The Upper Tribunal judgment in SMO & KSP (Civil status documentation; article 15) Iraq CG [2022] UKUT 110 (IAC) comes as a relief for those representing Iraqi nationals who fear that they cannot be properly re-documented on return to Iraq. The case provides guidance on whether someone sent back to Iraq will be able to achieve re-documentation before, or within a reasonable time after, return.

The tribunal held that – you guessed it – an “intensely fact-sensitive” analysis of the availability and accessibility of the relevant records is required in each particular case. Interestingly, the rollout of a new ID card scheme may make it increasingly difficult for the Home Office to remove people depending on where in Iraq they are from.

How did this case come about?

In December 2019, the same constitution of the Upper Tribunal issued a new, consolidated country guidance case following the military defeat of the Islamic State in 2017. That judgment is SMO, KSP & IM (Article 15(c); identity documents) Iraq CG [2019] UKUT 400 (IAC) and you can read Nath’s very helpful analysis here.

As Nath indicated, the appellants sought permission to appeal aspects of the decision to the Court of Appeal. Permission was granted in relation to the issue of Civil Status documentation, but there is no subsequent Court of Appeal decision as the appeal was allowed by consent of the parties. The case instead returned to the Upper Tribunal.

What was the issue in the case?

The statement in the headnote that the case replaces all existing country guidance on Iraq is somewhat misleading as the Upper Tribunal in this case narrowly focused on the issue of Civil Status documentation whilst adopting its previous findings on all other issues, including Article 15(c) of the Qualification Directive. If you are looking for the evidence, submissions and reasoning in relation to an issue other than Civil Status documentation, you will need to consult the 2019 decision.

Those of you who frequently deal with Iraqi cases will be aware of the importance of the Civil Status documentation issue, which features prominently in all previous country guidance on Iraq. In summary, if a person lives in Iraq without either Civil Status Identity Documentation (CSID) or a new biometric Iraqi National Identity Card (INID) they encounter treatment or conditions which are inhuman or degrading within the meaning of Article 3 of the European Convention on Human Rights. Consequently, if an Iraqi national is able to show (to the lower standard of proof) that they would not be able to obtain such a document before or upon return to Iraq, they qualify for humanitarian protection.

The issue that the Court of Appeal granted permission on was: whether the Upper Tribunal was correct to find that most Iraqi citizens would be able to recall the volume and page number in the Family Book, a registration system which contains personal details of all members of an Iraqi family. CSIDs and INIDs are issued based on information in the Family Book. While narrow, this issue is crucial as the availability of this information may determine whether a replacement CSID can be obtained or not.

Following remittal to the Upper Tribunal, the parties agreed to widen the scope of the appeal and resolve other issues regarding a returnee’s re-documentation process. The Home Office invited the tribunal to make findings in relation to a number of additional issues, including the age-old contention that a Laissez Passer could be used for internal travel within Iraq. Fortunately, the tribunal rejected these contentions (see paragraphs 17-22 of the headnote set out below).

What did the tribunal find?

The Upper Tribunal’s findings are set out in section C of the headnote (which is otherwise the same as the 2019 version). It states:

C. CIVIL STATUS IDENTITY DOCUMENTATION

11. The CSID is being replaced with a new biometric Iraqi National Identity Card – the INID. As a general matter, it is necessary for an individual to have one of these two documents in order to live and travel within Iraq without encountering treatment or conditions which are contrary to Article 3 ECHR. Many of the checkpoints in the country are manned by Shia militia who are not controlled by the GOI and are unlikely to permit an individual without a CSID or an INID to pass.

12. In order to obtain an INID, an individual must personally attend the Civil Status Affairs (“CSA”) office at which they are registered to enrol their biometrics, including fingerprints and iris scans. The CSA offices in which INID terminals have been installed are unlikely – as a result of the phased replacement of the CSID system – to issue a CSID, whether to an individual in person or to a proxy. The reducing number of CSA offices in which INID terminals have not been installed will continue to issue CSIDs to individuals and their proxies upon production of the necessary information.

13. Notwithstanding the phased transition to the INID within Iraq, replacement CSIDs remain available through Iraqi Consular facilities but only for those Iraqi nationals who are registered at a CSA office which has not transferred to the digital INID system. Where an appellant is able to provide the Secretary of State with the details of the specific CSA office at which he is registered, the Secretary of State is prepared to make enquiries with the Iraqi authorities in order to ascertain whether the CSA office in question has transferred to the INID system.

14. Whether an individual will be able to obtain a replacement CSID whilst in the UK also depends on the documents available and, critically, the availability of the volume and page reference of the entry in the Family Book in Iraq, which system continues to underpin the Civil Status Identity process. Given the importance of that information, some Iraqi citizens are likely to recall it. Others are not. Whether an individual is likely to recall that information is a question of fact, to be considered against the factual matrix of the individual case and taking account of the background evidence. The Family Book details may also be obtained from family members, although it is necessary to consider whether such relatives are on the father’s or the mother’s side because the registration system is patrilineal.

15. Once in Iraq, it remains the case that an individual is expected to attend their local CSA office in order to obtain a replacement document. All CSA offices have now re-opened, although the extent to which records have been destroyed by the conflict with ISIL is unclear, and is likely to vary significantly depending on the extent and intensity of the conflict in the area in question.

16. An individual returnee who is not from Baghdad is not likely to be able to obtain a replacement document there, and certainly not within a reasonable time. Neither the Central Archive nor the assistance facilities for IDPs are likely to render documentation assistance to an undocumented returnee.

17. A valid Iraqi passport is not recognised as acceptable proof of identity for internal travel by land.

18. Laissez Passers are confiscated on arrival and will not, for that reason, assist a returnee who seeks to travel from Baghdad to the IKR by air without a passport, INID or CSID. The Laissez Passer is not a recognised identity document for the purpose of internal travel by land.

19. There is insufficient evidence to demonstrate the existence or utility of the ‘certification letter’ or ‘supporting letter’ which is said to be issued to undocumented returnees by the authorities at Baghdad International Airport.

20. The 1957 Registration Document has been in use in Iraq for many years. It contains a copy of the details found in the Family Books. It is available in either an individual or family version, containing respectively the details of the requesting individual or the family record as a whole. Where an otherwise undocumented asylum seeker is in contact with their family in Iraq, they may be able to obtain the family version of the 1957 Registration Document via those family members. An otherwise undocumented asylum seeker who cannot call on the assistance of family in Iraq is unlikely to be able to obtain the individual version of the 1957 Registration Document by the use of a proxy.

21. The 1957 Registration Document is not a recognised identity document for the purposes of air or land travel within Iraq. Given the information recorded on the 1957 Registration Document, the fact that an individual is likely to be able to obtain one is potentially relevant to that individual’s ability to obtain an INID, CSID or a passport. Whether possession of a 1957 Registration Document is likely to be of any assistance in that regard is to be considered in light of the remaining facts of the case, including their place of registration. The likelihood of an individual obtaining a 1957 Registration Document prior to their return to Iraq is not, without more, a basis for finding that the return of an otherwise undocumented individual would not be contrary to Article 3 ECHR.

22. The evidence in respect of the Electronic Personal Registry Record (or Electronic Registration Document) is presently unclear. It is not clear how that document is applied for or how the data it contains is gathered or provided. On the state of the evidence as it presently stands, the existence of this document and the records upon which it is based is not a material consideration in the evaluation of an Iraqi protection claim.

In addition to the headnote, practitioners dealing with an Iraqi case may find it helpful to read at least paragraphs 51-85 of the judgment which provide the reasoning on which the tribunal reached its findings in paragraphs 11-16 of the headnote.

Questions to consider following the judgment

Following this judgment, specific issues likely to arise in Iraqi redocumentation cases include:

• Which Civil Status Affairs office is the claimant registered at?

• Have records at the relevant office been destroyed in the conflict with the Islamic State?

As confirmed in the headnote, whether or not this will be in issue will depend on the extent and intensity of the conflict in the particular area. Claimants seeking to argue that there is a reasonable likelihood that records will have been destroyed and that they will as a result not be able to achieve re-documentation on return should be advised to provide evidence of this. Depending on the facts of the case, it may be helpful to instruct a country expert on this point.

• Does the claimant know the volume and page reference of the entry in the Family Book in Iraq?

Where a claimant asserts that they do not know the Family Book reference, an “intensely fact-sensitive” analysis is required to resolve this question. The tribunal sets out relevant factors at paragraph 84. These include the person’s age and the frequency with which they will have been required to produce these details in the past.

The Upper Tribunal contrasts “a businessman with a family who travels throughout Iraq buying and selling property” who might struggle to persuade a decision-maker that he did not know the relevant numbers and a “single, young farmer” who had never had any need to travel outside his village who may reasonably not recall the numbers.

• Does the claimant have family members remaining in Iraq?

Even where the decision-maker accepts that someone does not know the volume and page reference of the Family Book entry, they will still be expected to be able to find out if they have family members (especially on their father’s side) remaining in Iraq. This would be a means of confirming the relevant information given the interconnected nature of the Family Book records.

• Does the relevant office continue to issue CSIDs or has it transferred to the new INID system?

As confirmed in the judgment, the Home Office is able to ask the Iraqi authorities whether a particular Civil Status Affairs office has transferred to the INID system or still issues CSIDs. This issue is important as a claimant may be able to obtain a CSID by proxy (including from the UK) if the relevant office has not yet transferred to the new INID system. By contrast, INIDs cannot be obtained by proxy as they require a person’s physical attendance at a Civil Status Affairs office in order for them to provide their biometric data.

• Will the claimant require a CSID or INID for onward travel within Iraq to the relevant Civil Status Affairs office after arrival?

Where re-documentation cannot be achieved by proxy because a Civil Status Affairs office has transferred to the new INID system, a claimant’s ability to travel between the place they arrive at in Iraq (currently removals from the UK are possible to Baghdad, Erbil or Sulaymaniyah) and their relevant Civil Status Affairs office requires consideration. If a claimant can prove that it is reasonably likely that this onward travel without a CSID or INID exposes them to the risk of inhuman or degrading treatment, they qualify for humanitarian protection. Whether that is so will depend on things like the likelihood that they will encounter a checkpoint (especially one that is not controlled by the Iraqi government).

Depending on the proximity of the claimant’s home area to the place of arrival in Iraq, country expert evidence may therefore be necessary.

Concluding thoughts

The judgment makes for an interesting read, especially when it comes to the evidence that the Home Office sought to rely on to invite the tribunal to depart from previous country guidance. The tribunal refers to the “piecemeal and unorthodox fashion” with which the Secretary of State presented her evidence as the “hallmark” of this case (see paragraph 116). Much of the evidence – which the expert Dr Fatah described as little more than “political puff” – was email exchanges and other communications between British and Iraqi officials in which the latter provided assurances that returnees would not face any difficulties on return due to being undocumented.

From the Home Office point of view, these rather speculative attempts to persuade the Upper Tribunal to ditch the previous country guidance is perhaps understandable in light of the continuing rollout of the new INID system. Getting an INID requires a person’s physical presence at the relevant Civil Status office. Consequently, achieving returns to Iraq of those whose Civil Status office cannot easily be reached from Baghdad, Erbil or Sulaymaniyah is becoming more difficult.