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New country guidance on Iraq
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New country guidance on Iraq

On 20 December 2019, the Upper Tribunal issued a new country guidance case on Iraq. This new case, SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC), replaces all existing country guidance, including AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC); BA (Returns to Baghdad) Iraq CG [2017] UKUT 18 (IAC); and AAH (Iraqi Kurds – internal relocation) Iraq CG [2018] UKUT 212 (IAC).

The Upper Tribunal decided to revisit the previous country guidance following the military defeat of the Islamic State of Iraq and the Levant (ISIL). Accordingly, the intensity of the conflict in most parts of Iraq is no longer, in and of itself, severe enough to warrant a grant of humanitarian protection, with the exception of the small area of Baiji, in Salah al-Din. Similarly, living conditions in Iraq are unlikely to give rise to a breach of Article 3, and therefore, again, do not justify the grant of humanitarian protection on that basis alone.

That said, as always, one must carry out an assessment of individual circumstances, looking in particular at the area the person is proposed to be returned to, and the particular characteristics of that person. Anyone dealing with an Iraqi case should read the judgment in full but relevant matters to take into account will include:

  • The extent of ongoing ISIL activity in the area the individual is proposed to be returned to
  • Whether the individual has an actual or perceived association with ISIL
  • Whether the individual has a personal association with the government or security apparatus
  • The individual’s political opinion
  • The individual’s membership of a particular national, ethnic or religious group, and whether that group is in the minority in the area of return
  • The individual’s sexual and gender identity
  • Whether the individual is associated with Western organisations or security forces
  • Whether the individual is a woman or a child, and the level of family support they may have
  • Whether the individual has any disabilities

Similarly, the feasibility and reasonableness of internal relocation will depend on a number of factors. These include the ethnic and political composition of the area of proposed relocation; the person’s own ethnicity, gender and marital status; the person’s support system and connections in that area; and the area’s sponsorship and residency requirements.

Lastly, it remains crucial to check whether an individual will be able to obtain a Civil Status Identity Documentation (CSID) or an Iraqi National Identity Card (INID). This is because:

 As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR.

All in all, this guidance makes it harder for Iraqi nationals to be granted humanitarian protection in the UK. That said, legal representatives should be alert to the following:

  1. Do the person’s specific circumstances mean that they would be at risk by returning to Iraq?
  2. Will the person be able to obtain a CSID or INID?
  3. Could the person apply for a different status, for example relying on paragraph 276 ADE of the Immigration Rules and arguing that there would be significant obstacles to their re-integration in Iraq?

I also understand that the solicitors in this case are challenging the decision.

Last but not least, this guidance may not survive very long, depending on the outcome of the escalation of hostilities between the US and Iran which could have repercussions for Iraq.

Headnote in full

A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE

1. There continues to be an internal armed conflict in certain parts of Iraq, involving government forces, various militia and the remnants of ISIL.  Following the military defeat of ISIL at the end of 2017 and the resulting reduction in levels of direct and indirect violence, however, the intensity of that conflict is not such that, as a general matter, there are substantial grounds for believing that any civilian returned to Iraq, solely on account of his presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) QD.

2. The only exception to the general conclusion above is in respect of the small mountainous area north of Baiji in Salah al-Din, which is marked on the map at Annex D.  ISIL continues to exercise doctrinal control over that area and the risk of indiscriminate violence there is such as to engage Article 15(c) as a general matter.

3. The situation in the Formerly Contested Areas (the governorates of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-Din) is complex, encompassing ethnic, political and humanitarian issues which differ by region.  Whether the return of an individual to such an area would be contrary to Article 15(c) requires a fact-sensitive, “sliding scale” assessment to which the following matters are relevant. 

4. Those with an actual or perceived association with ISIL are likely to be at enhanced risk throughout Iraq.  In those areas in which ISIL retains an active presence, those who have a current personal association with local or national government or the security apparatus are likely to be at enhanced risk. 

5. The impact of any of the personal characteristics listed immediately below must be carefully assessed against the situation in the area to which return is contemplated, with particular reference to the extent of ongoing ISIL activity and the behaviour of the security actors in control of that area.  Within the framework of such an analysis, the other personal characteristics which are capable of being relevant, individually and cumulatively, to the sliding scale analysis required by Article 15(c) are as follows:

· Opposition to or criticism of the GOI, the KRG or local security actors;

· Membership of a national, ethnic or religious group which is either in the minority in the area in question, or not in de facto control of that area;

· LGBTI individuals, those not conforming to Islamic mores and wealthy or Westernised individuals;

· Humanitarian or medical staff and those associated with Western organisations or security forces;

· Women and children without genuine family support; and

· Individuals with disabilities.

6. The living conditions in Iraq as a whole, including the Formerly Contested Areas, are unlikely to give rise to a breach of Article 3 ECHR or (therefore) to necessitate subsidiary protection under Article 15(b) QD.  Where it is asserted that return to a particular part of Iraq would give rise to such a breach, however, it is to be recalled that the minimum level of severity required is relative, according to the personal circumstances of the individual concerned.  Any such circumstances require individualised assessment in the context of the conditions of the area in question. 

B. DOCUMENTATION AND FEASIBILITY OF RETURN (EXCLUDING IKR)

7. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a Laissez Passer.

8. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.

9. In the light of the Court of Appeal’s judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of a current or expired Iraqi passport or a Laissez passer, if the Tribunal finds that P’s return is not currently feasible on account of a lack of any of those documents.

10. Where P is returned to Iraq on a Laissez Passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport.

C. CIVIL STATUS IDENTITY DOCUMENTATION

11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID.  As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR.   Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.  A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel. 

12. A Laissez Passer will be of no assistance in the absence of a CSID or an INID; it is confiscated upon arrival and is not, in any event, a recognised identity document.  There is insufficient evidence to show that returnees are issued with a ‘certification letter’ at Baghdad Airport, or to show that any such document would be recognised internally as acceptable proof of identity.

13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities.  Whether an individual will be able to obtain a replacement CSID whilst in the UK depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process.  Given the importance of that information, most Iraqi citizens will recall it. That information may also be obtained from family members, although it is necessary to consider whether such relatives are on the father’s or the mother’s side because the registration system is patrilineal. 

14. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document.  All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.

15. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time.  Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.

16. The likelihood of obtaining a replacement identity document by the use of a proxy, whether from the UK or on return to Iraq, has reduced due to the introduction of the INID system.  In order to obtain an INID, an individual must attend their local CSA office in person to enrol their biometrics, including fingerprints and iris scans.  The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy.   The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.

D. INTERNAL RELOCATION WITHIN GOI-CONTROLLED IRAQ

17. Where internal relocation is raised in the Iraqi context, it is necessary to consider not only the safety and reasonableness of relocation but also the feasibility of that course, in light of sponsorship and residency requirements in operation in various parts of the country.  Individuals who seek to relocate within the country may not be admitted to a potential safe haven or may not be permitted to remain there.

18. Relocation within the Formerly Contested Areas.  With the exception of the small area identified in section A, the general conditions within the Formerly Contested Areas do not engage Article 15 QD(b) or (c) or Article 3 ECHR and relocation within the Formerly Contested Areas may obviate a risk which exists in an individual’s home area.  Where relocation within the Formerly Contested Areas is under contemplation, however, the ethnic and political composition of the home area and the place of relocation will be particularly relevant.  In particular, an individual who lived in a former ISIL stronghold for some time may fall under suspicion in a place of relocation.  Tribal and ethnic differences may preclude such relocation, given the significant presence and control of largely Shia militia in these areas.  Even where it is safe for an individual to relocate within the Formerly Contested Areas, however, it is unlikely to be either feasible or reasonable without a prior connection to, and a support structure within, the area in question.

19. Relocation to Baghdad.  Baghdad is generally safe for ordinary civilians but whether it is safe for a particular returnee is a question of fact in the individual case.  There are no on-entry sponsorship requirements for Baghdad but there are sponsorship requirements for residency.  A documented individual of working age is likely to be able to satisfy those requirements.  Relocation to Baghdad is likely to be reasonable for Arab Shia and Sunni single, able-bodied men and married couples of working age without children and without specific vulnerabilities.  Other individuals are likely to require external support, ie a support network of members of his or her family, extended family or tribe, who are willing and able to provide genuine support.  Whether such a support network is available is to be considered with reference to the collectivist nature of Iraqi society, as considered in AAH (Iraq). 

E. IRAQI KURDISH REGION

20. There are regular direct flights from the UK to the Iraqi Kurdish Region and returns might be to Baghdad or to that region.  It is for the respondent to state whether she intends to remove to Baghdad, Erbil or Sulaymaniyah.

Kurds

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

22. P is unable to board a domestic flight between Baghdad and the IKR without either a CSID, an INID or a valid passport.  If P has one of those documents, the journey from Baghdad to the IKR by land is affordable and practical and can be made without a real risk of P suffering persecution, serious harm, or Article 3 ill treatment nor would any difficulties on the journey make relocation unduly harsh.

23. P will face considerable difficulty in making the journey between Baghdad and the IKR by land without a CSID or an INID. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport.  If P has neither a CSID nor an INID 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.

24. 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 are no sponsorship requirements for entry or residence in any of the three IKR Governorates for Kurds.

25. 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.

26. 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.

27. For Kurds without the assistance of family in the IKR the accommodation options are limited:

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

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

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

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

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

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

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

(iii) P cannot work without a CSID or INID;

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

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

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

Non-Kurdish Returnees

29.  The ability of non-Kurdish returnees to relocate to the IKR is to be distinguished.  There are no sponsorship requirements for entry or residence in Erbil and Sulaymaniyah, although single Arab and Turkmen citizens require regular employment in order to secure residency.  Arabs from former conflict areas and Turkmen from Tal Afar are subject to sponsorship requirements to enter or reside in Dohuk. Although Erbil and Sulaymaniyah are accessible for such individuals, particular care must be taken in evaluating whether internal relocation to the IKR for a non-Kurd would be reasonable.  Given the economic and humanitarian conditions in the IKR at present, an Arab with no viable support network in the IKR is likely to experience unduly harsh conditions upon relocation there. 

F. EXISTING COUNTRY GUIDANCE DECISIONS

30. This decision replaces all existing country guidance on Iraq. 

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London. She tweets: @NathGbikpi.

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