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Summary in Primary Language:
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Additional Legal Information:
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The appeals by applicants HM and RM against the SSHD’s refusal of their claims for asylum were dismissed by an...The appeals by applicants HM and RM against the SSHD’s refusal of their claims for asylum were dismissed by an immigration judge. The claims previously came before the Tribunal as a country guidance case following an order for reconsideration of their appeals. The Tribunal’s dismissal of their appeals was subsequently set aside by the Court of Appeal and their cases remitted to the Upper Tribunal.
The appeal by applicant HF against the SSHD’s refusal of his claim for asylum was dismissed by an immigration judge. His claim comes before the Upper Tribunal following an order for reconsideration of that appeal.
The broad issue before the Tribunal is whether the current factual situation in Iraq engages the protection of Article 15(c) of the EU Qualification Directive, thereby entitling these applicants to subsidiary protection status. The new country guidance on Iraq replaces previous country guidance (paragraph 360.B).
In the course of the determination, the Tribunal also gives legal guidance on how Article 15(c) is to be interpreted (paragraphs 31-45, 360.A). This guidance gives further precision to the decisions on the significance of Article 15(c) by the Court of Justice of the EU in Elgafaji Case C-465/07 and the UK Court of Appeal in QD (Iraq) [2009] EWCA Civ 620. Of particular interest are the following comments from the Tribunal on the meaning of the word ‘indiscriminate’ in Article 15(c):
42. We recognise that the threat to life or person of an individual need not come directly from armed conflict. It will suffice that the result of such conflict is a breakdown of law and order which has the effect of creating the necessary risk. It is obvious that the risk is most likely to result from indiscriminate bombings or shootings. These can properly be regarded as indiscriminate in the sense that, albeit they may have specific or general targets, they inevitably expose the ordinary civilian who happens to be at the scene to what has been described in argument as collateral damage. By specific targets, we refer to individuals or gatherings of individuals such as army or police officers. The means adopted may be bombs, which can affect others besides the target, or shootings, which produce a lesser but nonetheless real risk of collateral damage. By general targets we refer to more indiscriminate attacks on, for example, Sunnis or Shi’as or vice versa. Such attacks can involve explosions of bombs in crowded places such as markets or where religious processions or gatherings are taking place.
The clear implication is that – following the approach to defining the term ‘armed conflict’ by the Court of Appeal in QD (Iraq) - this term is also not to be interpreted by reference to the international law of armed conflict.
The Tribunal also has some interesting comments on how UNHCR assessments of risk in particular country will be evaluated by the Tribunal (paragraphs 275-287), and the approach that the Tribunal will take to unrepresented asylum claimants in country guidance cases (paragraphs 9-23).
Against the backcloth of its country guidance findings, the Tribunal examines and dismisses each of the applicants’ appeals. read more
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