face an Article 15(c) risk there; (iv) In the governorates of Basra, Kerbala, Najaf, Muthana, Thi-Qar, Missan, Qadissiya and Wassit (“the southern governorates”), the security situation has remained relatively stable and would not be sufficient to demonstrate an Article 15(c) risk for an ordinary civilian: (v) In Baghdad city and Baghdad governorate the security situation has deteriorated but not to such an extent that an ordinary civilian, merely on account of his presence there, would face an Article 15(c) risk; and, (vi) The situation in the IKR remains stable and does not engage Article 15(c). (vii) Status as a Sunni, Shia or Kurd is not, of itself, sufficient to give rise to an Article 15(c) risk in any of the governorates in which there is otherwise no Article 15(c) risk for ordinary civilians.

69. As regards internal relocation to Baghdad for those who can demonstrate an Article 15(c) risk in their home area, the Respondent submits as follows in relation to the security situation in Baghdad : (i) There is a 0.05% civilian death rate, 0.12% civilian injury rate and, therefore, a 0.17% civilian casualty rate in Baghdad . These figures do not indicate a serious risk for an ordinary civilian; (ii) There has been a significant net migration of 260,000 persons into Baghdad by displaced persons – the evidence demonstrating that Sunnis in particular are moving to the capital. This is a strong indication that, from the perspective of Iraqis, the security situation in Baghdad is not seen as posing a risk of serious harm; (iii) The night time curfew in Baghdad has recently been lifted, thus supporting the fact that there is no Article 15(c) risk there; (iv) The evidence confirms that no particular groups are at risk in Baghdad and there are no particular hotspots; (v) To the extent that there are incidents of violence in Baghdad governorate, the situation in Baghdad city is more stable than in the surrounding Baghdad Belts. The attacks in Baghdad city are of a more limited nature than those in the suburbs. (vi) The situation in Baghdad Belts does not engage Article 15(c), although it is accepted that it does carry a higher risk than the city itself.

70. At paragraph 50 of the skeleton argument, the Respondent reproduces the following passage from her December 2014 Guidance Note: “ A person returned to Iraq who was unable to replace their Civil Status ID Card or Nationality Certificate would be likely to face significant difficulties in accessing services and a livelihood and would face destitution which is likely to reach the Article 3 threshold.”

71. The Respondent further identifies that returns to Baghdad will only take place if a person has either a current passport, expired passport or a laissez-passer, which will involve pre-clearance with the Iraqi authorities and hence confirmation of Iraqi identity. The Tribunal’s attention was thereafter drawn to the December 2014 Country Information Guidance Note on Iraq .

72. On the issue of the existence of a Central Archive in Baghdad , the Respondent agrees that Dr Fatah’s third report provides a fair summary of the position. It is possible in certain circumstances to obtain replacement civil documentation in Baghdad . There are two alternative offices for civil status affairs - in Baghdad and Najaf – where IDPs from Mosul , Anbar and Salahaddin can obtain replacement documentation. An individual appellant would have to demonstrate why they did not have their documents, how they were able to leave Iraq without them and why they had been unable to reacquire these documents from the UK . It is asserted, however, that consideration of the position of ‘undocumented returns’ is academic because a person will be returned to Baghdad with a passport, expired passport, or laissez-passer – the latter requiring a person’s identity to be proven to the Iraqi consulate before it is issued.

73. The Respondent’s position on internal relocation to the IKR is as set out at paragraphs 1.3.58 to 1.3.61 of the December CIG i.e. that it is not unreasonable or unduly harsh for persons originating from outside the IKR to internally relocate there. Persons of Kurdish ethnicity do not require a sponsor to enter the IKR and would not be perceived as a security risk. It is accepted that where a person has no established links to the IKR and is of Arab or Turkmen ethnic origin, internal relocation will be difficult even if identity documents are in order. A sponsor may be required and entry may be refused due to security concerns.

74. In relation to the Appellant, the Respondent accepted that there would be an Article 15(c) risk to him in the Kirkuk region but submitted that it would not be unreasonable for him to relocate to either Baghdad , the southern governorates or the IKR. Respondent’s oral submissions

75. The concession made in the Respondent’s skeleton argument as to the Article 15(c) risk to ordinary persons in the contested areas was maintained.

76. Mr Blundell submitted that when considering whether an Article 15(c) risk arose in areas other than the ‘contested areas’, the Tribunal’s focus should be on the intensity of the violence. Whilst accepting that the Tribunal’s approach must be holistic/inclusive he asserted that the data relating to the numbers of civilians injured or killed should serve as a “gateway” to such an analysis. Reliance was placed on the Court of Appeal’s decision in QD (Iraq) v Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2009] EWCA Civ 620 at [21] in this regard.

77. The Respondent accepted that the security situation in Iraq has deteriorated recently, but observed that the current level of violence is nowhere near the peak in 2006-7, nor is it anything like the level of violence that exists in Syria . It was further noted that the curfew in Baghdad had recently been lifted and that Dr Fatah had accepted that there had not been any wave of violence as a consequence. There is not an Article 15(c) risk within Baghdad city or the Baghdad Belts. Dr Fatah agreed that ISIL were not in control of Baghdad and that, although fighting was more pronounced in the Baghdad Belts, it could not operate there or exert influence there because there was so much military opposition to it.

78. Mr Blundell thereafter accepted that there were no specific Kurdish areas in Baghdad but, nevertheless, asserted that it would still be reasonable to expect a person of Kurdish origin to relocate there.

79. As to documentation, it was confirmed that the Iraqi authorities would only grant entry to a person returned to Baghdad if that person is in possession of a laissez-passer, a current Iraqi passport or an expired Iraqi passport. Dr Fatah accepted that if a person were returned with a passport or expired passport these could be used to obtain a CSID. If a person were to be returned on a laissez-passer that person would either have a CSID or have the sort of documents required to get one, because it would have been necessary for such person to produce these documents to obtain the laissez-passer. A CSID can be obtained from the UK . It was said that in such circumstances the Tribunal should consider the appeal on the hypothetical basis that the Appellant will have a CSID upon return. In any event, there is a Central Archive in Baghdad that can issue documentation.

80. Mr Blundell submitted that the evidence demonstrates that a majority of IDPs in Baghdad live with family members there. Returnees receive assistance under the Voluntary Assisted Return and Reintegration Programme (‘VARRP’). A ‘Start Card’ containing the first £500 [of a possible maximum of £1,500], is provided at the airport as the returnee leaves. This can be used to withdraw the £500 from a bank machine upon return. The rest of the funds can usually be accessed through partner organisations in the country of return, who will use it to give the returnee support and assistance after he or she returns. It was submitted that the Appellant could use this money to obtain accommodation on his return; if need be, in any period prior to obtaining a CSID and other papers, the Appellant could rely on Iraqi and international assistance. Life goes on in Baghdad and it is not unreasonable for a person to internally relocate there.

81. Returns from the UK to the IKR take place on EU letters. A person not originally from the IKR would not be returned there. Returnees are pre-cleared with the IKR authorities. Identity is assured in advance.

82. As to the instant appellant, he would be returned to Baghdad . He could fly from Baghdad to Erbil and would not require a sponsor to enter given his Kurdish ethnicity. He has family in Iraq who could assist in the re-documentation process. It should not be assumed that they have moved on or that they cannot be contacted.