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--Updated 23 August, 2016

  News & Views Monday 22nd August to Sunday 28th August 2016  
Security Situation in Iraq Entails A Real Risk If Applicants Returned

Grand Chamber Judgment: J.K. and Others v. Sweden

General deterioration of security situation in Iraq entails a real risk for the applicants if returned to their country of origin

In today’s Grand Chamber judgment1 in the case of J.K. and Others v. Sweden (application no. 59166/12) the European Court of Human Rights held, by ten votes to seven, that there would be:

a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights if the order for the applicants’ deportation to Iraq were implemented.

The case concerned three Iraqi nationals who had sought asylum in Sweden and whose deportation
to Iraq had been ordered.

Accepting that the general security situation in Iraq did not as such prevent the removal of Mr J.K. and his wife and son, the Court had to assess whether their personal circumstances were such that they would face a real risk of treatment contrary to Article 3 if expelled to Iraq.

The Court noted that the applicants’ account of events was generally coherent, credible and consistent with relevant country-of-origin information available from reliable and objective sources. Given that the applicants had been subjected to ill-treatment by al-Qaeda, the Court found that there was a strong indication that they would continue to be at risk from non-State actors in Iraq. Mr J.K. belonged to a group of persons who were systematically targeted because of their relationship with the American armed forces, and it was established that he had been ill-treated until 2008.

The Court observed that the situation in Iraq had clearly deteriorated since 2011 and 2012, when the Migration Agency and the Migration Court respectively had assessed the situation and the latter had concluded that the Iraqi law-enforcement authorities were likely to be both willing and able to offer the necessary protection to those seeking it.

Against a background of a generally deteriorating security situation, marked by an increase in sectarian violence and attacks and advances by ISIS, large areas of the territory were outside the Iraqi Government’s effective control. In the light of the complex and volatile general security situation, the Court found that the Iraqi authorities’ capacity to protect citizens had to be regarded as diminished. Although the current level of protection might still be sufficient for the general public in Iraq, the situation was different for individuals belonging to a targeted group. The cumulative effect of the applicants’ personal circumstances and the Iraqi authorities’ diminished ability to protect them had to be considered to create a real risk of ill-treatment in the event of their return to Iraq.

Read the full press briefing:

Read the full judgment:

Australia to Close Manus Island Asylum Centre

Australia has agreed to close a controversial asylum seeker detention centre in Papua New Guinea (PNG). PNG Prime Minister Peter O'Neill said in a statement he had met Australia's immigration minister, Peter Dutton, in Port Moresby on Wednesday. "Both PNG and Australia are in agreement that [Manus Island] centre is to be closed," the statement said.  PNG's Supreme Court found in April that detaining asylum seekers and refugees at the centre was unconstitutional.  Mr O'Neill said the Manus Regional Processing Centre, which currently houses 854 men, would not close immediately.

Rea more: BBC News,

UKHO: Asylum Policy instruction - Sexual Orientation in Asylum Claims

This guidance tells you about the consideration and management of asylum claims made on the basis of sexual orientation. It provides specific guidance on:

- how to consider asylum claims made on the basis of sexual orientation at both the screening and substantive asylum interviews

-  the additional considerations decision-makers should have in mind when assessing asylum claims that could include issues to do with sexual orientation

- how to take sexual orientation issues into account when looking at the persecution experienced and whether there has been a failure of state protection

- how to objectively consider future fear within the legal, political and social context of the country of origin

Purpose of instruction

 This instruction explains how caseworkers should consider claims made on the basis of sexual orientation. This is to make sure that the relevant information is obtained in order to make a balanced decision so that we grant protection to those who face persecution because of their sexuality and refuse protection to those who do not. In all interviews, caseworkers as representatives of the Home Office are expected to maintain high professional standards and treat claimants with respect and sensitivity throughout.

 This instruction must be read in conjunction with the main asylum policy instructions, in particular:

 Asylum interviews

Assessing credibility and refugee status

Considering and deciding a claim

Gender issues in the asylum claim

Gender identity issues in the asylum claim

 This instruction applies to all Home Office staff who interview and consider asylum claims brought on grounds of sexual orientation.

 Published for Home Office staff on 3rd August 2016

 Published on Refworld, 19/08/2016