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Home Office wrong to apply its own Iraq asylum policy instead of country guidance case

Home Office wrong to apply its own Iraq asylum policy instead of country guidance case

SS v Secretary of State for the Home Department [2019] EWHC 1402 (Admin) is about when the Home Office can legitimately apply its own policy instead of a country guidance decision from the Upper Tribunal. The High Court has ruled that it was irrational do so when the Home Office policy was formed on the basis of limited assurances provided by the Iraq government. The decision is a welcome example of the High Court carefully reviewing factual claims made in Home Office country information.

The background is that Iraqis must have a Civil Status Identity Document (CSID) in order to get work, housing and other basic amenities. The Home Office accepts that removal to Iraq will breach Article 3 of the European Convention on Human Rights where the person cannot obtain a CSID within a reasonable time. In this case the claimant did not have other identity documents to help him obtain a CSID and did not know the reference number needed to find his details in the Iraqi government’s archives. Applying the findings made in AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC), he would not be able to obtain a CSID within a reasonable time.

However, the Home Office refused to acknowledge his further submissions as a fresh claim by relying on their own Country Policy and Information Note, which implies that it is possible to search the Iraq government’s digital archives to find information about an individual. The High Court reviewed the underlying correspondence from the Iraqi government (and unusually included pictures of the letters in its judgment) and concluded that it did not establish that CSIDs are easily obtainable for individuals returned without other documentation:

It seems to me therefore that the correspondence relied on and included in the CPIN, taken at its face value establishes 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 CG cases, or whether it is can be accessed by a returnee to establish identity sufficient to acquire a CSID.

For that reason, Her Honour Judge Coe QC concluded that the decision to refuse the fresh claim was irrational.

Interestingly, the judge also commented that the Home Office should have ultimately reached the opposite conclusion, rather than simply requiring the Home Office to consider the question again, which is the normal course of action if a decision is found to be irrational. That is significant in the context of this case because the claimant was removed to Iraq before the claim was filed and will presumably wish to return to the UK as soon as possible.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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