DISSENTING OPINION OF JUDGE POWER-FORDE JOINED BY JUDGE ZUPANČIČ

My reason for being unable to accept the majority ’ s conclusion in this case is based upon the cumulative weight of a number of factors that come into focus when assessing the risk of treatment prohibited by Articles 2 and 3 of the Convention.

Since January 2007 the applicant worked for the biggest security company in Iraq with connections to the US military. Civilians (formerly) employed or otherwise affiliated with the former multinational forces and/or US forces in Iraq, as well as their families, are at risk of being targeted by non-State actors. The UNHCR concludes that such individuals associated with or perceived to have been associated with supporting the US forces in Iraq are, depending on the circumstances, likely to be in need of international refugee protection on account of their (imputed) political opinion. [1] The applicant (whose general credibility was not questioned by the domestic authorities) has already been the subject of threats, including, threats upon his life, whilst living and working in Iraq. These threats, he claims, were related directly to his association with the US forces. His home was targeted, specifically, and destroyed and his wife and son were assaulted after his departure from Iraq. The applicant ’ s profile thus places him within a specific risk category of Iraqi asylum seekers.

In addition to this risk factor, regard must be had to the serious decline in the general situation in Iraq today. The majority, whilst noting the existence of the indiscriminate and deadly violence, nevertheless, considers that ‘ the overall situation has been slowly improving since the peak in violence in 2007 ’ ( § 39) and it sees no reason to depart from the position it took over four years ago in F.H. v Sweden (no. 32621/06). I cannot share this perspective. It has been reported that 2013 has, thus far, been the deadliest year in Iraq since 2008. [2] The Interior Ministry has put the death toll for the month of November alone at 1,121 and the number of people injured at 1,349. Thus, even if one were to accept that the general situation in Iraq is not to be regarded as being sufficiently serious as to cause by itself a violation of Article 3 of the Convention in the event of an individual ’ s forcible return thereto, the significant escalation in violence this year is, nevertheless, of sufficient seriousness as to weigh heavily in the balance when assessing, cumulatively, any risk of exposure to treatment that would violate Article 3 of the Convention.

Having raised no serious issue as the applicant ’ s credibility, [3] it is, to my mind, somewhat questionable as to whether the reasons given by the migration authorities in rejecting the applicant ’ s claim for asylum are sufficiently robust as to meet the level of ‘ rigorous ’ assessment required under Articles 2 or 3 of the Convention ( Chahal v United Kingdom judgment of 15 November 1996, Reports 1996-V, § 96). For example, the Migration Board found it ‘ peculiar ’ that the applicant only received threats in 2007 four years after he had started working with security companies and thereby cooperating with the American troops ( § 9). However, it is clear from the judgment ( § 8) that the applicant ’ s work with the company that actually had ‘ connections to the US military ’ had only commenced in 2007 (the year in which threats were received) and not in 2003. Another reason for the rejection of the applicant ’ s claim was his inability to identify his attackers or to state who the ‘ visitors ’ to his house were or why they had carried out the attacks ( §§ 9, 12) . How, precisely, are victims of targeted violence supposed to ‘ identify ’ those who terrorize them in arbitrary and unpredictable attacks? To be required to meet such an onerous test is to impose upon a person fleeing persecution an unreasonable and disproportionate burden. Further, while the Migration Court accepted that the applicant and his family had been assaulted in Iraq, it rejected his appeal, nevertheless, because it considered, inter alia , that the applicant failed to show that there was any connection between the various incidents and thus no remaining threat against him in the event of his return ( §12) . The applicant ’ s entire claim, however, is based upon the fact that there is, indeed, a connection between the various incidents in that they were all forms of retaliation against him for his imputed collaboration with the US military. That submission is plausible. That such attacks occur precisely because of perceived cooperation with foreign forces is confirmed by international observers. [4]

The Respondent State points to a discrepancy between the applicant ’ s initial claim and the contents of certain documents adduced later in the proceedings ( § 44) . The applicant cannot be blamed for what his brother said to the men who arrived at the applicant ’ s former home after he had fled to Sweden. The majority, to my mind, accords too much weight to this alleged discrepancy and too little weight to the overall credibility of the applicant - a credibility which those who interviewed him found no reason to question. [5] The general reliability of the applicant ’ s account when taken together with his specific risk profile and viewed in the light of the deteriorating security situation in Iraq, lead me to conclude that the applicant would face a real risk of being subjected to treatment contrary to Article 2 or 3 of the Convention should the Respondent State return him to Iraq at this time.

[1] UNHCR ( 21 May 2012 ) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq , at page 14 and following .  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.   Various news reports confirm that the general security situation in Iraq has deteriorated since then.

[2] See, for example, http://rt.com/news/Iraq and various other news agencies.

[3] See § 28 of the Government’s Observations dated 19 March, 2012.   

[4] See UNHCR ( 21 May 2012 ) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Iraq , at page 14 and following .

[5] See §§ 28 and 32 of the Government’s Observations dated 19 March, 2012.