Cumulative Risk Assessment in Asylum Claims: BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC)

Introduction

The case of BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC) revolves around an Iraqi national seeking asylum in the United Kingdom. The appellant, referred to as BA, previously worked as an assistant auditor for an international auditing company in Baghdad from 2003 to 2006. Following the deterioration of the security situation in Baghdad, BA was transferred to the UK for training. Upon the termination of his contract in 2009, BA claimed asylum, citing fears of persecution upon return to Baghdad. The key issues in this case pertain to the assessment of risks based on individual and cumulative factors under the Refugee Convention, the Qualification Directive, and the European Convention on Human Rights (ECHR).

Summary of the Judgment

The Upper Tribunal, Immigration and Asylum Chamber, reviewed BA's appeal against the Secretary of State's decision to refuse his asylum claim. The Tribunal focused on whether BA faced a real risk of serious harm if returned to Baghdad. While individual risk factors such as his past employment, Sunni identity, and potential for kidnapping were considered insufficient on their own to establish a real risk, the Tribunal adopted a holistic approach. By assessing these factors cumulatively, the Tribunal concluded that BA did face a real risk of serious harm, thereby allowing his appeal.

Analysis

Precedents Cited

The judgment extensively references prior cases and country guidance documents to frame its analysis:

NS (Iraq: perceived collaborator: relocation) CG [2007] – Established that individuals perceived as collaborators with foreign forces face real risks upon return, necessitating a case-by-case assessment for internal relocation.
AA (Article 15(c)) Iraq CG [2015] – Updated country guidance considering the evolving security landscape in Iraq, emphasizing the shift in conflict dynamics and the importance of individual characteristics in risk assessment.
Elgafaji v Staatsssecretaris van Justitie [2009] and MOJ & Others (Return to Mogadishu) Somalia CG [2014] – European Court of Justice decisions highlighting the "sliding scale" approach in assessing risk based on individual circumstances.
JK and Others v Sweden (Application no. 59166/12) – An ECtHR case referenced to understand the sufficiency of protection and authority capability in the respondent state.

These precedents collectively underscore the necessity of evaluating both general conditions and individual factors to ascertain the real risk of harm.

Legal Reasoning

The Tribunal employed a multi-faceted legal reasoning approach:

Holistic Assessment: Acknowledging that while individual risk factors may not independently establish a real risk, their cumulative effect can be significant in meeting the threshold for asylum.
Country Guidance Alignment: Aligning findings with existing country guidance documents, ensuring consistency in the application of legal standards.
Empirical Limitations Consideration: Recognizing the challenges in obtaining precise data on violence and persecution in Baghdad, thus relying on expert testimonies and reputable sources to form a coherent assessment.
Sufficiency of Protection: Determining that Iraqi authorities, particularly in Baghdad, lack the capacity and willingness to provide adequate protection to Sunni individuals, thereby exacerbating the risk factors.
Application of EU Law: Incorporating principles from EU jurisprudence, such as the "sliding scale" in Elgafaji, to evaluate the extent to which individual characteristics can elevate risk assessments.

The Tribunal concluded that when various risk factors are considered together, BA's fear of persecution is well-founded and meets the legal criteria for asylum.

Impact

The judgment has significant implications for future asylum claims, particularly in contexts where multiple, individually insufficient risk factors may collectively demonstrate a real risk of harm. It reinforces the necessity for Tribunals and courts to adopt a comprehensive approach, considering the interplay of various elements affecting an individual's safety upon return. This holistic methodology may influence the development of country guidance and the evaluation of protection claims across similar geopolitical scenarios.

Complex Concepts Simplified

Real Risk of Serious Harm

A real risk of serious harm refers to the likelihood that an individual will face significant physical injury or death upon return to their home country. This assessment considers both general conditions in the country and the individual's specific circumstances.

Cumulative Risk Assessment

A cumulative risk assessment involves evaluating multiple risk factors together to determine if their combined effect creates a real risk of serious harm, even if each factor alone is insufficient to meet the threshold.

Article 15(c) of the Qualification Directive

This article pertains to Humanitarian Protection, providing protection to individuals who do not qualify as refugees but still face serious harm if returned to their home country.

Sliding Scale Concept

The sliding scale approach allows for flexibility in risk assessment, recognizing that increased individual risk factors can lower the threshold of general conditions required to establish a real risk.

Conclusion

The judgment in BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC) underscores the critical importance of a holistic approach in asylum claims. By allowing the cumulative assessment of various risk factors, the Tribunal acknowledges the complex realities faced by individuals in conflict zones like Baghdad. This case sets a precedent for evaluating protection claims where multiple, interrelated risks collectively affirm the necessity for asylum, thereby shaping future legal interpretations and policies in the realm of international protection.