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

For protection claims, the effect of a documentation problem depends on whether it merely prevents return or also creates an independent risk on return. HF (Iraq) [2013] EWCA Civ 1276 established that a tribunal need not hypothesise risk where return is impossible, but must assess risk where return is feasible. It was arguable that this did not resolve a case in which the absence of a Civil Status Identity Document was both an impediment to return and a potential source of destitution and Article 3 ill-treatment. Permission was granted on that ground. Challenges to findings about Article 15(c) violence, Kurdish risk and employment opportunities were factual or evidential and disclosed no arguable error.

AA, an Iraqi national, claimed asylum after entering the United Kingdom. His claim was refused and his appeal was ultimately reheard by the Upper Tribunal. Following a concession by the Secretary of State, the case was remitted for country guidance on Article 15(c) of the Qualification Directive and the removal of Iraqi nationals.

The Upper Tribunal promulgated its determination on 30 October 2015, [2015] UKUT 544 (IAC). It gave guidance on documentation, found that AA’s return was not currently feasible, and remitted the case for further fact-finding. AA sought permission to appeal on four grounds, principally concerning whether a risk arising from the absence of a Civil Status Identity Document had to be assessed before return became feasible.

Disposition. The application for permission to appeal was granted on ground 1 and refused on grounds 2–4. Counsel were invited to formulate ground 1 clearly for attachment to the court’s order.

1. Documentation and return. The court identified the ratio of HF (Iraq) [2013] EWCA Civ 1276 as twofold. A tribunal need not determine what would happen on return where return is simply impossible. If return is feasible, it must determine the risk on return. In the present case, however, the absence of a Civil Status Identity Document could both impede the acquisition of travel documents and create an independent risk of destitution and Article 3 ill-treatment. It was therefore arguable, with a realistic prospect of success, that HF (Iraq) did not necessarily determine whether that risk had to be assessed before return was feasible.
2. Safety on return. The court considered HH (Somalia) v SSHD [2010] EWCA Civ 426, where the tribunal was required to consider the safety of an identified route and method of return. The linked discussion also contained an expressly obiter and provisional view that safety on return generally formed part of the entitlement decision, while technical obstacles could be deferred. Although the substantive issue remained unresolved, HH (Somalia) made the proposed ground sufficiently important and arguable to merit a second appeal.
3. Article 15(c) and factual findings. Whether the level of indiscriminate violence in Baghdad engaged Article 15(c), whether Kurds faced an enhanced risk, and what weight should be given to displacement, casualty, fear and daily-life evidence were principally factual matters for the Upper Tribunal. No misdirection, irrationality or material failure to address the evidence was shown. Permission was accordingly refused on grounds 2 and 3.
4. Employment inference. The Upper Tribunal was entitled to infer from the significant proportion of internally displaced persons living in rented accommodation that employment opportunities existed. That was not impermissible speculation on the evidence. Permission was refused on ground 4.

1. Court of Appeal (Civil Division): granted permission to appeal on ground 1 and refused permission on grounds 2–4.
2. Upper Tribunal (Immigration and Asylum Chamber): promulgated country guidance on 30 October 2015, [2015] UKUT 544 (IAC), found AA’s return was not currently feasible and remitted the case for further fact-finding.
3. Earlier proceedings: AA’s initial asylum appeal was dismissed; the matter was subsequently reconsidered and reheard before the Upper Tribunal.