Asylum and Immigration Tribunal

KH (Article 15(c) Qualification Directive) CG [2008] UKAIT 00023

THE IMMIGRATION ACTS

Heard at Field House On 28 January- 1 February 2008

Before

MR C M G OCKELTON, DEPUTY PRESIDENT, ASYLUM AND IMMIGRATION TRIBUNAL SENIOR IMMIGRATION JUDGE STOREY SENIOR IMMIGRATION JUDGE GRUBB

Between

Appellant and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Husain and Ms S Knights instructed by the Refugee Legal Centre For the Respondent: Mr P Saini QC, Mr S Wordsworth and Mr A Palmer instructed by the Treasury Solicitor

(1) Key terms found in Article 15(c) of the Qualification Directive are to be given an international humanitarian law (IHL) meaning. Subject to (3) below, the approach of the Tribunal in HH & others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022 to this provision is confirmed.

(2) Article 15(c) does add to the scope of Article 15(a) and (b), but only in a limited way. It is limited so as to make eligible for subsidiary protection (humanitarian protection) only a subset of civilians: those who can show that as civilians they face on return a real risk of suffering certain types of serious violations of IHL caused by indiscriminate violence.

© CROWN COPYRIGHT 2008 (3) Article 15(c) is not intended to cover threats that are by reason of all kinds of violence. It does not cover purely criminal violence or indeed any other type of non-military violence. Nor does it cover violence used by combatants which targets adversaries in a legitimate way.

(4) Where it is suggested that a person can qualify under Article 15(c) merely by virtue of being a civilian, the principal question that must be examined is whether the evidence as to the situation in his or her home area shows that indiscriminate violence there is of such severity as to pose a threat to life or person generally. If such evidence is lacking, then it will be necessary to identify personal characteristics or circumstances that give rise to a “serious and individual threat” to that individual’s “life or person”.

(5) Given that the whole territory of Iraq is in a state of internal armed conflict for IHL purposes (that being conceded by the respondent in this case), a national of Iraq can satisfy the requirement within Article 15(c) that he or she faces return to a situation of armed conflict, but will still have to show that the other requirements of that provision are met.

(6) Neither civilians in Iraq generally nor civilians even in provinces and cities worst-affected by the armed conflict can show they face a “serious and individual threat” to their “life or person” within the meaning of Article 15(c) merely by virtue of being civilians.

DETERMINATION AND REASONS

1. The plight of persons who flee armed conflicts affronts our common humanity. But when such persons claim asylum the answer given by host states has often been that merely being a victim of armed conflict does not make a person a refugee: see e.g. Adan [1999] 1 AC 293. Claims based on human rights, Article 3 ECHR in particular, have often met with a similar negative response: see e.g. Vilvirajah v UK (1991) 14 EHRR 248. The underlying question raised by this case is whether, by virtue of the provisions made in the EU Qualification Directive relating to eligibility for subsidiary protection, Member States of the EU are obliged to take a different view. That we have to decide this question in the context of a claim made by a national of Iraq, a country which has seen many leave in order to flee conflict there, underscores how potentially important is its answer.

2. We refer throughout this decision to the EU Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the