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Commentary on the December 2011 UKBA's Operational Guidance

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Commentary on the December 2011 UKBA's Operational Guidance THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE UK BORDER AGENCY, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS. 20th February 2012 A Commentary on the December 2011 Iraq Operational Guidance Note This commentary identifies what the ‘Still Human Still Here’ coalition considers to be the main inconsistencies and omissions between the currently available country of origin information (COI) and case law on Iraq and the conclusions reached in the December 2011 Iraq Operational Guidance Note (OGN), issued by the UK Border Agency. Where we believe inconsistencies have been identified, the relevant section of the OGN is highlighted in blue. This commentary is a guide for legal practitioners and decision-makers in respect of the relevant COI, by reference to the sections of the Operational Guidance Note on Iraq issued in December 2011. To access the complete OGN on Iraq go to: http://www.bia.homeoffice.gov.uk/sitecontent/documents/policyandlaw/countryspecificasylumpolicyogns/ The document should be used as a tool to help to identify relevant COI and the COI referred to can be considered by decision makers in assessing asylum applications and appeals. This document should not be submitted as evidence to the UK Border Agency, the Tribunal or other decision makers in asylum applications or appeals. However, legal representatives are welcome to submit the COI referred to in this document to decision makers (including judges) to help in the accurate determination of an asylum claim or appeal. The COI referred to in this document is not exhaustive and should always be complemented by case-specific COI research. Contents Main categories of claims 3.6 General security situation p. 3 Security situation in Baghdad p. 5 3.7 Perceived political opponents, including collaborators and those considered as “un- p. 13 Islamic” journalists and those in fear of kidnapping Nature and extent of threats from armed groups p. 16 Kidnappings p. 18 3.8 Former members of the Ba’ath Party p. 25 Family members or associates of former members of the Ba’ath Party p. 25 3.9 Honour crimes p. 28 3.10 Christians, including Converts and other religious minorities p. 32 3.11 Prison conditions p. 37 2.3 Actors of Protection p. 39 2.4 Internal relocation p. 50 Relevance Analysis p. 51 Entry to the Kurdistan Region of Iraq p. 51 Reasonableness Analysis p. 69 1 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE UK BORDER AGENCY, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS. Mental health treatment and psychological support p. 70 2.5 Country Guidance caselaw p. 75 5. Returns p. 78 Index of Sources p. 82 APPENDIX 1. Useful sources to consult on the situation for internally displaced persons in Iraq p. 90 2. Useful sources to consult on the security situation in Iraq p. 92 2 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE UK BORDER AGENCY, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS. 3.6 General security situation Excerpt from the December 2011 Iraq OGN 3.6.14 In addition, each case must also be considered under Article 15 (c) of the EU Qualification Directive/Immigration Rule 339C to ascertain whether the individual claimant would be at real risk of indiscriminate violence. The current evidence is that the level of indiscriminate violence in Iraq is not at such a high level that substantial grounds exist for believing that an applicant, solely by being present there, faces a real risk which threatens his life or person. However, this conclusion must be considered in the light of the up to date country of origin information. For a claim to succeed under Article 15(c) of the Qualification Directive, an individual would need to show that their personal circumstances are such that they would be at real risk and that there was no internal relocation option open to them. A claim under Article 15(c) of the Qualification Directive should succeed if a claimant establishes that particular factors place him or her at additional risk above that which applies to the civilian population generally, such that he or she is at real risk of serious harm from the levels of indiscriminate violence that do exist and that internal relocation to a place where there is not a real risk of serious harm is not reasonable. It has not yet been established in caselaw what if any characteristics may place an individual in such an enhanced risk category in Iraq, so each case must be considered on its individual merits. The highlighted sentence above contradicts the guidance provided by UNHCR in its April 2009 Eligibility Guidelines, whose continued applicability were reconfirmed in July 2010 and in a statement issued in December 2010, stating that in particular those Iraqis originating from Iraq’s governorates of Baghdad, Diyala, Ninewa and Sala-al-Din, as well as from Kirkuk province should not be returned due to the security situation prevailing there: UNHCR, UNHCR reports increase in flight of Iraqi Christians; reiterates advice on protection needs, 17/12/2010 [...] UNHCR strongly reiterates its call on countries to refrain from deporting Iraqis who originate from the most perilous parts of the country. [...] UNHCR reiterates its position that asylum seekers who originate from Iraq's governorates of Baghdad, Diyala, Ninewa and Salah-al-Din, as well as from Kirkuk province, should not be returned and should benefit from international protection, whether in the form of refugee status under the 1951 Refugee Convention or a complementary form of protection. In addition, of course, the merits of the claims of all other Iraqi applicants need to be considered carefully, including those who are religious minorities. Our position reflects the volatile security situation and the still high level of violence, security incidents, and human rights violations taking place in parts of Iraq. UNHCR considers that serious – including indiscriminate – threats to life, physical integrity or freedom resulting from violence or events seriously disturbing public order are valid reasons for international protection [...] UNHCR, Note on the Continued Applicability of the April 2009 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Iraqi Asylum-Seekers, July 2010 [...] III. Conclusion The situation in Iraq is still evolving. UNHCR will continue to monitor developments in the country and will update the April 2009 UNHCR Guidelines once it judges that the situation is sufficiently changed. In the interim, UNHCR advises those involved in the adjudication of international protection claims lodged by asylum-seekers from Iraq and those responsible for establishing government policy in relation to this population continue to rely on the April 2009 UNHCR Guidelines. Accordingly, the current UNHCR position on returns to Iraq also remains unchanged.55 [Footnote 55] 55 UNHCR recommends that, unless volunteering for return, no Iraqi from the five Central Governorates and those belonging to the specific groups which have been identified to be at risk from the Southern Governorates and Al-Anbar, should be forcibly returned to Iraq until such time as there is 3 THIS DOCUMENT SHOULD BE USED AS A TOOL FOR IDENTIFYING RELEVANT COUNTRY OF ORIGIN INFORMATION. IT SHOULD NOT BE SUBMITTED AS EVIDENCE TO THE UK BORDER AGENCY, THE TRIBUNAL OR OTHER DECISION MAKERS IN ASYLUM APPLICATIONS OR APPEALS. substantial improvement in the security and human rights situation in the country. When considering return of persons originating from the Southern Governorates or Al-Anbar Governorate not found to be in need of international protection, UNHCR recommends that caution needs to be exercised with regard to the evolving security situation in given areas, as well as absorption capacity, availability of community support and services. UNHCR, in particular, advises against the return of persons to areas from which they do not originate [...] The previous CG case HM and Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC) (22 September 2010) was quashed by the Court of Appeal on 13th December 2012 in HM (Iraq) & Anor v Secretary of State for the Home Department [2011] EWCA Civ 1536 (13 December 2011) and is no longer relied upon as a CG case. The Court of Appeal remitted the case back to the Immigration and Asylum Chamber to be reheard as a CG case on 15(c). The hearing is currently listed for end of April/early May 2012 and it is advised that legal representatives seek an adjournment to have their case stayed behind HM. Should this be unsuccessful, the analysis and COI presented further below might assist in documenting the current security situation in Iraq. Another case of importance to legal representatives is the judgement by the Administrative Court in Omar v Secretary of State for the Home Department [2010] EWHC 2792 (Admin) (05 November 2010), which noted that an ethnic Kurd whose father actively supported the Ba'ath party, that is to say opposed the Kurdish cause, might, in order to avoid risks on return, need to live in relatively confined areas, where they might find others of similar backgrounds: and there was a possibility that they would face indiscriminate violence in that area. See the judgement as follows: 43. In the present case the claimant's individual characteristics are that he is an ethnic Kurd whose father actively supported the Ba'ath party, that is to say opposed the Kurdish cause. That may (and the expert report says it will) mean that in order to achieve any measure of ordinary or secure life the Claimant would, on return to Iraq, need to live in relatively confined areas, where he might find others of similar backgrounds.
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