PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I voted with my colleagues in finding that there would be no violation of Article 3 of the Convention if the deportation order were implemented.

In my opinion, however, it was not necessary to discuss the merits of the application as it should have been declared inadmissible for failure to comply with the six-month rule.

Each of the applicants filed an asylum request. When the Migration Board rejected their requests, it decided at the same time that the applicants had to be deported to Iraq (or to another country willing to receive them). The risk of ill-treatment that the applicants allegedly run stems from the deportation orders. These orders became enforceable when the Migration Court of Appeal decided, on 4 September 2009, to refuse leave to appeal against the Migration Court’s judgment upholding the rejection of the asylum requests. In my opinion, the Government were right in arguing that the six-month time-limit started to run from that date. As a result, the application, which was lodged on 3 September 2010, should have been declared inadmissible.

It is true that the Court rejected a similar objection raised by the same Government in two decisions of 29 May 2012, quoted in paragraph 40 of the judgment ( P.Z. and Others v. Sweden , no. 68194/10, and B.Z. v. Sweden , no. 74352/11; see also, implicitly, as indicated by the applicants, N. v. Sweden , no. 23505/09, §§ 1, 14 and 39, 20 July 2010). With all due respect, however, I must confess that I am not convinced by the reasoning in those decisions. In particular, while I agree that the (actual, not potential) responsibility of a sending State under Article 3 of the Convention is “incurred only at the time when the measure is taken to remove the individual concerned”, I do not see why it follows from this that the six ‑ month period for lodging an application with the Court does not start to run until the actual deportation. It may well be that the sending State does not immediately enforce an enforceable deportation order, for a variety of imaginable reasons, and thus tolerates a person remaining for some time in the country. As long as this tolerance exists, the alleged violation is only a potential one. However, the person concerned can already complain about such a potential violation. I do not see why a person making use of that possibility should not respect the six-month rule. It would seem to me that the six-month period in such a situation starts to run from the moment when the decision that gives rise to the alleged potential violation becomes final, that is, from the moment when the deportation order becomes enforceable.

In the present case the applicants lodged their application after their request for re-examination of the matter was rejected by the Migration Board (on 9 March 2010) and after that decision was upheld by the Migration Court (on 16 June 2010) (see paragraphs 12-13). I note incidentally that they did not appeal against the latter judgment, but will not draw any conclusions from this. The question arises whether a new period of six months started to run from the date of delivery of the judgment of the Migration Court.

According to the relevant provisions of domestic law, the Migration Board will decide to re-examine the matter if new circumstances are invoked by the alien. If that does not apply, as was found in the case of the applicants, the Migration Board will not re-examine the matter (see Chapter 12, Section 19, of the Aliens Act, quoted in paragraph 18).

In my opinion, the rejection of a request for re-examination based on new circumstances does not cause a new six-month period to start to run, at least not in respect of the circumstances already invoked in the initial proceedings. In the present case, the applicants complain about a potential violation of Article 3 of the Convention on the basis of circumstances invoked in the initial proceedings, which ended with the Migration Court of Appeal’s decision of 4 September 2009. In these circumstances it does not seem to me that their attempt to obtain a re-examination of their case brings their application, lodged on 3 September 2010, within the six-month time ‑ limit.

DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ

This important lead judgment concerns the application of the Court’s jurisprudence on internal flight relocation to the forced return of a specific category of failed asylum seekers to Iraq. More particularly, it raises the question as to the quality of the guarantees that must be in place before such persons may be deported back to their country of origin. There is a critical lacuna in the majority’s judgment that prevents me from joining them in finding that the implementation of deportation orders made in respect of the applicants would not give rise to a violation under Article 3 of the Convention.

The applicants are not just failed asylum seekers being returned to a country from which they have fled because of the dangers of war. They are persons who belong to a particular group that is, specifically, targeted in their home country because they exercise their fundamental right to freedom of religion and belief.

In F.H. v. Sweden I disagreed with the majority’s view that the general situation in Iraq, as of 2009, was not so serious as to prevent forcible expulsion. At that time, I gave significant weight to the view of the UNHCR that Iraqis were to be presumed to have international protection needs and that they should be considered to be refugees ‘on a prima facie basis’.

It is clear that matters have moved forward since that date. On 21 May 2012 the UNHCR issued new Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq [2] . That Agency has modified its position since 2009 and its current recommendation is that all claims be assessed on their individual merits, on a case-by-case basis, and in the light of up to date information. [3]

There are two aspects of the 2012 Guidelines that are of particular relevance in the instant case. The first is that Iraqi asylum seekers with certain profiles and depending on their particular circumstances “ are likely to be in need of international refugee protection ”. [4] Such profiles include “individuals with religion based claims” and “certain professionals”. [5] The second is the UNHCR’s view that internal flight options are “ often not available in Iraq ” due to serious risks faced by Iraqis throughout the country, including, threats to safety and security, accessibility problems and lack of livelihood opportunities.

Notwithstanding the fact that, as of late, the general situation in Iraq is deteriorating steadily, [6] I can agree with the majority that, in principle, it is not of sufficient gravity, in itself, to prevent the return of failed asylum seekers to Iraq (§ 57).

Further, and notwithstanding the fact that attacks and violence against Christians have increased since October 2010 resulting in their massive displacement within Iraq, [7] I can also accept that, in principle, the alternative relocation and settlement of Christians within the Kurdish Region, would not, in itself, violate Article 3.

My disagreement with the majority lies in its application of the Court’s jurisprudence on internal flight relocation to the facts of the instant case. More particularly, I cannot overlook its failure to test whether the necessary guarantees required by the Court are de facto in place prior to the applicants’ forced return to Iraq.

The Court’s case-law on internal flight relocation is clear. The relevant principles are articulated in Salah Sheek v. the Netherlands [8] and have been confirmed, more recently, in Sufi and Elmi v. the United Kingdom . [9] The Court considers that, as a precondition for relying on an internal flight alternative, certain guarantees have to be in place. These include: (i) that the person to be expelled must be able to travel safely to the area concerned; (ii) that the person concerned must be able to gain admittance to the area concerned; and (iii) that the person concerned must be able to settle in the area concerned.

To require that ‘guarantees’ are in place before deportations on the basis of an internal flight option can proceed is to set a high threshold of evidence in terms of the returnee’s future safety. Likelihoods, chances or positive indications are not enough. This is rightly so given the seriousness of what is at issue in sanctioning the forced return of persons with an unquestionable history of persecution in their home country to a different region thereof. It is entirely appropriate that the Court has set the bar at the level of ‘guarantee’. Safe transit to, actual admittance into and the ability to settle within the relocated area must be ‘guaranteed’ as a precondition for reliance upon internal flight options.

Furthermore, such guarantees must be in place at the point when the assessment of risk under Article 3 is being made by the Court. [10] If they are not, then an issue under Article 3 may arise, “ the more so if in the absence of such guarantees there is a possibility of the expellee ending up in a part of the country of origin where he or she may be subjected to ill-treatment ”. [11]

Having identified the necessary guarantees, the Court in Salah Sheekh and Sufi and Elmi went on to test whether they were, in fact, established in each case. Thus, it considered, in detail, the risks involved in transit to the relatively ‘safe places’ of Somaliland and Puntland or other parts of central or southern Somalia. [12] It also examined the likelihood of the applicants being allowed or enabled to stay in the ‘safe territory’ [13] and it examined, specifically, the humanitarian conditions in the IDP camps in assessing a returnee’s ability to cater for his most basic needs, his vulnerability to ill-treatment and the prospects of his situation improving within a reasonable time. [14] Despite the positive indications of ‘relative safety’ relied upon by the Dutch and British governments, it was the absence of the requisite guarantees that led the Court in both cases to reject proposals to deport the applicants on the basis of internal flight options, finding that, to do so in the absence of such guarantees would violate Article 3.

The majority’s approach to the application of the relevant principles in the instant case stands in marked contrast to the Court’s approach in these earlier cases. In § 62 it recites the relevant principles and notes the guarantees that are required to be in place. Having done so, however, it fails to apply those principles by testing whether, in the circumstances of the instant case, the prerequisite guarantees are de facto in place.

On the required guarantee of ‘safe travel’, for example, there is no mention anywhere in the judgment as to how the Government proposes to have the applicants travel to the area concerned. A relevant question arises as to whether the Respondent State is required to arrange for deportation directly to the relocation area, or, alternatively, to send the applicants to a destination from where they can move to the safe area themselves without prohibitive risk or hardship. Since this question remains unaddressed and therefore unanswered in the judgment, there is no possibility for this Court to consider, as it did in Salah Sheekh and Sufi and Elmi , any of the risks involved in the applicants’ transit to the Kurdistan region.

A consideration of the transit risks is all the more important having regard to the recent escalation in violence in Iraq which comes one year after the UNHCR had already observed that:-

“In terms of access, roads between the Kurdistan Region and central Iraq cannot be considered safe. ... Roads that are not under the control of the Kurdish forces are unpredictable and have reportedly been the site of a high numbers (sic) of attacks. There are several official checkpoints between the central part of the country and the KRG-administered area. There are also random check points set up depending on the security situation. Further, the borders of the Kurdistan Region, including between its own governorates, have been observed to close without advance warning due to security concerns. Other areas along the unofficial border have been heavily mined in the past decade and are regularly patrolled by Kurdish Security Forces. Such conditions make it nearly impossible for persons to cross into the three northern governorates through the countryside without danger.”

The omission in the Judgment of any consideration of the means and routes to be deployed by the State in deporting the applicants to the Kurdistan Region means that the first prerequisite guarantee that the applicants can, in fact, travel safely to the area concerned has not been established.

As to the existence of the other necessary guarantees, I cannot but conclude that there remains some doubt as to whether they have been met in this case. In Salah Sheekh v. the Netherlands the Government had provided information that Somalis were free to enter and leave the country as State borders were subject to very few controls. The Court accepted that the Government may well succeed in removing the applicant to the relatively safe territory of either Somaliland or Puntland but it went on to observe that

“[T]his by no means constitutes a guarantee that the applicant, once there, will be allowed or enabled to stay in the territory, and with no monitoring of deported rejected asylum seekers taking place, the Government have no way of verifying whether or not the applicant succeeds in gaining admittance.”

I accept that Christians are regarded as not posing any terrorist threat to the Kurdish region and that, in general, there is an hospitable attitude adopted by the Kurdish authorities towards a considerable number of IDPs, including, Christians. However, one cannot fail to take cognisance of the UNHCR’s finding that:-

“The KRG authorities continue to implement stringent controls on the presence of persons not originating from the Kurdistan Region.” [15]

and that

“There are no official and publicly accessible regulations concerning procedures and practices at the entry checkpoints into the Kurdistan Region. An ad hoc and often inconsistent approach can be expected in terms of who is granted access, varying not only from governorate to governorate but also from checkpoint to checkpoint.” [16]

That being so and, in the absence of any reliable monitoring of the fate of deported rejected asylum seekers, there must remain some doubt as to whether the applicants will be ‘guaranteed’ admittance into the Kurdish Region given the myriad uncertainties that abound. Quite simply, there is no agreement in the reports relied upon by the majority on this and on a number of important issues that will, inevitably, affect the lives of the applicants.

Even if one could accept the likelihood that the applicants would gain admittance to the Kurdish Region, the Government has no way of verifying whether the applicants could remain and settle in this place. These doubts as to the requisite guarantees arise prior to any consideration of the humanitarian conditions in which the applicants will be expected to live. Clearly, they will face hardship and difficulty in accessing food rations, housing, education and employment. The recent influx of Syrian refuges into the northern area of Iraq cannot but exacerbate these problems.

It is, primarily, the absence of the requisite guarantee as to safe transit that prevents me from voting with the majority in this case although doubts as to the other necessary guarantees only serve to compound the problem. It falls to the Government to satisfy the Court that the applicants will not be at risk of treatment that violates Article 3 by reason of their decision to deport them back to Iraq. Absent any information as to how the applicants are to reach the Kurdish Region there is a critical lacuna in the majority’s judgment which needs to be addressed in order to ensure that internal flight relocation can, indeed, be used.

Consequently, whilst I do not exclude that, in principle, internal relocation alternatives for Iraqi Christians may raise no issue under Article 3, I am not satisfied that, in the instant case, the requisite guarantees that are required by the Court have been provided. Consequently, in my view, this case raises a serious question concerning the application of the Convention and, in particular, the quality of the guarantees that must exist as a precondition for a State’s reliance upon internal flight relocation as a means of circumventing the absolute nature of the prohibition contained in Article 3 of the Convention. This serious issue is one of general importance as it affects significant numbers of a vulnerable religious minority who are being forcibly returned to a country in which they are specifically targeted as the subjects of violent attack on the basis of their religious beliefs.

[1] Rectified on 3 December 2013: The conclusion should read "by a majority".

[2] On 21 May 2012 the UNHCR issued new Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq. These guidelines replaced the earlier 2009 Guidelines. They were prepared based on an analysis of up-to-date and relevant information from a wide variety of sources as of the 18 th of March 2012.

[3] 2012 Guidelines, page 6.

[4] Ibid.,23.

[5] Ibid.

[6] The UN figures showed that 1,045 civilians and security personnel were killed in May 2013. That surpassed the 712 killed in April, the deadliest month recorded since June 2008. http://www.guardian.co.uk/world/2013/jun/01/iraq-highest-monthly-death-toll-years .

[7] 2012 Guidelines, page 28.

[8] Salah Sheekh v. the Netherlands, no. 1948/04, §§ 141-142, 11 January 2007.

[9] Sufi and Elmi v. the United Kingdom , nos. 8319/07 and 11449/07, 28 June 2011.

[10] Salah Sheekh , § 136.

[11] Salah Sheekh , § 141 and Sufi and Elmi , § 266.

[12] Salah Sheekh , §§ 143-148 and Sufi and Elmi , § 266-296.

[13] Salah Sheekh , §§ 143.

[14] Sufi and Elmi, § 283.

[15] 2012 Guidelines, page 49.

[16] Ibid. page 50.