AAH (Iraqi Kurds – internal relocation) (CG) [2018] UKUT 212 (IAC) is a recent country guidance case on the availability of internal relocation for Iraqi Kurds to the Iraqi Kurdish Region.

This case updates some of the guidance contained in AA (Iraq) v SSHD [2017] EWCA Civ 944, which had in turn corrected the previous Iraqi country guidance case in the Upper Tribunal of AA (Iraq) v SSHD [2015] UKUT 544 (IAC).

In particular, it considers whether or not internal relocation by an Iraqi Kurd to the IKR would be reasonable given the obstacles he or she would face: namely, getting there from Baghdad, crossing the border into the IKR, and then living there.

The case re-emphasises the importance of obtaining an Iraqi Civil Status Identity Document (“CSID”) for all returnees, the possession of which will impact heavily on the feasibility of relocation.

Iraq Recap

According to the guidance set out in AA (Iraq), there is a state of internal armed conflict in certain parts of Iraq the intensity of which means that

there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive

This guidance was originally given in 2015, although reformulated in 2017 by the Court of Appeal after both parties agreed that the Upper Tribunal had fundamentally misunderstood the importance of a CSID to life in Iraq in its decision.

The present case proceeded on the basis that the guidance relating to Article 15 held good (paragraph 2).

Civil Status Identity Document

The Upper Tribunal revisited the steps which all Iraqis, both those in the UK and those who might be returned home, would need to take in order to replace or obtain a CSID. It will depend on the individual circumstances of the case, with factors including:

i) Whether P has any other form of documentation, or information about the location of his entry in the civil register. An INC, passport, birth/marriage certificates or an expired CSID would all be of substantial assistance. For someone in possession of one or more of these documents the process should be straightforward. A laissez-passer should not be counted for these purposes: these can be issued without any other form of ID being available, are not of any assistance in ‘tracing back’ to the family record and are confiscated upon arrival at Baghdad;

ii) The location of the relevant civil registry office. If it is in an area held, or formerly held, by ISIL, is it operational?

iii) Are there male family members who would be able and willing to attend the civil registry with P? Because the registration system is patrilineal it will be relevant to consider whether the relative is from the mother or father’s side. A maternal uncle in possession of his CSID would be able to assist in locating the original place of registration of the individual’s mother, and from there the trail would need to be followed to the place that her records were transferred upon marriage. It must also be borne in mind that a significant number of IDPs in Iraq are themselves undocumented; if that is the case it is unlikely that they could be of assistance. A woman without a male relative to assist with the process of redocumentation would face very significant obstacles in that officials may refuse to deal with her case at all.

This guidance issued in AAH replaces that issued at Section C of AA (Iraq).

Important concession on Article 3

The tribunal noted an important concession made by the Secretary of State in this case, accepting that

returnees who were not in possession of a CSID, and who were unable to obtain one, would face a real risk of destitution in all parts of Iraq such that Article 3 ECHR would be engaged.

This is reflected at paragraph 2.4.9 of the Home Office Country Policy and Information Note Iraq: Return/ Internal Relocation:

A person who:

1. is unable to replace their CSID or INC; and

2. is unable to obtain support from family members or others

is likely to face significant difficulties in accessing services and humanitarian conditions which may reach the Article 3 threshold. In these circumstances a grant of Humanitarian Protection (HP) will be appropriate.

The tribunal also accepted the uncontested expert witness evidence provided in this case by Dr Rebwah Fatah that the process of obtaining a CSID has become more difficult since the occupation of many areas of Iraq by ISIL in 2014-2017, and the difficulties this had created for the bureaucracy needed to provide these documents to returnees who might need them (paragraphs 103-105).

The journey from Baghdad

In relation to the specific issues concerning Kurdish returnees, and whether their hypothetical relocation would be “reasonable”, the tribunal provided detailed guidance (in a headnote approaching 1200 words) which replaces Section E of the guidance in AA (Iraq). The headnote is reproduced in full below.

The tribunal found that the journey from Baghdad for an Iraqi national returnee (P) of Kurdish origin with a CSID would be relatively straightforward. However, those without

will face considerable difficulty …. There are numerous checkpoints en route, including two checkpoints in the immediate vicinity of the airport. If P has neither a CSID nor a valid passport there is a real risk of P being detained at a checkpoint until such time as the security personnel are able to verify P’s identity. It is not reasonable to require P to travel between Baghdad and IKR by land absent the ability of P to verify his identity at a checkpoint. This normally requires the attendance of a male family member and production of P’s identity documents but may also be achieved by calling upon “connections” higher up in the chain of command.

Once at the border, the tribunal considered the problems that might arise for a returnee actually re-entering the territory. The conclusion is that, if he or she has managed to make it that far, there would be no real difficulty or risk of harm at this stage.

Once inside the Iraqi Kurdish Region, the main consideration will be the extent of the family network available to the returnee:

If P has family members living in the IKR cultural norms would require that family to accommodate P. In such circumstances P would, in general, have sufficient assistance from the family so as to lead a ‘relatively normal life’, which would not be unduly harsh. It is nevertheless important for decision-makers to determine the extent of any assistance likely to be provided by P’s family on a case by case basis.

For those without family assistance, the tribunal find that a returnee’s accommodation options would be limited. Any requirement to live in what is described as a “critical shelter arrangement” (an “unfinished or abandoned structure, makeshift shelter, tent, mosque, church or squatting in a government building”) would make a requirement to relocate internally “unduly harsh” unless the returnee had access “to basic necessities such as food, clean water and clothing”. In considering this

account must be taken of the fact that failed asylum seekers are entitled to apply for a grant under the Voluntary Returns Scheme, which could give P access to £1500. Consideration should also be given to whether P can obtain financial support from other sources such as (a) employment, (b) remittances from relatives abroad, (c) the availability of ad hoc charity or by being able to access PDS rations.

The tribunal then gives guidance on the factors which might affect an returnee’s capacity to find work in the Iraqi Kurdish Region, including their gender, possession of a CSID, and skills and experience (amongst other factors).