Monday, 15 July 2013

Asylum Seekers from Iraq Judgments

It is my pleasure to introduce another guest post on the blog, by expert colleague on migration law, Maarten den Heijer, on the European Court's recent Iraq asylum cases:

Court: Christian asylum seekers from Iraq can internally relocate
Maarten den Heijer, assistant professor of international law, University of Amsterdam

With summer recess closing in, the Court gave judgment in no less than eight asylum cases brought against Sweden, all concerning the deportation of failed asylum seekers to Iraq (see the press release summarizing all judgments). In all cases, the Court concludes that expulsion would not violate Article 3 of the Convention (the prohibition of inhuman treatment). Since Iraq continues to be one of the main countries of origin of asylum seekers in the EU, the judgments give valuable guidance for asylum authorities across Europe. They signify, in particular, that the general level of violence in Iraq is – despite the widely reported increase of sectarian violence in the last few months – of insufficient magnitude to indicate a need for protection. And although particularly vulnerable groups such as religious minorities may face a real risk of inhuman treatment upon return, they can have recourse to an internal protection alternative. The latter conclusion may be expected to have considerable ramifications, given the high number of Christian asylum seekers from Iraq in various European countries.

Two of the judgments deal with asylum seekers who argued to be the victim of honour-related crimes. The other six judgments concern members of the Christian minority alleging persecution on the basis of their religion.

In respect of the two honour-crime complaints (the cases of D.N.M. and S.A.), the Court observes that the Iraqi authorities provide insufficient protection against honour-related crimes, noting the high level of social acceptance of this crime in Iraq. However, since the danger emanates from relatives, the Court considers that both applicants can relocate to other regions in Iraq, where family members have no means and connections to find them. In examining the existence of an internal flight alternative, the Court employs the criteria developed in its previous case law (see esp. Sufi and Elmi v the UK), i.e. whether there is a real risk of harm in the other region; whether the person can gain admittance to that region; and whether the general circumstances prevailing in that part allow for a living in relative safety. These criteria correspond to those laid down in Article 8 of EU Qualification Directive 2011/95/EU.

The six other judgments follow up on F.H. v Sweden of 2009, also concerning a Christian from Iraq. In that case, the Court found that there was no State-sanctioned persecution of Christians and that the applicant would be able to seek the protection of the Iraqi authorities if he felt threatened and that the authorities would be willing and in a position to help him. The Court now adopts a different line of reasoning – in all six judgments. It notes that compared to 2008/09, violence against Christians has escalated in Iraq and refers to country assessments indicating that authorities in southern and central Iraq are generally unable to protect Christians and other religious minorities. The Court avoids determining however whether return to these regions would put Christians at a real risk of harm, because it considers that the rights of Christians are generally respected in the three northern governorates (Iraqi Kurdistan), which are relatively safe. The Court extensively examines the possibilities of Christians to relocate there and observes that there are no practical obstacles in that respect.

That the Court accepts a relocation possibility is especially relevant for countries such as the Netherlands, which considers Iraqi Christians to constitute a particularly vulnerable group (lowering their burden of proof for establishing a real risk of harm) for whom no internal relocation alternative exists.

All eight judgments were adopted by the same Chamber and with a voting ratio of five to two. The two dissenting judges Power-Forde and Zupancic question in particular the practical availability of an internal relocation alternative. They note that, whereas in the cases of Salah Sheekh v the Netherlands and Sufi and Elmi the Court spoke of ‘guarantees’ in the sphere of admittance and settlement in the relevant area, the majority now appears to lower the threshold by merely examining the likelihood of safe transit and gaining admittance. The dissenters argue that it follows from previous case law that governments must procure such guarantees before removal is executed, which did not happen in the present cases.

A further peculiarity is that the Court did not decide to join these cases, as provided for under Rule 42 of the Rules of Court. Given the factual similarities and indeed the textually identical rehearsal of general principles, the position of Christians in Iraq and the relocation alternative, one might have expected that the Court would at least have joined the two honor-crime complaints and the six complaints concerning Christians. For those who want to go into detail without having to read them all: M.Y.H. v Sweden was presented as the lead judgment (in the Christian cases).

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