HM and Others (Article 15(C)) Iraq CG: UTIAC 22 Sep 2010

UTIAC Rule 9(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which provides for UNHCR participation in Upper Tribunal proceedings as an intervener in an ‘asylum case’, is to be construed purposively to include subsidiary (humanitarian) protection.
In deciding whether to accept an application by an appellant to withdraw an appeal in an asylum-related case which the parties have previously agreed was suitable for fresh Tribunal country guidance, particularly relevant will be the importance to the public interest of the Tribunal assisting immigration judges, primary decision-makers and litigants in giving such guidance wherever it is possible and reasonably practical to do so.
The Tribunal may decide that permission to adduce an expert report on a country guidance case shall be given on the basis that the report is disclosed to the Upper Tribunal irrespective of whether the commissioning party intends to call the witness.
Following Elgafaji, Case C-465/07, BAILII: [2009] EUECJ C-465/07 and QD (Iraq) [2009] EWCA Civ 620, in situations of armed conflict in which civilians are affected by the fighting, the approach to assessment of the level of risk of indiscriminate violence must be an inclusive one, subject only to the need for there to be a sufficient causal nexus between the violence and the conflict.
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.
If the figures relating to indices such as the number of attacks or deaths affecting the civilian population in a region or city rise to unacceptably high levels, then, depending on the population involved, Article 15(c) might well be engaged, at least in respect of the issue of risk in that area, although it is emphasised that any assessment of real risk to the appellant should be one that is both quantitative and qualitative and takes into account a wide range of variables, not just numbers of deaths or attacks.
If there were certain areas where the violence in Iraq reached levels sufficient to engage Article 15(c) the Tribunal considers it is likely that internal relocation would achieve safety and would not be unduly harsh in all the circumstances.
The evidence relating to UK returns of failed asylum seekers to Iraq in June 2010 does not demonstrate that the returns process will involve serious harm. Further, it is significant that UKBA is already taking steps to improve procedures in the light of concerns expressed by UNHCR and others over the two charter flights in that month.
So far as concerns UK enforced returns to Iraq, the Tribunal is not satisfied that recent problems demonstrate that the process results in serious harm.


[2010] UKUT 331 (IAC)




England and Wales


Updated: 25 August 2022; Ref: scu.425490