DISSENTING OPINION OF JUDGE POWER-FORDE

For the reasons set out in my opinion in the case of M.Y.H. and Others v. Sweden (no. 50859/10, 27 June 2013), I voted against the majority view that Article 3 would not be breached in the event that the deportation order made in respect of the applicant were executed.

The Court accepts that the applicant, in this case, may face a risk of retaliation and treatment contrary to Article 3 from his relatives if he were to be returned to certain parts of Iraq, particularly, Baghdad and Diyala ( § 42) and a possible relocation to Anbar governorate is considered.

My dissent is based on the failure of the majority to test whether the requisite guarantees, as required by the Court ’ s case law prior to a deportation based on internal flight options, were established in this case. The Court ’ s case-law on internal flight relocation is clear. The relevant principles are articulated in Salah Sheek v. the Netherlands [1] and have been confirmed, more recently, in Sufi and Elmi v. the United Kingdom . [2] 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. Furthermore, such guarantees must be in place at the point when the assessment of risk under Article 3 is being made by the Court. [3]

One need go no further than the first guarantee, namely, that of ‘ safe travel ’ , to see that there is no mention anywhere in the judgment as to how the Government proposes to have the applicant travel to the area concerned. A consideration of the transit risks is all the more important having regard to the recent escalation in violence in Iraq. As in M.Y.H. and Others v. Sweden , 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.

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

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

[3] Salah Sheekh v. the Netherlands , no. 1948/04, § 136, 11 January 2007