Shia/Sunni mixed marriages in Iraq and risk on return

EA (Sunni/Shi'a mixed marriages) Iraq CG [2011] UKUT 342 (IAC) (27 September 2011)

This Upper Tribunal case was heard on 6^th May 2011 at Field House. The facts of the case are as follows:

The appellant is an Iraqi male. He appealed against the decision of the Secretary of State for the Home Department (herein after referred to as the SSHD) seeking to remove him from the UK as an illegal migrant. At appeal, the immigration judge concluded that the appellant lacked credibility. The judge did however accept, that the appellant is a Shi’ite Muslim and that he is married to a Sunni Muslim. The judge did not accept that they faced a risk on return to Iraq on that basis. Their appeals were subsequently dismissed by the Tribunal. The appellant sought reconsideration which was granted and it was concluded that there had been a material error of law on the basis that the judge had failed to properly consider his religion and the impact of his mixed marriage.

The home office presenting officer argued that it was necessary to assess whether the appellant faced a real risk in the context of Article 15(c) of the Qualification Directive in his home area or in an area to which he could relocate. She argued that the appellant and his wife had not suffered problems in Iraq and that the appellant lacked credibility. The Tribunal was referred to the Associated Press Report of 7^th August 2009 which stated that mixed marriages were common and that it was clear from the Iraqi person’s name which sect they would belong to. The evidence demonstrated a lack of statistics of mixed marriages.

References were also made to several other reports including UNHCR reports and IDMC reports. The appellant’s brother had been killed but no one knew why except that it was a terrorist attack. It did not necessarily mean the appellant could have been killed as well. The SSHD argued that there was no real evidence that the appellants would be at risk due to their mixed marriage and there were also mixed areas where they could reside for instance, Baghdad. The SSHD argued that the appeal should be dismissed.

Similarly, the appellant’s representatives made reference to objective material arguing that the lack of direct evidence did not necessarily mean targeting had not happened. Reference was made to Samara bombings in 2006. The Tribunal was urged to consider the appellant’s history and the evidence in the bundle from 2006 which was direct evidence of violence towards mixed couple and couples being forced to separate. There was also a need to consider the historical perspective to mixed marriages and the appellant’s argued that the stability maintained by the US troops would deteriorate once they leave Iraq. It was argued that there would be a return to violence and that the appellant would be under ‘direct threat’. Reference was made to the appellant’s bundle containing objective evidence about sunni/shia hostility in Iraq. It was argued that the appeal should be allowed.

The Tribunal made reference to the case of HM & Others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC), a country guidance case. In that case, the court concluded that “the degree of indiscriminate violence characterising the current armed conflict taking place in Iraq is not at such a high level that substantial grounds had been shown for believing that any civilian returned there would, solely on account of his presence there, face a real risk of being subject to that threat”

The Tribunal also considered the recent Country of Origin Guidance Report of March 2011. Tribunal

held “It is in our view reasonable to conclude the situation has not changed materially since the publication of the country guidance in HM as regards the general levels of violence in Iraq.  Clearly there has been an improvement since 2006/2007, but equally significant problems remain and there are particularly categories of people, which we have set out above, who are at especial risk”.

The Tribunal’s Conclusion

The Tribunal ultimately dismissed the appeal stating that the appellant had lived in the Baghdad area. It was reasonable to expect him and his wife to go back to live there given that there was a mix of Shia and Sunni areas in Baghdad and in light of the level of improvement there. Reference was made to the numerous reports and objective material in the case.

The Tribunal concluded that:

(1) In general there is not a real risk of persecution or other significant harm to parties to a Sunni/Shi’a marriage in Iraq.

(2) It may, however, be shown that there are enhanced risks, crossing the relevant risk thresholds, in rural and tribal areas, and in areas where though a Sunni man may marry a Shi’a woman without risk, the converse may not pertain.

(3) Even if an appellant is able to demonstrate risk in his/her home area, in general it will be feasible for relocation to be effected, either to an area in a city such a Baghdad, where mixed Sunni and Shi’a families live together, or to the Kurdistan region.

4^th October 2011