AA v The Secretary of State for the Home Department

Article 15(c) requires an inclusive assessment of indiscriminate violence. The assessment is both qualitative and quantitative. It asks whether violence creates a general risk for civilians and, if not, whether an applicant’s individual characteristics create a real risk on the sliding scale.

At the date of decision, ordinary civilians faced a general Article 15(c) risk in Iraq’s contested areas and specified border parts of the Baghdad Belts, but not in Baghdad City, the Iraqi Kurdish Region or the southern governorates.

Documentation becomes material only if return is feasible. A person without a CSID who cannot obtain one reasonably soon, and who lacks support, may face serious harm through destitution. Internal relocation to Baghdad is generally reasonable, subject to individual circumstances.

The appellant was an Iraqi Kurd from Kirkuk. His earlier asylum, humanitarian protection and human-rights appeal had been dismissed. Following proceedings in the Court of Appeal, the appeal was remitted to the Upper Tribunal for reconsideration limited to Article 15(c) of the Qualification Directive.

The Tribunal heard extensive country evidence concerning armed conflict, return documentation, access to Civil Status Identity Documents (CSIDs), and internal relocation to Baghdad and the Iraqi Kurdish Region.

The central issues were whether the appellant faced Article 15(c) serious harm in Iraq, whether return was feasible without relevant Iraqi documentation, and whether a safe and reasonable internal relocation alternative existed.

1. The appeal was remitted to the First-tier Tribunal. The appellant came from Kirkuk, a contested area in which an ordinary civilian faced a general Article 15(c) risk. However, further findings were needed concerning his documentation, family support, ability to speak Arabic, and any longer-term relocation alternative.

2. The Tribunal held that Article 15(c) requires an inclusive, qualitative and quantitative assessment. The contested areas of Anbar, Diyala, Kirkuk, Ninewah and Salah Al-din, and border parts of the Baghdad Belts, met the general-risk threshold. Baghdad City, the remainder of Iraq outside those areas, the southern governorates and the Iraqi Kurdish Region did not. Individual characteristics must nevertheless be assessed under the sliding-scale approach.

3. Following HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an alleged documentation risk cannot found an international-protection claim where return is not currently feasible. A tribunal must not hypothesise conditions on return caused by the absence of documents where Iraq will not admit the person without them.

4. Where return is feasible, the tribunal must determine whether the returnee has, or can obtain promptly, a CSID. Without a CSID, a person lacking family or other support is generally likely to face destitution amounting to serious harm after return assistance is exhausted. The Secretary of State should identify the documentation that enabled the Iraqi authorities to issue, or propose to issue, a passport or laissez passer.

5. Relocation to Baghdad is generally neither unreasonable nor unduly harsh for a person from a contested area. Relevant factors include documentation, Arabic language ability, support and accommodation, sex, minority status, sponsorship and available assistance. Relocation to the Iraqi Kurdish Region is fact sensitive for Kurds and generally unsuitable for non-Kurds at risk in their home area.

• Upper Tribunal (Immigration and Asylum Chamber): The appeal was reconsidered on remission from the Court of Appeal, limited to Article 15(c), and remitted to the First-tier Tribunal for further fact-finding.
• Court of Appeal: The appeal was remitted for reconsideration following HM (Iraq) v Secretary of State for the Home Department [2011] EWCA Civ 1536.
• Upper Tribunal: Deputy Upper Tribunal Judge Wynne set aside the earlier determination on 23 June 2010. A re-made decision dated 1 April 2011 dismissed the appellant’s appeal on all grounds.
• Asylum and Immigration Tribunal: Immigration Judge Batiste dismissed the appellant’s appeal in a determination dated 7 September 2009.