“Gaining towns is important because it allows training camps to be established so that ISIL can rebuild its cadres”
“where a person can show that he is at risk of being specifically targeted because of factors particular to his personal circumstances, this will lower the level of indiscriminate violence necessary to attract humanitarian protection .”: [9]. 292. In this section of our decision, therefore, we consider which particular factors might engage the sliding scale in this way. Before we do so, we note that there is potentially significant overlap with the Refugee Convention, in that an individual who is at risk of being specifically targeted because of factors particular to his personal circumstances might well be deserving of protection under the 1951 Convention on that account. It must, in other words, be recalled that a person who is at risk of persecutory ill treatment on account of their race, religion, nationality, membership of a particular social group or political opinion is, subject to countervailing considerations, a refugee whose appeal falls to be allowed on that basis. A decision maker who is minded to conclude, say, that an individual with an actual or perceived association with ISIL is more likely to be exposed to conditions contrary to Article 15(c) would be well advised to consider whether, in reality, it should be the 1951 Convention and not the Qualification Directive which should provide the appropriate protection against return. The UNHCR makes the same point at footnote 711 of its May 2019 document, as did the European Asylum Support Office, at page 24 of its 2014 Judicial Analysis on Article 15(c) QD: “ if ‘personal circumstances’ are [membership of a particular social group] or any of the other four grounds of the 1951 Refugee Convention, then the appropriate framework to examine the claim may well be that of the refugee definition”. 293. It was originally submitted in writing, on behalf of the first and second appellants, that we should provide guidance on the entitlement of various categories of individuals to protection under the 1951 Convention. Mr Knafler subsequently accepted orally and in his closing written submissions, however, that such protection fell outside the scope of our analysis. It was nevertheless submitted on behalf of the appellants, at [98]-[115] of their opening skeleton, that there were no fewer than seventeen personal characteristics which might be relevant to the sliding scale analysis under Article 15(c). The list was compiled, as we understand it, by taking the “Main Categories of Claim” from the UNHCR’s May 2019 guidance and expanding upon it, particularly by adding additional categories of individuals who appear to be at enhanced risk as a result of the EASO reports. The list which was given in the skeleton was as follows (reproduced verbatim): (i) Civilians perceived to be supporting ISIS (ii) Families/Tribes Associated/Affiliated with actual or perceived ISIS members (iii) Persons providing legal services to ISIS suspects or their families so affiliated (perceived or real) (iv) Persons associated/perceived as supportive of the government (v) Persons opposing (perceived or real) the government/KRG or those so affiliated. (vi) Members of religious and minority ethnic groups and persons contravening strict Islamic rules (vii) Journalists/media professionals engaging in critical reporting/sensitive issues. (viii) Humanitarian/Medical Workers (ix) Women/girls with certain profiles or in specified circumstances (x) Children with certain profiles/specific circumstances (xi) Persons of diverse sexual orientation and/or gender identities (xii) Individuals targeted as part of Tribal conflict/Blood feuds (xiii) Palestinians (xiv) Business owners/those perceived as wealthy (xv) Perceived collaborators of Western organisations/armed forces (xvi) People with disabilities (xvii) People displaying westernised behaviour 294. The respondent accepts that the following categories of individual are at enhanced risk: civilians perceived to be supportive of ISIL and families or tribes associated with ISIL; persons associated with central government, the PMU or those in civilian leadership positions; and civilians returning to areas in which ISIL retains a presence. Broadly, therefore, the respondent accepts that the first five categories identified by the appellants are at enhanced risk for the purposes of the sliding scale assessment. The respondent also enters caveats in respect of each category. In respect of Sunni Arab males, she highlights that the background evidence no longer suggests, as it did around 2017, a widespread practice of the PMUs targeting these individuals at checkpoints. In respect of those in civilian leadership positions and those returning to areas in which ISIL retains a presence, the respondent highlights the considerable reduction in ISIL activity and the corresponding reduction in risk to such individuals. 295. In respect of the remaining categories, the respondent simply states at [132] of her closing submissions that these categories are ‘more appropriately considered under the Refugee Convention’ and that they are consequently beyond the scope of the current Country Guidance assessment. We consider that to be correct, but only to a point. Each of the categories identified by the appellants is capable of engaging the Refugee Convention, mostly on the basis of actual or imputed political opinion or membership of a particular social group. An individual who falls for consideration under Article 15(c) will have been adjudged not to be deserving of protection under the Refugee Convention. That does not mean that these factors necessarily cease to be of relevance when assessing eligibility for subsidiary protection. A characteristic might, in other words, serve to enhance risk under Article 15(c) even though it is insufficient in itself to entitle an individual to protection under the 1951 Convention. We have therefore evaluated the categories advanced by the appellants with a view to providing some guidance on the bearing that the presence of such factors might have on the sliding scale analysis required by Article 15(c). Given the limited submission advanced by the Secretary of State, we note that we have not had the benefit of full argument on each of the categories. 296. The first three categories fall under the heading ‘persons wrongly suspected of supporting ISIS’ in the UNHCR guidance. Insofar as it might have been thought in the past that Sunni males would automatically fall under suspicion of ISIL sympathy, we agree with the respondent that that is no longer the case. It is apparent from the background material, however, that an individual might fall under suspicion of ISIL support for the most tenuous of reasons including, for example, the fact that they remained in an ISIL-controlled area for a period of time (even though ISIL often inflicted harsh punishment on those who attempted to leave). Equally, there is unfortunately a clear basis in the background material for the suggestion that those providing legal services to ISIL suspects or their families might encounter difficulties on account of such actions. Suspicion of ISIL activity or association may place an individual at risk, particularly from the PMU and particularly at checkpoints, where it is clear that individual security actors maintain their own lists of individuals thought to have an ISIL association. Whilst we understand the basis upon which the appellants’ representatives have attempted to define with greater specificity the types of individuals who might fall under such suspicion, we think it preferable not to do so and simply to state that those who are suspected of supporting ISIL for whatever reason might be at enhanced risk for the purposes of Article 15(c). Decision makers will wish to recall that those who actually supported ISIL might, as a result of a fact-specific enquiry into their actions, be excluded from the protection of the Refugee Convention or Article 15(c). 297. Categories (iv) to (xiii) are taken from the UNHCR guidance, although the appellants have sought to modify the UNHCR’s mode of expression in parts. It is necessary to consider each of these proposed categories, since we consider that some revision of the appellants’ proposed list is necessary. 298. Those who are associated with national or local government or the security apparatus, or perceived to be so, are likely to be at increased risk in those areas in which ISIL retains a presence. The respondent accepts that to be the case, albeit that she phrases her acceptance in slightly different terms from the appellants. The areas in which such targeting is likely to take place, and the types of individuals targeted, will be apparent from our analysis of the Formerly Contested Areas. In various parts of those areas, those associated with local government (such as village mukhtars) may be at particular risk from ISIL remnants which continue to operate. It is imperative that any claim to be at enhanced risk for this reason is evaluated by reference to the area of return. A village mukhtar who returns to a part of the Formerly Contested Areas in which ISIL remains active might be at increased risk, whereas a comparable individual who returns to a part of the country with negligible remaining ISIL presence would not be. Given ISIL’s current modus operandi, we consider that a current actual or perceived association with government or the security apparatus is more likely to enhance risk than a former association. ISIL’s primary goal is to unsettle the existing apparatus, rather than to punish former association. 299. Those who are opposed, or perceived to be opposed, to the Government of Iraq or the Kurdistan Regional Government may be at enhanced risk on return to territory controlled by those bodies. A detailed analysis is beyond the scope of this decision but there are credible reports, for example, of journalists who are critical of the KRG encountering difficulties as a result. There is also evidence of such intolerance on the part of the authorities in Baghdad, albeit to a lesser extent. As noted in Mr Thomann’s cross-examination of Dr Fatah, the examples he gave in his report of such targeting were limited and outdated but it was not suggested by Mr Thomann that criticism of the authorities is wholly tolerated. The background evidence including the recent EASO report would not have supported such a submission. The fact that an individual is so opposed might serve to enhance the risk of specific targeting which is relevant to the assessment under Article 15(c), even where that risk is insufficient to found a claim under the Refuge Convention. 300. Members of religious and minority ethnic groups are considered by the UNHCR to be likely to be in need of international refugee protection in areas where ISIL retains a presence. As we have underlined throughout this decision, we emphasise our appreciation of UNHCR’s unique position and expertise in such matters. There is some danger in applying too broad a brush in trying to describe this cohort, however. The first danger is in the use of the word ‘minority’ in the context of Iraq. As we have endeavoured to explain, the ethno-religious demography of Iraq is varied by region. Whilst Sunni Arabs are in the minority across the country as a whole, for example, there are areas in which they comprise the majority. The same might also be said in respect of the Kurds. The second difficulty is to assume or potentially to assume that an ethnic group is at a disadvantage because it is statistically in the minority in a particular area. Whilst such an assumption might have been proper in the past, the proliferation of the PMUs has altered the balance of power in particular areas, often to the detriment of the majority. It was a familiar theme in Dr Fatah’s written and oral evidence, for example, that the Shia militia had in certain areas renamed buildings and taken down Kurdish symbols. The third danger is in treating the presence or absence of ISIL from an area as a binary concept. As we have explained at some length above, ISIL retains a presence in a number of areas but the size and influence of that presence, and ISIL’s levels of activity, vary significantly. Whenever it is submitted that an individual is at enhanced risk on this basis, therefore, it is necessary to evaluate the submission with particular care, with reference to the composition of the area in question, the local balance of power and the extent of ISIL activity in the area in question. With respect to the UNHCR, we consider it too simplistic to state that religious or ethnic minorities are likely to be at increased risk in areas in which ISIL retains a presence. Membership of an ethnic or religious minority may increase the risk to an individual but a contextual evaluation rather than a presumption is required. 301. The position in respect of those contravening strict Islamic mores is similar, although we note that there is comparatively little recent evidence (whether cited at footnotes 475-478 of the UNHCR guidelines or elsewhere) that individuals are presently at risk, or at enhanced risk, on this basis. Some, but not all, of the incidents described in those footnotes pre-date the military defeat of ISIL and we consider the general direction of travel in Iraq, in light of recent history, to be away from fundamentalism. Whilst there is some evidence of attacks against venues selling alcohol, we note the evidence in the respondent’s document entitled Iraq: Standards of Living about the re-opening of such venues in Mosul. As with the other factors presently under consideration, we accept that a lack of adherence to strict Islamic mores is capable of giving rise to an increased risk for subsidiary protection purposes, although it will be necessary to have careful regard to the nature of the area in question before concluding that this factor actually serves to increase risk. 302. Journalists who engage in critical reporting on political or other sensitive issues. As we have already stated, any decision maker should first consider whether such an individual is deserving of protection under the Refugee Convention on grounds of actual or imputed political opinion or, conceivably, membership of a particular social group. Where they are not, it is possible that such an individual will be at enhanced risk for the purposes of Article 15(c). There is an appreciable overlap between this category and those who are opposed to the GOI or the KRG and those who fail to adhere to Islamic mores. As the UNHCR document makes clear, however, journalists and other media professionals might find themselves at risk or enhanced risk on account of criticism of a range of actors, including tribal leaders or the PMUs. As with the other categories, a full appreciation of the area in question is necessary if such a submission is to be assessed in its proper context. 303. Humanitarian and medical workers were previously targeted by ISIL, as reported at p85 of the UNHCR guidelines. Such attacks have significantly decreased since the military defeat of ISIL but there continue to be some reports of intimidation, physical assault, arrest and detention, and, in some cases, abduction and killing of such individuals. Those who operate in IDP camps are more susceptible and it is clear from the guidelines that the enhanced risk of violence emanates not only from remnants of ISIL in the Formerly Contested Areas but also from other security actors. We are satisfied that such individuals might be at enhanced risk under Article 15(c) in specific areas, although the magnitude of risk will depend upon the nature of their role and the hostility of actors in that area to such activity. 304. The appellants’ ninth and tenth categories are “Women/girls with certain profiles or in specified circumstances” and “Children with certain profiles/specific circumstances”, both of which descriptions are uninformative without further explanation. As is clear from the text of the guidance, UNHCR’s concern is to inform decision makers about the specific types of Refugee Convention risks to which women and children might be exposed, including the risks of trafficking, honour-based and domestic violence. Here, as in other respects, this guidance for the application of the Refugee Convention is ill-suited to simple transposition into the sliding scale analysis required by Article 15(c) of the Qualification Directive. We do consider, however, that women and children without genuine family support, including widows and divorcees, are likely to be at enhanced risk for the purposes of the assessment required by the Qualification Directive. 305. Individuals of diverse sexual orientations and/or gender identities are considered by UNHCR to be likely to be in need of international refugee protection. UNHCR reports, for example, that LGBTI organisations cannot operate openly and that most individuals keep their orientation or gender identity secret. Such considerations are to be assessed firstly under the Refugee Convention framework provided by HJ (Iran)[2010] UKSC 31 ;[2010] 3 WLR 386 and we do not purport to give country guidance on the situation for LGBTI individuals in Iraq. Where an individual with a diverse sexual or gender identity is found not be in need of protection under the Refugee Convention, their identity might nevertheless be relevant to the sliding scale analysis required by Article 15(c), not least because UNHCR records increased difficulties for such individuals in accessing employment and medical care and in crossing checkpoints. We note also that EASO states in the Targeting of Individuals report that LGBTI individuals have been targeted by the PMUs for “deviating morality”. 306. Those targeted as part of tribal conflict resolution and blood feud. Pages 106-108 of the UNHCR’s guidance provides a detailed account of the types of tribal conflict resolution and blood feuds which may occur in Iraq. We think it unlikely that the existence of such a conflict – which relates to a state of affairs rather than an individual characteristic – would be relevant to the sliding scale assessment under Article 15(c). 307. Palestinian Refugees. UNHCR explains the risk to those of Palestinian origin in the following way: “P alestinian refugees continue to be faced with a sentiment or perception among some segments of the Iraqi population, including among law enforcement agencies, that they received preferential treatment from the former Government of President Saddam Hussein and/or that they are supportive of ISIS, or previously, Al-Qa’eda in Iraq”