HF (Iraq) & Ors v Secretary of State for the Home Department

UNHCR eligibility guidelines ordinarily command considerable respect because of their intrinsic quality, but they are not presumptively binding. A tribunal must evaluate them with all the other evidence and decide the weight each source deserves.

Country guidance must ordinarily be followed unless good reasons or fresh evidence justify departure. Internal relocation to the Kurdistan Region of Iraq was generally viable because any sponsorship requirement was readily satisfied and rarely enforced by removal.

A tribunal need not assess the consequences of a hypothetical undocumented return which is not practically possible. Humanitarian protection is not available where any risk would arise solely from an applicant’s unlawful refusal to obtain documentation which would make return safe.

Four Iraqi nationals appealed from two country-guidance decisions of the Upper Tribunal: HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC) and MK (documents-relocation) Iraq CG [2012] UKUT 00126 (IAC).

The first decision held that indiscriminate violence in five central Iraqi governorates did not generally attain the level required by article 15(c) of Council Directive 2004/83/EC. It also addressed return through Baghdad International Airport and internal relocation. The second held that an ethnic Kurd could generally relocate to the Kurdistan Region of Iraq.

The appeals questioned the weight due to UNHCR eligibility guidelines, the practical availability of relocation, and whether possible detention of undocumented returnees required an article 3 determination. MK also challenged the handling of her individual claim that her family had been specifically targeted.

1. The appeals concerning the country guidance were dismissed. UNHCR eligibility guidelines are important evidence and will ordinarily command considerable respect. Their weight derives from their intrinsic quality, including the depth and rigour of the analysis, rather than a presumptively binding status attached to their author. The fact-finding tribunal must assess the whole body of evidence and assign weight to each source. No rule of domestic or international law required departure from UNHCR guidance only for cogent and identified reasons.

2. The Upper Tribunal was entitled to maintain the guidance that internal relocation to the Kurdistan Region of Iraq was generally possible. The evidence distinguished entry from subsequent residence, although the Upper Tribunal’s summaries were not entirely consistent. Any formal sponsorship requirement was readily satisfied in practice, and failure to obtain a sponsor very rarely led to removal. The evidence also supported the conclusion that living conditions, though difficult, were viable. Individual difficulty in accessing food through a PDS card remained relevant to whether relocation would be unreasonable.

3. The Upper Tribunal did not have to decide whether detention conditions would violate article 3 of the European Convention on Human Rights for a person forcibly returned without documentation. Iraq would not accept such a person, so the lack of documents constituted a practical impediment to return rather than an executive policy postponing an otherwise feasible removal. The tribunal must assess risk where return is feasible, but it need not determine what would happen following a return which cannot occur. JI v Secretary of State for the Home Department [2013] EWCA Civ 279 was distinguishable.

4. Further, a tribunal may ordinarily assume that an applicant will comply with the criminal law by co-operating to obtain travel documents. If any risk on return arose solely from an unlawful refusal to obtain documentation which would make return safe, granting humanitarian protection would subvert the purpose of asylum law. Those observations addressed a contingency which had not yet arisen.

5. MK’s individual appeal was allowed and remitted. The Upper Tribunal had misunderstood the earlier error-of-law ruling and had not adequately reconsidered whether the three attacks on her family formed a targeted campaign. Its bare conclusion that they were random lacked sufficient reasons. That error was material because a risk of targeting during necessary visits to Kirkuk could make relocation unreasonable. The findings that the three incidents occurred as alleged were to stand. Fairness also required an opportunity to answer any proposed rejection of previously accepted evidence.

1. Court of Appeal (Civil Division): Dismissed the challenges to the country guidance in HM2 and MK. Allowed MK’s individual appeal and remitted it for reconsideration, preserving the finding that the three incidents occurred as alleged.
2. Upper Tribunal (Asylum and Immigration Chamber): In HM and others (Article 15(c)) Iraq CG [2012] UKUT 00409 (IAC), rejected the humanitarian-protection claims and maintained guidance on relocation and return through Baghdad Airport. In MK (documents-relocation) Iraq CG [2012] UKUT 00126 (IAC), upheld the rejection of MK’s claim and issued guidance permitting relocation to the Kurdistan Region of Iraq.
3. First-tier immigration proceedings: The appellants’ protection claims were rejected. MK’s account of the incidents was substantially accepted, but the incidents were treated as unconnected random violence rather than targeted persecution.