QD (Iraq) v Secretary of State for the Home Department

Council Directive 2004/83/EC, article 15(c), has an autonomous meaning. It must not be restricted by concepts or purposes drawn from international humanitarian law. The expressions “real risk” in article 2(e) and “threat” in article 15(c) identify a single contingency.

Subsidiary protection is available where indiscriminate violence in the relevant area reaches such intensity that substantial grounds show that a civilian would, solely by being present, face a real risk of a serious threat to life or person. The applicant need not show personal targeting. “Armed conflict” is broad enough to include violence caused by one or more armed factions or by the state. The decisive issue is the intensity of indiscriminate violence in the proposed destination.

QD and AH were Iraqi asylum seekers whose appeals had been dismissed by the Asylum and Immigration Tribunal. QD feared reprisals in Samarra because of his former Ba’ath Party membership. AH, from Baquba, had moved with his family to Kifri to escape local violence.

In each case the Tribunal applied KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023 and found that the level of violence did not create a sufficient individual risk. The appeals raised the proper construction of article 15(c) of the Qualification Directive and whether the Tribunal’s legal error could affect the outcomes.

Decision

1. The court allowed both appeals and remitted them to differently constituted tribunals. The evidence required assessment under a different legal framework. The Court of Appeal could not properly determine the necessary country evidence as a primary fact-finding body.

2. The approach in KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023 was legally wrong. Article 15(c) of Council Directive 2004/83/EC does not incorporate a fundamental gloss from international humanitarian law. Its purpose is subsidiary protection for civilians at risk from serious indiscriminate violence, not protection only from war crimes or other breaches of international humanitarian law.

3. Following Elgafaji v Staatssecretaris van Justitie C-465/07, article 15(c) has a field of application distinct from article 3 of the European Convention. An individual need not prove that he is specifically targeted. The question is whether the degree of indiscriminate violence is so high that a civilian would, merely by being in the relevant country or region, face a real risk of the serious threat described by article 15(c). Personal circumstances may lower the level of violence required.

4. The “risk” in article 2(e) and the “threat” in article 15(c) are one, rather than cumulative, contingency. “Serious” qualifies the threat. A consistent pattern of mistreatment, appropriate in a different context, is not the measure of random injury or death caused by indiscriminate violence. “Armed conflict” has an autonomous and broad meaning. It can include violence caused by a state or a single armed faction, provided that the requisite intensity is reached. A civilian is a genuine non-combatant.

The remitted tribunal had to decide whether violence in each appellant’s home area, or any proper internal-relocation destination, was sufficiently intense that presence alone created the required real risk.

• Court of Appeal (Civil Division): Allowed both appeals and remitted them to differently constituted Asylum and Immigration Tribunals.

• Asylum and Immigration Tribunal: Dismissed QD’s appeal under case number AA/09525/2007 and AH’s appeal under case number AA/03993/2007, applying KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023.