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

For an appeal under section 84 of the Nationality, Immigration and Asylum Act 2002, “removal” means enforced removal under the Secretary of State’s directions. A safe voluntary return to another part of the country is therefore irrelevant to whether enforced removal would breach Article 3.

It remains relevant to the Refugee Convention ground. A person able to return voluntarily and safely is not outside the country owing to a well-founded fear of persecution.

The tribunal must assess the known route and destination of enforced removal. An undertaking not to remove until conditions become safe cannot reduce the claimant’s legal protection or delegate to the Secretary of State an issue the tribunal must decide.

The appellant, an Iraqi national registered in Ranya in the Independent Kurdish Region (IKR), appealed against the First-tier Tribunal’s dismissal of his protection appeal. The First-tier Tribunal accepted core aspects of his account but rejected a risk arising from his political activities or criminal conduct. It also rejected his claim that the absence of a Civil Status Identity Card (CSID) would expose him to destitution.

The judge reasoned that the appellant could voluntarily return directly to the IKR, obtain his CSID there and avoid the risks associated with enforced return through Baghdad. Permission was granted only on the legal correctness of that approach.

The central issue was whether a person who would be at risk if forcibly returned to one part of his country could be refused protection because he could voluntarily return safely to another part.

1. Appeal allowed on human rights grounds. The First-tier Tribunal made an error of law by treating the appellant’s ability to return voluntarily to the IKR as an answer to the statutory appeal.

2. Under section 84 of the Nationality, Immigration and Asylum Act 2002, removal means enforced removal pursuant to the Secretary of State’s directions. The tribunal must assess the consequences of that removal, rather than a hypothetical voluntary return.

3. A safe voluntary return remains material to the Refugee Convention ground. A person who can voluntarily return safely is not outside his country because of a well-founded fear of persecution and is not owed non-refoulement protection under Article 33(1). That additional definitional requirement does not apply to the human-rights ground in section 84(1)(c).

4. For Article 3, the sole question was whether enforced removal would be unlawful under section 6 of the Human Rights Act 1998. The appellant’s ability to avoid the risk by voluntarily travelling to the IKR fell outside that enquiry.

5. The Secretary of State should identify the intended destination and route of enforced removal, which provide the focus of the appeal. Enforced return to Iraq was then possible only through Baghdad International Airport, because the IKR accepted only voluntary returnees. The safety assessment had therefore to concern return through Baghdad.

6. An undertaking not to remove the appellant to Baghdad until he had a CSID could not be accepted. It would reduce the Article 3 protection presently due and impermissibly leave a material part of the legal claim for later determination by the Secretary of State.

7. There was no clear undertaking to enforce removal directly to the IKR. On the facts found, removal through Baghdad without the necessary documentation would breach Article 3. The Upper Tribunal set aside the First-tier Tribunal’s decision and remade the appeal by allowing it on human-rights grounds.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal on human-rights grounds, set aside the First-tier Tribunal’s decision, and remade the decision.
• First-tier Tribunal: Dismissed the appellant’s protection appeal. No citation was stated in the judgment.