HM & Ors v The Secretary of State for the Home Department

For protection under Article 15(c), the assessment of indiscriminate violence in an armed conflict is generally inclusive. It must consider harm to civilians from all relevant violence, including consequential criminality and significant injury or trauma, provided that there is a sufficient causal nexus with the conflict.

The question is whether the intensity of violence creates a real risk of serious harm for a civilian solely because of presence in the relevant area. The assessment is both quantitative and qualitative. It cannot rest on casualty figures alone. On the evidence, Iraq's violence did not reach that threshold for ordinary civilians, although individual risk factors may lower the violence threshold and conditions may change.

Four Iraqi men appealed after Immigration Judges had rejected their protection claims. Their accounts of individual persecution had been disbelieved or their factual findings preserved. The remaining common issue was whether, as civilians from Kirkuk, Baqubah or Baghdad, they qualified for humanitarian protection under Article 15(c) of Council Directive 2004/83/EC.

The Tribunal set aside the original decisions to the extent necessary because earlier consideration had relied on country guidance subsequently found legally erroneous. It heard the joined appeals as a country-guidance case. The appellants then sought to withdraw, but the Tribunal refused because of the substantial public interest in resolving the guidance issue. The central question was whether the level of conflict-related indiscriminate violence in Iraq exposed ordinary civilian returnees to a real risk of serious harm.

1. The appeals were dismissed. Although each Immigration Judge had materially erred in law in the treatment of Article 15(c), the Tribunal remade the decisions and rejected each appellant's humanitarian-protection claim.

2. Following Elgafaji, Case C-465/07, and QD (Iraq) and another v Secretary of State for the Home Department, [2009] EWCA Civ 620, Article 15(c) requires an inclusive assessment of conflict-related violence. It is not helpful to subdivide civilian deaths into targeted and incidental killings, or to subtract violence between combatants mechanically. The necessary limitation is a sufficient causal nexus between the violence and the armed conflict.

3. The inquiry concerns serious threats to a civilian's life or person. It extends beyond fatalities to significant physical injury, serious mental trauma and threats to bodily integrity. The Tribunal formulated a structured inquiry addressing armed conflict, its harmful effects on civilians, the risk to any civilian, any additional personal risk characteristics, internal protection, and the safety of the proposed route of return.

4. On the current evidence, violence in Iraq was unacceptably high but had fallen substantially from the levels in 2006 and 2007. It was not at such a level that an ordinary civilian returning to Iraq, Kirkuk, Diyala or Baghdad would solely by presence face a real risk of Article 15(c) serious harm. The assessment remains fact-sensitive and must consider a wide range of qualitative and quantitative indicators. People with additional characteristics may qualify on the sliding scale identified in Elgafaji.

5. In any event, if violence in a home area did meet the threshold, internal relocation was likely to provide safety without undue harshness. The KRG was a viable alternative for these young, able-bodied men. The evidence concerning the June 2010 charter returns did not establish that the United Kingdom return process involved serious harm, although improvement of the procedures was desirable.

• Upper Tribunal (Immigration and Asylum Chamber): The joined country-guidance appeals were determined afresh on Article 15(c). The Tribunal dismissed all four appeals.

• Immigration Judges / earlier reconsideration proceedings: The appellants' protection appeals had been dismissed. In the cases of RM, HM, ASA and AA, the Article 15(c) issue was later reopened or set aside for reconsideration because the previous approach had relied on KH (Article 15(c) Qualification Directive) Iraq CG, [2008] UKAIT 00023, whose construction of Article 15(c) had been disapproved.