Tribunal decisions

The decision

IAC-BH/CH-PMP/SA-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: AA/00816/2015

THE IMMIGRATION ACTS

Heard at Manchester
Decision & Reasons Promulgated
On 1st November 2016
On 29th November 2016

Before

UPPER TRIBUNAL JUDGE REEDS

Between

as
(ANONYMITY DIRECTION made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Brown, Counsel instructed on behalf of the Appellant
For the Respondent: Mr Bates, Senior Presenting Officer

DECISION AND REASONS
1. Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Appellant in this determination identified as AS. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
The background:
2. The Appellant, with permission, appeals against the decision of the First-tier Tribunal who, in a decision promulgated on 12th May 2015 dismissed the Appellant's claim for asylum or humanitarian protection. Permission was granted to appeal that decision by Deputy Upper Tribunal Judge McGinty on 30th July 2015 and in a determination promulgated on 26th May 2016, Upper Tribunal Judge Coker found an error of law in the decision of the First-tier Tribunal.
3. In her error of law determination, Upper Tribunal Judge Coker considered the arguments advanced on behalf of the Appellant namely that the First-tier Tribunal Judge had made a material error of law in failing to properly consider the expert report in determining that the Appellant, as a Sunni Muslim Arab would not be at risk of persecution on return to Iraq. At paragraph [7] of her decision, Upper Tribunal Judge Coker made reference to the expert evidence and the risk on return as a Sunni Muslim. She recorded that the expert expressly had considered this risk but that the First-tier Tribunal had failed to engage with this element of the Appellant's claim. Consequently, she was satisfied that the First-tier Tribunal had erred in law in failing to have regard to material evidence and set aside the decision insofar as the judge's findings that returning the Appellant (and his daughter) to Baghdad as a Sunni Muslim Arab would not place them at risk of being persecuted. The judge also preserved the other findings that had been made by the First-tier Tribunal Judge and listed the hearing as a resumed hearing.
4. As Judge Coker was unable to continue with the appeal, a transfer order was made and the appeal came before the Upper Tribunal.
5. As set out in the preceding paragraphs, the earlier decision of the First-tier Tribunal was set aside on the issue of whether returning the Appellant and his daughter to Baghdad as a Sunni Muslim Arab placed them at risk of being persecuted.
The hearing before the Upper Tribunal:
6. At the resumed hearing, further evidence was relied upon by the Appellant which included an expert report of Mr Joffe dated 9th July 2016. In a section of that report, Mr Joffe sought to comment upon the earlier decision of the Secretary of State and also the decision of the First-tier Tribunal. In particular at paragraph [21], he raised the issue of a factual error and that the judge may have misinterpreted the area in which the Appellant lived. As a result of that issue, it was agreed between the parties that the Appellant should give further evidence as to where he lived in Iraq before he left that country.
7. The Appellant gave oral evidence before the Tribunal concerning his residential address, where it was in Baghdad and its ethnic mix. His evidence was the subject of cross-examination by Mr Bates on behalf of the Secretary of State. It is not necessary for me to set out that evidence as it was common ground after hearing the evidence of the Appellant that his place of residence was in the xxxx district; a district that is still predominantly Sunni in population composition [see paragraph 21]. Mr Brown on behalf of the Appellant conceded that the evidence given by the Appellant both in-chief and in cross-examination supported that place of residence and thus that issue was determined. There was no further oral evidence given by the Appellant.
8. I therefore heard submissions of the parties. Mr Brown had produced a helpful skeleton argument dated 31st October 2016. In that skeleton argument he made a reference to further material that had been provided in the form of country reports exhibited in a bundle under cover of the letter dated 11th May 2016 and an updated bundle of 11th July 2016. His submissions began with the findings of fact that had been preserved from the decision of the First-tier Tribunal, namely that the Appellant had been born in Mosul in Northern Iraq but that he had moved from that area at the age of 3 when his family had relocated to Baghdad where he had remained and where his association with the Ba'ath Party was established.
9. He made reference to the judge's acceptance that the Appellant's wife had been killed there in February 2013 after being shot. Thus he submitted that the accepted fact of the murder of the Appellant's wife was relevant to the issue of reasonableness of return there by the Appellant and his child and that such an accepted traumatic historical event went directly to the issue of "undue harshness". Whilst the expert report had raised the issue relating to the Appellant's last address, Mr Brown conceded that that issue had now been clarified and that he had lived in the xxxxx district. However, he submitted that the Tribunal would have to assess, whether having regard to the accepted facts it would be unduly harsh to remove the Appellant and his daughter back to Baghdad. He submitted in accordance with the skeleton argument at paragraph 6 that the impact of the Appellant's daughter having to return to the place of her mother's death was a factor to be considered in terms of undue harshness (relying on the decision of the Secretary of State for the Home Department v AH (Sudan) and Others [2007] UKHL 49). He submitted that it would not require any medical evidence to support such a factor and that to remove a young child to that area would not only be harsh but would be unduly harsh and any medical report would not be necessary. In the alternative he submitted there would be a breach of Article 3 on the same basis.
10. He further submitted that the Appellant in the alternative should be granted humanitarian protection under Article 15(c). This was a fresh issue raised and not one that had been identified by Judge Coker.
11. He made reference to the current country guidance case of AA (Article 15(c)) Iraq CG [2015] UKUT 00544 and made reference to the extracts set out in the skeleton argument taken from that country guidance case. However, he submitted that the circumstances in Iraq were ever-changing and it was necessary to assess whether there was an Article 15(c) risk at the date of the hearing which could be established on the evidence. Thus he submitted that given the deteriorating country conditions since the decision in AA was promulgated, the Appellant had a legitimate claim to remain on the basis of Article 15(c) harm. He further submitted that although the expert made the point at paragraph 43 of the report that -
"the decision as to whether the levels of indiscriminate violence meets the criteria of Article 15(c) is not one that he is competent to make, 'the Appellant still sought to rely on the comments of Professor Joffe at paragraphs 24 to 34 of his report'"
The conclusion was that -
"However the details I have cited above indicate that, despite the Secretary of State's conviction to the contrary, Shia on Sunni violence is once again a significant reality in Baghdad and that, despite being directed against sectarian groups is entirely indiscriminate in terms of location and proximity because of the means by which it is delivered."
12. In respect of this issue, Mr Brown relied upon the country materials filed on the Appellant's behalf and in particular the following material. At page 218 of the bundle, a document entitled "Shi'ite militias are flush with Iranian cash now control portions of Baghdad" made a reference to the Shi'ite militias having come to dominate the security scene in Baghdad. Whilst this was dated 21st June 2014 and was therefore not up-to-date, the casualty figures for June 2016 gave a more accurate and up-to-date picture. At page 40 of the bundle referring to the United Nations Iraq, UN casualty figures for the month of May 2016, it noted that a total of 867 Iraqis were killed and another 1,459 were injured in acts of terrorism, violence and armed conflict in Iraq in May 2016. The document made reference to the number of civilians killed in May was 468 including nineteen federal police, civil defence and personal security details, protection police and Fire Department) and the number of civilians injured as 1,041 (including 96 federal police, civil defence, personal security details, facilities protection police and Fire Department). The overall casualty figures have risen over the past previous month of April where 741 were killed. The report goes on to say:-
"According to the casualties recorded for May 2016, Baghdad was the worst affected governorate with 1,007 civilian casualties (267 killed and 740 injured)."
There was a caveat to that report that in general the UNAIM had been hindered in effectively verifying casualties in conflict areas and that in some cases could only partially verify certain incidents and that they had also received without being able to verify, reports of large numbers of casualties along with unknown numbers of persons who have died in secondary effects of violence having fled their homes. Thus it was said the figures reported have to be considered at the absolute minimum. At page 41 there is a table of casualty figures. At page 45 of the bundle, a report of the Medecins San Frontieres (MSF) Iraq dated 10th June 2014 made reference to the lack of "humanitarian actors in the Baghdad area". It made reference to the MSF having providing medical care to displaced and neglected population is in Baghdad since February 2015. It makes reference to 600,000 displaced people in the Baghdad area and that at page [45] it was reported that -
"Baghdad is acutely affected by the conflict. Bombings and shootings are a daily occurrence, and somehow, after so long the people here have become desensitised of violence. Yet on the other hand, despite the tragedy that surrounds them people retain their belief in the city and hold onto their hopes for the future. There is an incredible amount of resilience here."
At page 46 of the bundle there was an article entitled "United Nations Children's Fund, Iraq Crisis 3.6 million children now at risk from increasing violence." In this article, Mr Brown made reference to children being at serious risk of harm and that a total of 1,496 children had been abducted in the country over the past two and a half years. He accepted that that had been a figure that related to the whole of Iraq and not simply Baghdad and that the figure had not been broken down to reflect the area in which the Appellant would be living. At page 49 he made reference to an incident that had occurred on 1st July 2016 whereby 662 Iraqis (half of them civilians) were killed and another 1,457 were injured in Iraq. At page 49 there was an article referring to a terrorist attack in Baghdad on 3rd July 2016 where a terrorist bombing in Baghdad reportedly killed more than a hundred people in a busy shopping street. It was described as an "avenge by the terrorists of Da'esh who have suffered defeats on the battlefront".
13. Based on that material, Mr Brown submitted that that was relevant evidence to the risk on return to Baghdad either under Article 3 or Article 15(c).
14. I asked Mr Brown to consider whether the issue of undue harshness arose on the facts of this case given that it had now been clarified that the Appellant would be returning to his home area and that he would not be relocating to any further area. He agreed that it must be the case that now it was known that the Appellant would be returned to the same address as before, internal relocation therefore did not arise. However, he relied upon treatment contrary to Article 3 based on returning to the area with his daughter, which he submitted would be inhumane and on the basis of Article 15(c) in the light of the country materials to which he had invited the Tribunal to consider which were post the AA country guidance decision.
15. Mr Bates on behalf of the Secretary of State made the following submissions. As to the issue as to risk on return as a Sunni Muslim, he submitted that the issue identified at paragraph [21] had now been resolved and that the Appellant would be returning to his previous home area. The country guidance decision of AA had confirmed that Baghdad was an area of sufficient safety and that as a Sunni Muslim he could return to that area. Whilst he would be returning with his daughter, it could not be suggested that such a return would be "unduly harsh" and that there had been no evidence in support of such an assertion. He submitted that any such submission should be supported by credible medical evidence and that it is not simply sufficient to assert that a return would cause harm of that nature. Consequently that had not been demonstrated by the evidence.
16. He submitted the county guidance decision of AA, the Appellant's own evidence and the expert report all point to the conclusion that return to his former area in Iraq which was a predominately Sunni area would be available to him. Mr Bates submitted that whilst there was sectarian violence in Baghdad, the Tribunal would require more detailed information from the expert to assess whether it was discriminate or indiscriminate violence. He made reference to paragraph 43 of the expert report and that there had been antagonism between Sunni and the Shia in Iraq and particularly in Baghdad in 2006 to 2008 and then over the eruption of ISIS within Iraq since 2014. The report made reference to the role of ISIS inspired attacks which had been specifically directed at the Shia Muslims. He submitted that whilst the expert had indicated problems in 2006 and 2008 the situation has improved and presently the evidence demonstrated that ISIS in Iraq had been forced back to Mosul by the Iraqi and Kurdish forces. Thus the level of threat from ISIS in Baghdad had diminished from its high point in 2014 and that there was no reason to believe that the threat is sufficient to render indiscriminate violence throughout Baghdad.
17. The Home Office guidance as to returns to Baghdad was set out in the Appellant's bundle at page 18. In particular at paragraph 2.2.5 it made reference to the Tribunal's findings on the humanitarian situation relating to Baghdad in the country guidance decision of AA (Iraq) and that at 2.2.6 that it was clear from the evidence that Arabic speaking males with family connections to Baghdad and a CSID are in the strongest position but those at the other end of the scale with no family connections in Baghdad who are often minority communities and have no CSID are able to provide for themselves. Those without family connections are more vulnerable than those with such connections and that women are more vulnerable than men. It also referred to those who do not speak Arabic is less likely to obtain employment and that those from minority communities are less likely able to access community support than those from the Sunni and Shia communities.
18. At the conclusion of the submissions I reserved my decision.
Discussion:
19. The following findings of fact are the preserved findings from the decision of the First-tier Tribunal. They are as follows:-
(1) The Appellant moved to Baghdad with his family members at the age of 3 and had lived and worked there in excess of 30 years.
(2) The Appellant is a Sunni Muslim.
(3) That the Appellant's wife was killed in February 2013 after being shot but that this was not a result of any connections he held to the Ba'ath Party or on account of his being a Sunni Muslim [see 29].
(4) His involvement with the Ba'ath Party was only when at university in the 1960s and that he had never attended any meetings or had any further involvement.
(5) The judge rejected his claim that his home had been attacked on 31st December 2014 and that this had been an attempt by the Shia militia [see 28].
(6) The judge rejected his claim that the death of his brother and wife and the attacks on his home had been due to his Sunni religion or his membership of the Ba'ath Party.
(7) The Appellant had been in contact with his neighbours via Viber (see evidence at [11(xiv)].
20. The current country guidance case relating to Iraq is AA (Article 15(c)) Iraq CG [2015] UKUT 544 (IAC). The decision was promulgated on 30th October 2015. The summary of that decision is set out in the head note which reads as follows:-

"COUNTRY GUIDANCE
Note: References to Iraq herein are to the territory of Iraq excluding the autonomous Iraqi Kurdish Region ("IKR") unless otherwise stated.
A. INDISCRIMINATE VIOLENCE IN IRAQ: ARTICLE 15(C) OF THE QUALIFICATION DIRECTIVE
1. There is at present a state of internal armed conflict in certain parts of Iraq, involving government security forces, militias of various kinds, and the Islamist group known as ISIL. The intensity of this armed conflict in the so-called "contested areas", comprising the governorates of Anbar, Diyala, Kirkuk, (aka Ta'min), Ninewah and Salah Al-din, is such that, as a general matter, there are substantial grounds for believing that any civilian returned there, solely on account of his or her presence there, faces a real risk of being subjected to indiscriminate violence amounting to serious harm within the scope of Article 15(c) of the Qualification Directive.
2. The degree of armed conflict in certain parts of the "Baghdad Belts" (the urban environs around Baghdad City) is also of the intensity described in paragraph 1 above, thereby giving rise to a generalised Article 15(c) risk. The parts of the Baghdad Belts concerned are those forming the border between the Baghdad Governorate and the contested areas described in paragraph 1.
3. The degree of armed conflict in the remainder of Iraq (including Baghdad City) is not such as to give rise to indiscriminate violence amounting to such serious harm to civilians, irrespective of their individual characteristics, so as to engage Article 15(c).
4. In accordance with the principles set out in Elgafaji (C-465/07) and QD (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620, decision-makers in Iraqi cases should assess the individual characteristics of the person claiming humanitarian protection, in order to ascertain whether those characteristics are such as to put that person at real risk of Article 15(c) harm.
B. DOCUMENTATION AND FEASIBILITY OF RETURN (excluding IKR)
5. Return of former residents of the Iraqi Kurdish Region (IKR) will be to the IKR and all other Iraqis will be to Baghdad. The Iraqi authorities will allow an Iraqi national (P) in the United Kingdom to enter Iraq only if P is in possession of a current or expired Iraqi passport relating to P, or a laissez passer.
6. No Iraqi national will be returnable to Baghdad if not in possession of one of these documents.
7. In the light of the Court of Appeal's judgment in HF (Iraq) and Others v Secretary of State for the Home Department [2013] EWCA Civ 1276, an international protection claim made by P cannot succeed by reference to any alleged risk of harm arising from an absence of Iraqi identification documentation, if the Tribunal finds that P's return is not currently feasible, given what is known about the state of P's documentation.
C. POSITION ON DOCUMENTATION WHERE RETURN IS FEASIBLE
8. It will only be where the Tribunal is satisfied that the return of P to Iraq is feasible that the issue of alleged risk of harm arising from an absence of Iraqi identification documentation will require judicial determination.
9. Having a Civil Status Identity Document (CSID) is one of the ways in which it is possible for an Iraqi national in the United Kingdom to obtain a passport or a laissez passer. Where the Secretary of State proposes to remove P by means of a passport or laissez passer, she will be expected to demonstrate to the Tribunal what, if any, identification documentation led the Iraqi authorities to issue P with the passport or laissez passer (or to signal their intention to do so).
10. Where P is returned to Iraq on a laissez passer or expired passport, P will be at no risk of serious harm at the point of return by reason of not having a current passport or other current form of Iraqi identification document.
11. Where P's return to Iraq is found by the Tribunal to be feasible, it will generally be necessary to decide whether P has a CSID, or will be able to obtain one, reasonably soon after arrival in Iraq. A CSID is generally required in order for an Iraqi to access financial assistance from the authorities; employment; education; housing; and medical treatment. If P shows there are no family or other members likely to be able to provide means of support, P is in general likely to face a real risk of destitution, amounting to serious harm, if, by the time any funds provided to P by the Secretary of State or her agents to assist P's return have been exhausted, it is reasonably likely that P will still have no CSID.
12. Where return is feasible but P does not have a CSID, P should as a general matter be able to obtain one from the Civil Status Affairs Office for P's home Governorate, using an Iraqi passport (whether current or expired), if P has one. If P does not have such a passport, P's ability to obtain a CSID may depend on whether P knows the page and volume number of the book holding P's information (and that of P's family). P's ability to persuade the officials that P is the person named on the relevant page is likely to depend on whether P has family members or other individuals who are prepared to vouch for P.
13. P's ability to obtain a CSID is likely to be severely hampered if P is unable to go to the Civil Status Affairs Office of P's Governorate because it is in an area where Article 15(c) serious harm is occurring. As a result of the violence, alternative CSA Offices for Mosul, Anbar and Saluhaddin have been established in Baghdad and Kerbala. The evidence does not demonstrate that the "Central Archive", which exists in Baghdad, is in practice able to provide CSIDs to those in need of them. There is, however, a National Status Court in Baghdad, to which P could apply for formal recognition of identity. The precise operation of this court is, however, unclear.
D. INTERNAL RELOCATION WITHIN IRAQ (OTHER THAN THE IRAQI KURDISH REGION)
14. As a general matter, it will not be unreasonable or unduly harsh for a person from a contested area to relocate to Baghdad City or (subject to paragraph 2 above) the Baghdad Belts.
15. In assessing whether it would be unreasonable/unduly harsh for P to relocate to Baghdad, the following factors are, however, likely to be relevant:
(a) whether P has a CSID or will be able to obtain one (see Part C above);
(b) whether P can speak Arabic (those who cannot are less likely to find employment);
(c) whether P has family members or friends in Baghdad able to accommodate him;
(d) whether P is a lone female (women face greater difficulties than men in finding employment);
(e) whether P can find a sponsor to access a hotel room or rent accommodation;
(f) whether P is from a minority community;
(g) whether there is support available for P bearing in mind there is some evidence that returned failed asylum seekers are provided with the support generally given to IDPs.
16. There is not a real risk of an ordinary civilian travelling from Baghdad airport to the southern governorates, suffering serious harm en route to such governorates so as engage Article 15(c).
E. IRAQI KURDISH REGION
17. The Respondent will only return P to the IKR if P originates from the IKR and P's identity has been 'pre-cleared' with the IKR authorities. The authorities in the IKR do not require P to have an expired or current passport, or laissez passer.
18. The IKR is virtually violence free. There is no Article 15(c) risk to an ordinary civilian in the IKR.
19. A Kurd (K) who does not originate from the IKR can obtain entry for 10 days as a visitor and then renew this entry permission for a further 10 days. If K finds employment, K can remain for longer, although K will need to register with the authorities and provide details of the employer. There is no evidence that the IKR authorities pro-actively remove Kurds from the IKR whose permits have come to an end.
20. Whether K, if returned to Baghdad, can reasonably be expected to avoid any potential undue harshness in that city by travelling to the IKR, will be fact sensitive; and is likely to involve an assessment of (a) the practicality of travel from Baghdad to the IKR (such as to Irbil by air); (b)the likelihood of K's securing employment in the IKR; and (c) the availability of assistance from family and friends in the IKR.
21. As a general matter, a non-Kurd who is at real risk in a home area in Iraq is unlikely to be able to relocate to the IKR.
F. EXISTING COUNTRY GUIDANCE DECISIONS
22. This decision replaces all existing country guidance on Iraq."
21. The evidence concerning Baghdad City was considered by the Tribunal at paragraphs 118-146 of the decision. The Tribunal concluded at [26] that when viewed in the context of the size of the population of Baghdad City, they did not find that the level of civilian deaths and injuries there, even taken at its highest and allowing for the likelihood of under-reporting, to be indicative of the level of indiscriminate violence so as to engage Article 15(c). The Tribunal considered that a resident of Baghdad City could, of course, reduce still further the already small possibility of being caught up in an attack by avoiding those busy public places which the evidence suggests are one of the primary targets. At paragraph [27] the Tribunal accepted that the statistics as to the level of civilian deaths and injuries in Baghdad were not determinative of the issue and that a "more holistic approach was required". At paragraph [128] the Tribunal highlighted the difference in circumstances between those described as the "contested areas" and those prevailing in Baghdad. The Tribunal found that there were "significant differences" between those circumstances and cited the April 2015 CIG reports that despite the levels of violence in Baghdad, displacement there had remained low (around 60,000) for the majority of those displaced (40,000) moving within the governorate. This is in contrast to the high levels of population displacement away from the contested areas. At [29], the Tribunal considered that although displacement levels were clearly a relevant factor and taking the inclusive approach to a consideration of Article 15(c), the Tribunal were cautious about giving them undue prominence in the holistic assessment. They considered that the large amount of people from the contested areas moving to Baghdad City was "indicative of there being sufficiently less violence in Baghdad to make the arduous and upsetting process of fleeing ones home worthwhile."
22. At [130] the Tribunal considered that the nature of the conflict was very different as between the contested areas and Baghdad as were the circumstances of daily life between the two regions and that the nature of the conflict and the features of daily life in Baghdad both being relevant considerations in the Tribunal's determination of whether an Article 15(c) threshold has been met. As to the daily life in Baghdad the Tribunal cited the land info report of February 2005 that:-
"Daily life in Baghdad carries on in amidst of all the violent incidents. Somehow communications, transport, trade and industry and public business go on functioning, in spite of the many restrictions as a result of many years of misrule, corruption and poor security."
The Tribunal also found that it was relevant that the violence in Baghdad was largely generated by "asymmetrical warfare (i.e. sporadic terrorist attacks) rather than all-out fighting, such as to be seen in the contested areas."
23. The panel concluded at [132], having considered all of the evidence that they did not find that the level of violence in Baghdad City, or in the Baghdad governorate as a whole comes "even close to crossing the Article 15(c) threshold." As to those who could be considered as an "enhanced risk category" at [135] the Tribunal concluded that there was nothing that they had heard of seen that led them to conclude that either those without connections or Kurds in Baghdad are an "enhanced risk category" and at [136] the Tribunal stated as follows:-
"It is rightly not suggested that the evidence demonstrates that there is a real risk of Article 15(c) harm arising solely because a person is a Sunni or Shia civilian in Baghdad and we, in any event, conclude that it does not."
As to travel in Baghdad at [137] the Tribunal stated
"the evidence does not disclose, and neither was it suggested to us, that those returned to Iraq on an expired passport, or a laissez-passer, have any difficulties at the airport, or when travelling en route to Baghdad City, for reason of not having a current passport or other form of Iraqi identification document."
24. The areas known as the "Baghdad Belts" is set out at paragraphs 138 to 146 of the country guidance decision.
25. Relocation to Baghdad is considered by the Tribunal at paragraphs 151-170 and the conditions in Baghdad are summarised at paragraphs 188-203 of the Tribunal.
26. As set out in the decision of FA (Libya: art 15(c) (CG) [2016] UKUT 413, the intention behind the country guidance system is that frequently arising issues should be capable of being determined once only. The designation of a published judgment as country guidance therefore has the effect of removing the issues in question from the normal process of determination by evidence in an adversarial process. Consistency is assured, and time and resources are saved. Unless and until the guidance is set aside, the decision stands as the Tribunals approach that issue. The Tribunal went on to state at [8] that there may always be
"supplementary evidence, either confirming or undermining the conclusion reached in the Country Guidance decision; and there will often be subsequent evidence that either in itself should not be treated as requiring the issue to be determined again (because it is similar to evidence considered in the Country Guidance decision) or that it is met by other subsequent evidence to the opposite effect, rebalancing the issue as it were."
27. The Tribunal makes it plain that there is no intention that the guidance should be followed when the situation in the country concerned has changed substantially since the guidance was issued.
28. The question before this Tribunal is whether there have been any changes since October 2015 that are sufficient to render the guidance given in the decision of AA (Iraq) relating to Article 15(c) as not applicable.
29. The most recent evidence relied upon by the Appellant is set out in the report of Mr Joffe at paragraphs [24]-[34] of the report. At [24] it makes reference to the past circumstances and that compared with the crisis years of 2006 and 2007, security in Iraq had significantly improved up to June 2014. He refers to it recently having "undergone a severe decline once again" and refers to the years 2006 to 2007 as the process of ethnic cleansing in mixed Sunni and Shia areas of Iraq particularly in the capital Baghdad proceeded a pace and Al Qaeda in Iraq complicated the security situation in the Sunni dominated areas of the country such as the Anbar province and the towns around the capital Baghdad where the death rate was very high indeed. The report goes on to state that it was only when the American-lead "surge" in Baghdad in February 2008 and the events in Basra 2008 that the violence was reversed. At [25] Dr Joffe refers to the "improvement as being only relative". In other words he considered that there had been a dramatic decline in violence in the height of the ethnic cleansing and the Al Qaeda led campaign in 2006 and 2007 but that the actual level of violence is still unacceptably high especially in the Baghdad to Basra corridor. The report goes on at [25] to make reference to the circumstances in 2009 and 2010 and there had been upsurge in the early months of 2012 as a result of a growing crisis within the Iraqi government. The same pattern occurred in 2013 and was to be repeated in 2014 as a result of the legislative elections and the Sunni insurgency in the north of the country around Mosul. Dr Joffe then cites the general picture taken from the US State Department report of 2015. That report made reference to the sectarian violence by the actions of Da'esh (also known as the Islamic State of Iraq) which continue to divide the country and that "de-stabilising violence occurred throughout the year as government forces fought to liberate territory lost to Da'esh principally in Arab Sunni and some mixed ethno sectarian areas." It made reference to the severe human rights problems which were widespread with Da'esh committing the overwhelming number of serious human rights abuses, including attacks against civilians, especially Shia but also Sunnis who oppose Da'esh, members of other religious and ethnic minorities, women and children. It also recorded that
"terrorists committed the overwhelming number of serious human rights abuses with Da'esh members committing acts of violence on a mass scale, including killings by suicide bombings, improvised explosive devices, execution-style shootings, beheadings and other forms of execution."
30. At [26] Dr Joffe contrasted the statistics of 2013 when 9,851 civilians were said to have died and that in 2014 the Iraqi body count concluded that 20,169 civilians had died at [27]. He compared the statistics with the figures for 2014, 2015 and 2016 and recorded that Baghdad had the highest number of deaths, with 4,767 civilians recorded killed this year while Anbar had over 3,600 civilians killed, half of them (1,748) by the Iraqi military in daily airstrikes in and around Falluja. In the year from January 1st, 2015 to January 1st, 2016 a further 3,606 persons died in Baghdad from violent action. At [28] it made reference to the security in Iraq and that in 2015 it marked the year in which the Iraqi security forces began the process of recovering territory lost to ISIS in 2014 recording that in late January the Iraqi forces recovered control of Diyala governorate and Kurdish Peshmerga forces took control of the areas to the east and north of Mosul. At paragraph [29] it made reference to the retaliation by ISIS which included a suicide bomb in the Sadr City market in Baghdad in mid-August which killed at least 75 people but went on to state that
"the western coalition airstrikes on ISIS positions proved increasingly effective as did the presence of special forces alongside Iraqi army units and at the end of August 2015, the army recaptured control of the Turcoman centre of Amirli, thus marking the beginning of the definitive rolling back of the ISIS forces inside Iraq."
At [30] the report makes reference to the most striking change in 2016 in the security situation had been the fact that the Iraqi army, together with the Shia militias had been moving successfully against ISIS held territory.
At [31] Dr Joffe's opinion is that the upsurge in ISIS inspired bombings in Baghdad reflected a change in tactics as the movement lost control elsewhere referring to most of the victims as "Shia Muslims" and makes reference to a bombing in Karada at the start of July 2016. At [34] the expert makes reference to Iraq's problems and the amount of displaced persons including refugees from Syria.
31. Dr Joffe was asked to consider the issue of the risk of indiscriminate violence but at [43(i)] stated that the decision as to whether the levels of indiscriminate violence met the criteria of Article 15(c) was not one that he was competent to make but went on to state that the details in the report indicated that Shia on Sunni violence is a significant reality in Baghdad and that that, whilst directed against sectarian groups was entirely indiscriminate in terms of location and proximity.
32. Mr Brown on behalf of the Appellant relies upon the country materials set out in the bundle to which he has directed my attention. I have summarised those earlier in the determination when referring to the submissions of the parties.
33. The casualty figures set out at page 40 for May 2016 are given for the whole of Iraq and the general quotes are related to areas outside of Baghdad. However the casualties for Baghdad are recorded as 267 killed and 740 injured (see page 40). The material at pages 44 to 45 (the MSF, Iraq report dated 10th June 2016) is an article predominantly concerning the medical needs of the displaced population. The MSF have been providing medical care to the population of Baghdad since February 2015 having opened a primary healthcare centre with free outpatients and health consultations for the displaced population and for residents of Baghdad. It refers to Baghdad's housing 500,000 displaced people and referring to the lack of humanitarian action in Baghdad. It further sets out that Baghdad has been acutely affected by the conflict and that bombings and shootings are a daily occurrence and that people have become "desensitised to the violence". It also records:-
"Yet on the other hand despite the tragedy that surrounds you people retain a belief in the city and hold on to their hopes for the future. There is an incredible amount of resilience here."
This echoes that as set out by the Tribunal in AA (Iraq) when referring to Baghdad.
34. The article does not support the Appellant's case that the degree of armed conflict gives rise to indiscriminate violence sufficient to engage Article 15(c). It is a general article which concerns the provision of healthcare from the MSF and whilst it refers to daily shootings and bombings, none of that information is sourced or details given as to where it originates from. Furthermore, it refers to the circumstances of the displaced citizens and on the facts of this case, the Appellant is not a displaced person and would be returning to his home area where he retains links with his neighbours and with those with whom he is in touch.
35. The article at page 46 refers to risk of harm to children specifically making reference to abductions in Iraq. However the figures given are by reference to Iraq as a whole and are not specific to Baghdad or the area the Appellant would be likely to return to. The last report at [49] is specific to Baghdad and refers to the terrorist attack in July 2006 which is referred to in the report of Dr Joffe at paragraph [29].
36. Having considered the evidence as a whole relating to Baghdad, and the area in which it is said the Appellant will return, I do not consider that it has been demonstrated to have changed significantly from the evidence that was before the Upper Tribunal in AA (Iraq) whereby the level of violence did not cross the Article 15(c) threshold. Much of the evidence referred to by Dr Joffe was that considered by the Tribunal in AA (Iraq) and the statistics relied upon by Mr Brown while showing an increase, must be seen against the population as a whole in Baghdad even taking account of any under-reporting and does not demonstrate that there has been a level of indiscriminate violence to reach that threshold. As set out in the MSF report and in AA (Iraq), the daily life of Baghdad citizens continues despite the events that have occurred. As set out in the MSF article and that of Dr Joffe, many displaced persons are returning to the Baghdad area compared with the other "contested areas". The evidence also confirms that the recent violence referred to (bombings) is generated by terrorist attacks (see the article which refers to July 2016 bomb, and the terrorist attacks referred to in Dr Joffe's report) rather than fighting which has been seen in the contested areas.
37. When looking at the Appellant's profile, he does not fall within any of the enhanced risk categories. The evidence taken as a whole does not demonstrate that there is a real risk of Article 15(c) harm arising solely from whether he is a Sunni or Shia Muslim. The conditions in Baghdad for those who are displaced are different however the evidence does refer to organisations operating within Baghdad to provide assistance to those who are displaced. On the facts of this particular case, the Appellant is not however reasonably likely to form part of the displaced population nor would he be viewed as such, as he maintains his links to Baghdad and has remaining friendships in Baghdad. The evidence before the First-tier Tribunal which has been preserved was that he was in touch with his friends and neighbours. In the witness statement at paragraph 2 he made reference to being contacted by his neighbour whom it is said he had stayed in contact with since he had left Iraq and that they had spoken on the telephone and via Viber and that he had many friends in his area and he would also contact them by telephone.
38. The Appellant is an Arabic speaking male with family connections to Baghdad. The Appellant does have a young daughter and this is a factor which must be taken into account, however as an Arab speaking male with continuing connections to Baghdad it could not be said that they would be returning as displaced persons.
39. No submissions had been advanced as to any practical problems relating to entry to Baghdad, however in the light of the documentation currently held by the Appellant (ID card and nationality registration) it has not been demonstrated that this would create any difficulties for the Appellant.
40. Consequently the evidence taken as a whole does not demonstrate that there has been any change of significance to demonstrate that the circumstances in Baghdad cross the threshold of severity for demonstrating a real risk of Article 15(c) harm.
41. The issue identified by the Upper Tribunal on remaking the decision was whether the Appellant and his daughter would be at risk of serious harm on account of their religion as Sunni Muslims. In this respect the Appellant relies upon the report of Dr George in the first bundle at pages 25 to 83. The report is dated 18th March 2015 and therefore the country information relied upon is similar to that set out in the decision of AA (Iraq) which was heard in May 2015. The report sets out the history of central and southern Iraq at paragraphs 37 to 65 and that between 2006 and 2007 Iraq was engulfed in a civil war between its Sunni and Shia communities with various communities consolidating within districts in which they were the majority. In February 2007 there was a gradual build-up of US forces in Baghdad known as the "surge". The history goes on to consider the events in 2011 and the final US withdrawal (paragraphs 54 to 55) and the period between 2013 and 2014 with an upsurge of violence reflecting in terms of occasion of Sunni-Shia sectarian events. The report includes figures for casualties in 2014 at [63] which he refers to as the worse year in Iraq since 2008.
42. Dr George considers the risks as a Sunni Muslim at paragraph 109. He makes reference to the UNHCR eligibility guidance given in the year 2012 at paragraph [11] which records the following:-
"To date, most of Baghdad's formerly mixed neighbourhoods remain largely homogenised, preventing many from returning to their former areas of residence. In only a few neighbourhoods of Baghdad do members of both sects live side-by-side. Most returnees have returned to areas under the control of their own community. The recent political crisis, combined with a series of attacks by Sunni armed groups targeting Shiite neighbourhoods and pilgrims, has deepened sectarian tensions. Anecdotal evidence from the UNHCR protection monitoring activities suggest that some Sunnis are leaving mixed and predominantly Shiite neighbourhoods in Baghdad fearing retaliation. Both Sunnis and Shiites living in or returning to areas in which they would constitute a minority may be exposed to targeted violence on account of their religious identity. Both Shiites in Sunni dominated neighbours and Sunnis in Shiite dominated neighbourhoods have reportedly been subjected to threatening letters demanding that they vacate their homes. In cases where individuals do not comply there are reports of violence or harassment including killings."
This evidence confirms the position of the Appellant and his circumstances in which he would be returning to an area which is predominantly Sunni.
43. At paragraph 114 onwards, the report is not specific to Baghdad but the reports relate to Iraq generally, for example, at paragraph 115 it refers to Diyala province and at paragraph 116 to Basra.
44. The conclusions at paragraph 118 is that he would be at risk in Iraq on account of his Sunni religio-political identity. However he identifies the areas of risk as the Shia dominated south which it is not proposed that the Appellant or his daughter would return to and the mixed Sunni-Shia communities in central Iraq which again, are not the areas in which the applicant's home is located.
45. The report of Dr Joffe in the most up-to-date bundle makes reference to the risk to Sunni Muslims at paragraphs 21 to 22 and refers to the issue of where the Appellant lived in Baghdad. He highlights the importance of where he lived in view of the population distribution maps and that if he lived in the xxx district, he might well be under threat due to his religion whereas if he lived in the other identified district it would not apply as it is one of the very few districts in the capital that is still predominantly Sunni in population composition.
46. As set out earlier in the determination, this issue has been resolved and it is common ground that the Appellant lived in and would be returning to the district which is a Sunni dominated area.
47. The rest of the report summarises events of March 2015 to the present and the issue of relocation to other parts of Iraq (Mosul and parts of central Iraq) and whether there is indiscriminate violence in Iraq (which has already been summarised).
48. As to the risk of return to Baghdad the conclusions are set out at [43]. In his view, there is a real risk to persons who are Sunni Muslims because of the growing antagonism between Sunni and Shias in Iraq and particularly in Baghdad. However the expert refers to the historic circumstances and the period of 2006 and 2008 and the eruption of ISIS within Iraq since 2014. He also identifies that the ISIS inspired attacks are not directed at the Sunni population but at the Shia community. He returns to the issue of the Appellant's home area but as I have set out, it is common ground that the Appellant would be living amongst one of the few majority Sunni areas in the city and therefore compared with the xxx area in which the expert suggests that the Appellant and his daughter would face very serious dangers, the report as a whole does not demonstrate that the Appellant, returning to his home area and the predominantly Sunni community would place him at a risk of serious harm. As set out in the preserved findings, the Appellant who had lived in Baghdad in excess of 30 years, had not been targeted as a result of his Sunni Muslim religion or on account of any link to the Ba'ath Party. The evidence that I have summarised, does not demonstrate that there is a reasonable likelihood that on return either he or his daughter will face the risk of serious harm arising from his religion and that there are currently large numbers of Sunni Muslims remaining in Baghdad in the areas identified by Dr Joffe as an area which provides safety for the community. The evidence that has been presented now does not undermine or change the decision in AA (Iraq) and the conclusion that they panel reached at [136].
49. It is also submitted on behalf of the Appellant by Mr Brown that the return of the Appellant and his daughter would be contrary to Article 3. He accepted that it was not a question of internal relocation because on the facts of this particular case the Appellant would be returning back to his own home area and therefore the issue of internal relocation and that of reasonableness of return in those circumstances simply does not arise. He therefore has advanced his submissions on the basis that given the finding of fact that had been made by the First-tier Tribunal that the Appellant's wife had been killed in February 2013 was such that it would have an impact upon the Appellant's young daughter having to return to that location. Whilst he does not submit now that that should be seen in terms of "undue harshness" he submits that it would be contrary to Article 3.
50. Article 3 of the ECHR states that:-
"No one should be subjected to torture or to inhuman or degrading treatment or punishment."
The Strasbourg courts approach to Article 3 in general is that Article 3 requires a "minimum level of severity" to engage Article 3. "Inhuman" treatment is conduct that causes sufficient mental and/or physical suffering to attain the minimum standard of severity (see Ireland v The UK [1978] 2 EHRR 25 at [162]). "Degrading" treatment is conduct which arouses feelings of fear, anguish and inferiority such as to humiliate or debase the individual (see Ireland at [167]). Again that must reach a minimum level of severity to engage Article 3. The assessment is relative and depends upon an assessment of all factors including the duration of the treatment, its physical or mental effects and the age, sex and vulnerability and state of health of the individual (Ireland at [62]). Once established, the obligation under Article 3 is absolute (see Chahal v The UK [1996] 23 EHRR 413 and Saadi v Italy [2009] 49 EHRR 30). The submissions do not make reference to any evidence to support the view that a return of the Appellant's daughter would reach the minimum level of severity necessary for a breach of Article 3.
As set out above, the Strasbourg courts approach to Article 3 in general requires there to be evidence upon which to make such an assessment. As Mr Bates submits, there has been no evidence provided that goes directly to this issue either in the form of any medical evidence as to the effects of an return to the area or any report, statement or evidence which makes reference to her current circumstances and the effect of the events in 2013 or a change from her current circumstances in the UK. Whilst Mr Brown submits it is not necessary for a medical report, it seems to me that any analysis or assessment that takes place must be evidence-based and in this case there has been a none advanced on behalf of the Appellant. As recorded by the First-tier Tribunal, the killing of the Appellant's wife was a tragic event much deserving of compassion. But even taking it at its highest, there has been no evidence beyond that to support the conclusion that a return in those circumstances would reach a minimum level of severity to engage Article 3.
I accept the submission from both advocates that the situation in Iraq is ever changing and most recently, the evidence referred to ISIS being driven out of areas in Iraq, around Mosul, by the Iraqi security forces alongside the Kurdish forces. However having considered the evidence as a whole and for the reasons set out in the preceding paragraphs, I do not find that the evidence presented now is sufficient to displace the assessment of the Tribunal in the country guidance of AA (Iraq) and do not find that there is a level of indiscriminate violence in Baghdad sufficient to cross the threshold of severity to constitute a breach of Article 15(c). Nor do I find for the reasons given that a return to Iraq would result in the Appellant being subjected to serious harm on account of his religion as a Sunni Muslim. Furthermore, I have not found that a return to Iraq for the Appellant and his daughter would be in breach of Article 3. Consequently the appeal is dismissed. The decision of the First-tier Tribunal is set aside; the decision is remade as follows.

Notice of Decision

The Appellant's appeal is dismissed on all grounds.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date

Upper Tribunal Judge Reeds