In relation to Iraq, do the contested and non-contested areas within AA (Article 15(c) (Rev 1) Iraq CG [2015] remain relevant?

by Robert Goodwin of 9 Park Place

Robert Goodwin considers whether, in relation to Iraq, do the contested and non-contested areas within AA (Article 15(c) (Rev 1) Iraq CG [2015] remain relevant?

The UK, as a signatory of the Refugee Convention (1951) and the European Convention of Human Rights (1950), has clear doctrines to apply when assessing the validity of an individual's claim for asylum or humanitarian protection. For instance, the question under the Refugee Convention Art.1A when determining whether somebody obtains asylum is whether an individual faces 'a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion...and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.'

The difficulty however is that this this clearly requires an assessment and knowledge of the culture, society and standing of the country from which that person is a national – an intellectual well that every Judge cannot be expected to possess for every country. Therefore 'country guidance' case law has developed which give guidance as to how each country should be approached. Such case law should only be departed from if there are 'very strong grounds supported by cogent evidence' (SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940 (13 July 2012)). 'AA' is currently the caselaw regarding the situation within Iraq. Due to the date of its promulgation, it considered evidence up to April 2015.

One of the main principles of AA is to effectively divide the country into 'contested' and 'non-contested' areas. A return to a 'contested area' automatically contravenes the European Qualification Directive Article 15(c) (2004/83/EC) which, in short, provides that an individual cannot be returned to an area where there have been substantial grounds shown that an individual would face a real risk of suffering serious harm. Nobody therefore can be returned to a 'contested' area no matter their links to the area or the family which may remain there. Only 'non-contested' areas may receive returnees and whether a return is a breach of the UK's obligations is considered against the factual scenario of the particular case. This position was unchanged in BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC) (although admittedly that case was focussed on the security situation within Baghdad which is not considered a 'contested' area).

However the Home Office Country Policy and information note: Security and humanitarian situation Iraq, published in March 2017 states this no longer reflects the reality. It provides that 'there are strong grounds to depart from AA's assessment of Article 15(c)'. Contemporaneous statistics are relied upon within the guidance to justify such a departure as well as reference to the losses suffered by Daesh since 2015.

Therefore the Immigration Tribunal currently stands in the invidious position of having caselaw and government policy standing diametrically opposed on a key issue. Of course, the inherent nature of many of the countries from which asylum seekers seek refuge from is their unstable and combustible nature – highly unsuitable for longstanding, binding precedents. Notwithstanding this however, having such a contrast between guidance is clearly undesirable.

Prior to this Home Office policy it was assumed that Iraqis could not be returned to contested areas under any circumstance. Now this is not the case. Therefore until further caselaw is issued, whether the delineation of 'contested areas' within 'AA' continues to be appropriate will remain an issue to be decided upon on a case-by-case basis by Immigration Judges and no Immigration practitioner should take it as a given that the caselaw will be followed.

[N.B – the Court of Appeal has recently found an error of law within AA however as yet no full judgment has been issued regarding this. In any event the error of law was in relation to the relevance of Iraqi civil status identity documents and not the issue of contested/non-contested areas.]

First published: 10th August 2017

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