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New Iraqi Country Guideline case out


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The tribunal has held that it is safe to return to Iraq. In HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) President Blake finds that

The degree of indiscriminate violence characterising the current armed conflict taking place in Iraq is not at such a high level that substantial grounds have been  shown for believing that any civilian returned there, would, solely on account of his presence there face a real risk of being subject to that threat.

This may come as little surprise to some, as it would be quite a tall order to show that any person returned to Iraq would be at danger of serious harm. There are still enormous problems, but the level of violence does seem to be diminishing. Indeed, it seems that the representatives had come to this conclusion themselves because they pulled out of the hearing. Public funding is subject to a merits test, and it is recorded in the determination this was the reason that the representatives pulled out. It all looks like it was a pretty excruciating affair, though, and the tribunal certainly does not seem to have assisted with a graceful withdrawal.

Bloody retreat seems a better description. See paragraphs 27 to 44.

I can’t bring myself to move on the substance of the case without noting that Dr Herring’s report was not used in the end, but a great deal of time and effort was expended in obtaining it. The lines really do write themselves sometimes…

For anyone still struggling with what Article 15(c) of the Qualification Directive means (most of us, I think), paragraph 67 is very helpful:

We identify the following passages of the case-law binding on us as particularly apposite in the identification of the test for  Article 15 (c) protection in the present case:

a.     The Article seeks to elevate the state practice of not returning unsuccessful asylum seekers to war zones or situations of armed anarchy for reasons of common humanity into a minimum standard (QD at [21]).

b.     The scope of protection is an autonomous concept distinct from and broader than Art 3 protection even as interpreted by the European Court of Human Rights (ECtHR) in NA v United Kingdom (BAILII: [2008] ECHR 616) (Elgafaji at [33]-[36]; QD at [20], [35]); HH and Others) at [31]).

c.      It is concerned with “‘threat .. to a civilian’s life or person’ rather than to specific acts of violence .. the threat is inherent in a general situation of  .. armed conflict…The violence that gives rise to the threat is described as indiscriminate, a term which implies that it may extend to people irrespective of their personal circumstances” (Elgafaji [34]).

d.     The Article is intended to cover the “real risks and real threats presented by the kinds of endemic acts of indiscriminate violence – the placing of car bombs in market places; snipers firing methodically at people in the streets  – which have come to disfigure the modern world”. It is concerned with “serious threats of real harm” (QD at [27] and [31]).

e.     “Individual must be understood as covering harm to civilians irrespective of their identity where the degree of indiscriminate violence characterising the armed conflict taking place reaches such a high level that substantial grounds are shown for believing that a civilian …would solely on account of his presence on the territory… face a real risk of being subjected to the serious threat” (Elgafaji [35]).

f.      “The more the applicant is able to show that he is specifically affected by reason of factors  particular to his personal circumstances, the lower the level of indiscriminate violence required” (Elgafaji [39]).

g.     A consistent pattern of mistreatment is not a necessary requirement to meet the real harm standard. “The risk of random injury or death which indiscriminate violence carries is the converse of consistency” (QD at [32]).

h.     There is no requirement that the armed conflict itself must be exceptional but there must be “an intensity of indiscriminate violence great enough to meet the test spelt out by the ECJ” and this will self evidently not characterise every such situation (QD at [37]).

i.       “The overriding purpose of Article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what conflict would ordinarily suggest) or a single entity or faction” (QD at [35]).

j.       ‘Civilian’ means all genuine non-combatants at the time when the serious threat of real harm may materialise (QD [37]).

Interestingly, the tribunal rejects the Home Office argument that it is only accidental violence against civilians that comes within Article 15(c) and holds that violence deliberately targeted against civilians is also included. It is quite a liberal, expansive approach to Article 15(c), in fact, but ultimately the panel concludes that the evidence just does not show the level of threat of harm that would be needed.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.