Iraqi Mandaean single woman may safely be returned to Iraqi Kurdistan

W.H. v. Sweden, 27 March 2014

“…(b)The general situation in Iraq

60.The Court notes that a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (H.L.R. v. France, cited above, § 41). However, the Court has never excluded the possibility that the general situation of violence in a country of destination may be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there is a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (NA. v. the United Kingdom, cited above, § 115).

61.While the international reports on Iraq attest to a continued difficult situation, including indiscriminate and deadly attacks by violent groups, discrimination as well as heavy-handed treatment by authorities, it appears that the overall situation has been slowly improving since the peak in violence in 2007. In the case of F.H. v. Sweden (no. 32621/06, § 93, 20January 2009), the Court, having at its disposal information material up to and including the year 2008, concluded that the general situation in Iraq was not so serious as to cause, by itself, a violation of Article 3 of the Convention in the event of a person’s return to that country. Taking into account the international and national reports available today, the Court sees no reason to alter the position taken in this respect four years ago.

62.However, the applicant is not in essence claiming that the general circumstances pertaining in Iraq would on their own preclude her return to that country, but that this situation together with the fact that she is a Mandaean and a single woman would put her at real risk of being subjected to treatment prohibited by Article 3.

(c)The applicant’s family situation

63.While it is not in dispute in the case that the applicant is a Mandaean and that, as a consequence, she belongs to a religious group that is in a vulnerable situation in Iraq, the Government has questioned her claim that she has no relatives left in the country and have asserted that she has made conflicting statements concerning her family situation there. It is therefore necessary to first look at that issue, in order to determine whether she would be alone without male protection upon return to Iraq.

64.The Court notes, in this respect, that the applicant stated that her family had frozen her out when informed of her new relationship with a Muslim man. While the Government have asserted that the applicant must have referred to relatives in Iraq and that this statement therefore showed that she would not be without family support upon return, the Court is of the opinion that her claim that she was talking about her family in Sweden cannot be considered implausible or incongruous, especially when assessed in the context of her repeatedly insisting that no relatives remain in Iraq (with the exception of the mother who, at the time of the applicant’s arrival in Sweden, was still living in Iraq, but allegedly disappeared in 2010). The Court also notes that the applicant’s brother, in November 2013, was granted a two-year residence permit in Sweden based on his marriage to a Swedish citizen. Consequently – and as it does not find reason to question the other family information supplied by the applicant – the Court will examine the case on the basis that, if returned to Iraq, she will live as a single woman.

(d)The situation of Mandaeans in Iraq

65.In several recent judgments (see, for instance, M.Y.H. and Others v. Sweden, 50859/10, 27 June 2013) the Court examined the present situation for Christians in Iraq and concluded that the number of targeted attacks by extremists against this vulnerable minority appeared to have escalated. The Mandaean community is much smaller than the Christian group and, consequently, the recorded attacks and the number of reports concerning Mandaeans are naturally less frequent. It appears, however, that the Mandaeans are in much the same situation as the Christians in the southern and central parts of Iraq, being attacked because of their faith, their profession and their perceived wealth (see, for instance, the UNHCR Guidelines, at p. 29; § 33 above). Obviously, the low number of remaining Mandaeans in the country and the fact that the community is not uniformly organised – the members living mainly in scattered groups – further contribute to their vulnerability.

(e)The situation of single women in Iraq

66.Reports from national and international organisations attest to the difficult situation of women in Iraq (ibid., at p. 27; § 33 above; see also the UNAMI Report; § 28 above). As noted above, the present applicant, if returned to Iraq, is likely to live on her own, without the protection of a social network, in particular the protection potentially provided by male relatives. Nevertheless, in the Court’s view, the general risks attached to the status of being a single woman in Iraq cannot be considered of themselves to reach the threshold of ill-treatment prohibited by Article 3 of the Convention (cf. M.Y.H. and Others v. Sweden, cited above, § 71). However, in addition to being a single woman, the applicant is also a member of a small religious minority. As noted by the Minority Rights Group International (§ 32 above) and the UNHCR (§ 33 above), minority women face a particular security risk, being subjected to violence, discrimination and religiously driven pressure to convert or change their appearance.

67.The two characteristics – being a single woman and a member of an ethnic or religious minority – must be examined together. Having regard to the country information available to the Court, which appears to focus on the situation in southern and central Iraq, the Court considers that women with these characteristics in general may well face a real risk of being subjected to treatment contrary to Article 3 if returned to the mentioned parts of the country. This view is reinforced in the present case by the fact that the applicant belongs to a particularly small and vulnerable minority.

(f)The possibility of relocation to the Kurdistan Region

68.It remains to be determined whether the applicant would be able to relocate internally in Iraq to the Kurdistan Region.

69.The Court reiterates that Article 3 does not, as such, preclude Contracting States from placing reliance on the existence of an internal flight or relocation alternative in their assessment of an individual’s claim that a return to the country of origin would expose him or her to a real risk of being subjected to treatment proscribed by that provision. However, the Court has held that reliance on such an alternative does not affect the responsibility of the expelling ContractingState to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3. Therefore, as a precondition of relying on an internal flight or relocation alternative, certain guarantees have to be in place: the person to be expelled must be able to travel to the area concerned, gain admittance and settle there, failing which an issue under Article 3 may arise, the more so if in the absence of such guarantees there is a possibility of his or her ending up in a part of the country of origin where there is a real risk of ill‑treatment (Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 266, 28 June 2011, with further references).

70.The three northern governorates – Dahuk, Erbil and Sulaymaniyah – forming the Kurdistan Region of Iraq, or KRI, are, according to international sources, a relatively safe area. As noted in the UNAMI 2011 report, community representatives had stated that the Mandaeans do not face any threat or persecution in the Kurdistan Region and are supported by the regional government (§ 31 above). The UNHCR has concluded that, in the KRI, “the rights of religious minorities are generally respected and groups can worship freely without interference”. Specifically mentioning the Mandaean minority, the Finnish/Swiss report expressed the same opinion (at pp. 49-50, § 41 above).

71.The Court further notes that, while the Representative of the UN Secretary-General expressed concern over sexual and gender-based violence in the Kurdistan Region following a visit to Iraq in late 2010 (§ 31 above), the situation for women appears to have developed favourably since (as noted in the UNAMI Report for the second half of 2012; § 28 above).

72.As regards the possibility of entering the KRI, some sources state that the border checks are often inconsistent, varying not only from governorate to governorate but also from checkpoint to checkpoint (see the UNHCR Guidelines, § 37 above, and the Finnish/Swiss report, which appears to rely heavily on the UNHCR’s conclusions in this respect, § 41 above). However, the difficulties faced by some at the KRI checkpoints do not seem to be relevant for certain groups. In regard to Christians, this has been noted by, among others, the UNHCR. While the country information documents available to the Court do not mention any specific entry procedures for Mandaeans, the fact that many members of that community have taken refuge in the KRI and are living there alongside other minorities give the impression that they benefit from a similar preferential treatment as the Christians (see § 70 above).

73.Moreover, whether or not members of the Mandaean community have to provide documentation in order to enter the three northern governorates, in any event there does not seem to be any difficulty to obtain identity documents in case old ones have been lost. As concluded by the UK Border Agency (§ 38 above) and the UK Upper Tribunal in the recent country guidance case of HM and others (§ 40 above), it is possible for an individual to obtain identity documents from a central register in Baghdad, which retains identity records on microfiche, whether he or she is applying from abroad or within Iraq. As to the need for a sponsor resident in the Kurdistan Region, the Upper Tribunal further concluded, in the case mentioned above, that no-one was required to have a sponsor, whether for their entry into or for their continued residence in the KRI. It appears that the UNHCR is of the same opinion as regards entry, although its statement in the Guidelines directly concerns only the requirements of a tourist (§ 37 above).

74.The Court further notes that there are regular flights from Sweden to the airports in Erbil and Sulaymaniyah without stopovers in Baghdad or other parts of Iraq. The applicant would thus be able to arrive in the Kurdistan Region without having to go through the southern or central parts of the country.

75.Internal relocation inevitably involves certain hardship. Various sources have attested that people who relocate to the Kurdistan Region may face difficulties, for instance, in finding proper jobs and housing there, not the least if they do not speak Kurdish. Nevertheless, the evidence before the Court suggests that there are jobs available and that settlers have access to health care as well as financial and other support from the UNHCR and local authorities. As noted above, Mandaean community representatives have attested that Mandaeans are supported by the Kurdistan Regional Government (UNAMI 2011 report, § 31 above). In any event, there is no indication that the general living conditions in the KRI for a Mandaean settler, whether a single woman or not, would be unreasonable or in any way amount to treatment prohibited by Article 3. Nor is there a real risk of his or her ending up in the other parts of Iraq.

76.In conclusion, therefore, the Court considers that relocation to the Kurdistan Region is a viable alternative for a Mandaean fearing persecution or ill-treatment in other parts of Iraq. The reliance by a Contracting State on such an alternative would thus not, in general, give rise to an issue under Article 3 of the Convention.

(g)The particular circumstances of the applicant

77.It remains for the Court to determine whether, despite what has been stated above, the personal circumstances of the applicant would make it unreasonable for her to settle in the Kurdistan Region. In this respect, the Court first notes that the applicant’s accounts were examined by the Migration Board and the Migration Court, which both gave extensive reasons for their decisions that she was not in need of protection in Sweden. The applicant was able to present the arguments she wished with the assistance of legal counsel.

78.The Court has already had regard to the applicant’s special situation as a single woman of Mandaean minority denomination and found that these characteristics would not prevent her from settling safely and reasonably in the Kurdistan Region. As regards the specific incidents to which the applicant and her family have been subjected in Iraq, the Court notes that she received a threat on one single occasion in June 2007, more than six years ago. Furthermore, following the end of the ordinary asylum proceedings, the applicant has claimed that her mother was kidnapped and presumably is dead. There are no indications, however, as to why she may have been kidnapped or killed. Furthermore, both this event and the threat received in 2007 occurred in Baghdad where the applicant should not be returned (see § 67 above). They do not show that she would face a risk of treatment prohibited by Article 3 in the Kurdistan Region.

79.The applicant has also referred to her brother’s alleged active duty in the Iraqi army and her new relationship initiated in Sweden with a Muslim man from Iraq. However, also with respect to these circumstances, the Court cannot find that they would put the applicant at particular risk if she is deported to the Kurdistan Region. This is all the more so as the brother may not return to Iraq, following his marriage to a Swedish citizen. As regards the applicant’s partner, according to information supplied by the parties, he left Sweden for Syria in October 2010 and, allegedly, cannot return to Iraq. Noting that the relationship was first invoked in the applicant’s appeal to the Migration Court and thus appears to have started after the applicant’s deportation had been ordered by the Migration Board, the Court finds that no evidence has been presented which shows that he would be unable to enter the Kurdistan Region or that they would face ill-treatment there based on their relationship.

(h)Conclusion

80.Having regard to the above, the Court concludes that, although the applicant, as a Mandaean single woman, may face a real risk of being subjected to treatment contrary to Article 3 of the Convention if returned to the southern and central parts of Iraq, she may reasonably relocate to the Kurdistan Region, where she will not face such a risk. Neither the general situation in that region nor any of the applicant’s personal circumstances indicates the existence of said risk.

Consequently, her deportation to Iraq would not involve a violation of Article3, provided that she is not returned to parts of the country situated outside the Kurdistan Region.“

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