MM (Iran) v The Secretary of State for theHome Department

This is an appeal against the order promulgated on 16 July 2009 of the Asylum and Immigration Tribunal (Mr CMG Ockelton, Deputy President, and Senior Immigration Judge Renton) following a reconsideration hearing on 22 May 2009 ("the 2009 determination") that the tribunal's earlier determination promulgated on 30 August 2007 (Senior Immigration Judge Jordan and Immigration Judge Summerville) dismissing the appellant's appeal against the Secretary of State's refusal of his asylum claim ("the 2007 determination") should stand, because there was no error of law in the tribunal's conclusion in 2007 that the appellant had not established a well-founded fear of persecution in Iran.

For present purposes, the most convenient summary of the appellant's immigration history is to be found in paragraphs 2-5 of the 2009 determination:

“2.

The Appellant’s history is as follows. He was born in Iran. His father was closely involved with a body called the KDPI and as a result thought it was advisable to leave Iran. He therefore moved to Iraq and the Appellant lived with him there for some sixteen or seventeen years. We were not told whether either father or son had any lawful immigration status in Iraq. Subsequently, the Appellant moved to Turkey, and from there he came to the United Kingdom. It is accepted that he entered the United Kingdom illegally. His claim to asylum in the United Kingdom was made 6 October 2006.

3.

That was not the first claim for asylum that he has made. He had claimed asylum in Turkey. Turkey is a party to the 1951 Convention Relating to the Status of Refugees, but not to the 1967 Protocol. It therefore does not recognise as Convention refugees individuals whose claim arises after 1950, and, in addition, has made a declaration under Art 1B confining the application of the Convention to those whose fear arises from events occurring in Europe before 1 January 1951. But, as a party to the 1951 Convention, Turkey accepts the jurisdiction of the United Nations High Commissioner for Refugees, as set out in the Statute annexed to Resolution 428(V) adopted by the General Assembly on 14 December 1950. Refugee status determination in relation to those not falling within the Convention as it operates in Turkey is undertaken by the UNHCR. Those whose claims the UNHCR accepts are ‘mandate refugees’, and are issued with a document intended to evidence the identity of the claimant.

4.

The Appellant’s claim in Turkey was accepted by the UNHCR. He was issued with the relevant document, of which we have seen a copy, on 7 January 2004.

5.

In assessing his claim under the 1951 Convention made in the United Kingdom, the Respondent appears to have taken no notice at all of the fact that the Appellant had established mandate refugee status in Turkey. The Respondent rejected the Appellant’s claim because it was considered that he had not made out his case. When the Tribunal heard the appeal, there was argument relating to the decision-making process adopted by the Secretary of State and to the effect of the grant of mandate refugee status. The Tribunal did not ignore the grant. But it nevertheless considered, on the basis of the material before it as a whole, that the Appellant had not established his claim to have a well-founded fear of persecution in Iran. It therefore dismissed the appeal.”

Having summarised the appellant's claim, the tribunal described the mandate refugee scheme then operated by the Home Office. In paragraph 15 of its determination the tribunal said:

In paragraph 18 the tribunal summarised the Secretary of State's decision letter. At paragraph 19 the tribunal said this:

The tribunal considered whether the Secretary of State should be required to reconsider the appellant's application but decided that this was unnecessary because the tribunal was itself in a position to take the UNHCR decision into account in its overall assessment of the appellant's claim for asylum.

The tribunal then considered the factual basis of the claim in very great detail, concluding in paragraph 47:

In paragraphs 48-51 the tribunal considered:

Having dealt with the issue of legitimate expectation, which is no longer relevant, the tribunal dismissed the appellant's appeal. Reconsideration was ordered and the reconsideration hearing took place on 22 May 2009.

Before the tribunal Mr Bedford submitted that the tribunal had materially erred in law in its 2007 determination because a) the UNHCR's recognition of the appellant as a refugee was binding on the Secretary of State and the tribunal, and b) the appellant being a person with a well-founded fear of persecution in Iran is entitled to the benefits of the qualification directive 2004/83/EC. The tribunal rejected both of these submissions.

Having referred to the decision that the European Court of Human Rights in Y v Russia (application No. 20113/07), the tribunal said in paragraph 15:

The tribunal continued in paragraphs 16 and 17 as follows:

“16.

That conclusion is sufficient to determine this reconsideration, but we should note in addition that Mr Bedford’s primary underlying submission that, in accepting that the Appellant was a mandate refugee who came under the jurisdiction of the UNHCR, the UNHCR was determining precisely the same issues as arose in a claim under the Refugee Convention, is, to say the least, extremely questionable. The jurisdiction ad personam of the UNHCR is set out in Art 6 of the Statute. The only paragraph of that article that could be relevant to the Appellant is Art 6B: -

‘Any other person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had well-founded fear of persecution by reasons of his race, religion, nationality or political opinion and is unable or, because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence.’

17.

Mr Bedford submitted to us that there was no material difference between those words and the words in Art 1A of the Refugee Convention. We pointed out the absence of reference to a particular social group, and he said there was no material difference for the purposes of this case; but that was a submission by which it is very difficult to see the force in view of his primary submission that a determination of mandate refugee status is in general sufficient for the purposes of the Convention. In any event, however, it is clear from the wording of Art 6, in particular the tenses, that the jurisdiction of the UNHCR extends over persons who would not be regarded as Convention refugees. A Convention refugee is a person who is outside his country of nationality and has a well founded fear of persecution. A person who left his country because he had such a fear may or may not be a Convention refugee now; but, whether or not he is a Convention

refugee now, he is included within the words of Art 6B. It is obvious that there are many individuals within Art 6B who are not Convention refugees. That the UNHCR should have jurisdiction over them is entirely understandable in view of the UNHCR’s general functions; but it is in our view entirely unarguable that every mandate refugee should be regarded as a Convention refugee. (See also R(Hoxha) v Special Adjudicator [2005] UK HL 19 at [85].)

The tribunal concluded in paragraph 20:

In a supplementary skeleton argument on behalf of the appellant, Mr Bedford advanced three arguments which, for convenience, I will set out verbatim as they are set out in the supplementary skeleton argument:

The second argument is put in the alternative:

The third argument is put in the further alternative:

On reading the supplementary skeleton argument of the appellant it seemed to me that the first and second arguments were simply alternative ways of putting the submission that had been rejected by the tribunal in the 2009 determination, namely that because of the principle of cooperation, whether under the Treaty or the Refugee Convention, the Secretary of State and the tribunal were bound by the UNHCR recognition of the appellant as a refugee. That impression was confirmed by Mr Bedford's oral submissions this morning.

Mr Bedford accepted that the third argument, which contends that the Secretary of State's policy in respect of mandate refugees is irrational, depends on the success of his first and second arguments. That is because the reason why it is said that the policy is irrational is that it places us in breach of our international obligations, namely those international obligations relied on in the first and second arguments. In these circumstances, it is unnecessary to consider Ms Gray's submission on behalf of the Secretary of State that this third argument was not raised before the tribunal in 2007 or 2009 and indeed was not included in the grounds of appeal in respect of which permission to appeal to this court was granted by Jackson LJ at the conclusion of a renewal hearing on 22 February 2010, [2010] EWCA Civ Division 294. Had a separate irrationality challenge been raised, I would not have granted permission to appeal on that ground at this late stage. It would not have been a pure point of law. A decision as to whether any particular aspect of the Secretary of State's policy is irrational would require consideration of the relevant evidence, which is simply not available.

Before considering the appellant's first and second arguments it is convenient to consider the position of the UNHCR.

The UNHCR was given permission to intervene in this appeal by way of written submissions. Mr Southey QC and Ms Hurst appeared on its behalf this morning. For my part, I would wish to express my gratitude to them for their written submissions and their brief oral submissions in answer to our questions. I found those submissions to be considerable assistance and, as will be seen, they were in large measure accepted by Ms Gray on behalf of the respondent.

For present purposes, the following three points made by the UNHCR in its submissions are of particular relevance:

With one limited exception, the respondent's position is consistent with that of the UNHCR. In particular the respondent submits that point (B) above is supported by the decisions of the European Court of Human Rights in Abdolkhani & Karimnia v Turkey (application number 30471/08, see paragraph 69) and Y v Russia cited by the AIT (see above) by academic commentators, and by domestic authority dealing with the grant of refugee status by another state under the OAU Convention: see, for example, SSHD v KK (Democratic Republic of Congo) [2005] UK AIT 00054 at paragraphs 16 to 19.

The respondent does not take issue with the proposition in point (C)(ii) above that a United Kingdom decision maker must take "serious account" of the UNHCR's recognition of a person as a refugee. The respondent accepts that:

The only possible difference between the position of the UNHCR and that of the respondent relates to point C(i). The respondent submits that the weight to be given to a decision by the UNHCR to recognise a person as a refugee is, as with other material factors, a matter for the decision taker in any particular case: see Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 795.

The Secretary of State submits that the UNHCR may have difficulty in securing access to the relevant information needed to assess mandate status and the tribunal may not know the basis on which the claim was accepted by the UNHCR or what evidence was in its possession when it did so.

It seems to me that point B above, if accepted, destroys the central if not the only plank in the appellant’s case. The UNHCR's prior recognition of the appellant as a refugee was not binding on the tribunal in 2007, as the tribunal concluded in the 2009 determination. The UNHCR's position in respect of point B is plainly correct. It accords with the jurisprudence in the European Court of Human Rights and with domestic and academic authority. Mr Bedford was unable to show us any authority in the contrary. He relied upon the cases of Crehan v Inntrepreneur [2007] 1 AC 333 andDelimitis v Henninger Brau [1992] 5 CMLR 210. Those decisions are concerned with avoiding conflict between decisions of the European Commission and domestic courts where both have concurrent jurisdiction in a particular field. For that reason those decisions are plainly distinguishable. The relationship between the UNHCR and individual states in the EU having to decide refugee status cannot sensibly be equated with the relationship between the European Commission and member states, where there is co-extensive jurisdiction which is shared by both the Commission and the individual member states.

As the tribunal said in the 2009 determination, the obligation imposed on the United Kingdom, whether the issue is considered under the Treaty or the Refugee Convention, is an obligation to cooperate either with fellow member states in the EU or with the UNHCR. It is not an obligation to be bound by the UNHCR's decisions. That conclusion disposes of both the first and the second of the appellant's arguments, and the third argument therefore also falls.

Although it was not raised as a ground of appeal, and indeed does not feature in the appellant's skeleton argument and supplementary skeleton argument, it is, in my judgment, appropriate to consider the apparent different between the UNHCR and the respondent in respect of point C(i): whether the Secretary of State and the tribunal must give "considerable weight" to a recognition by the UNHCR of an appellant's refugee status. I say “apparent” because on reading the parties’ written submissions it seemed to me that in reality there was likely to be very little difference between the position of the UNHCR and that of the respondent, and there was a danger that an abstract semantic discussion might divert attention from what is likely to happen in terms of practical decision-making by the Secretary of State and the tribunal. In response to our questions Ms Gray and Mr Southey confirmed that this was the case. In reality, a decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case. It would be just as unrealistic to contend that a decision by the UNHCR as to refugee status must always be given considerable weight regardless of any indications to the contrary as it would be to contend that it could be given less than considerable weight for no good reason.

Both Ms Gray and Mr Southey accepted that this was a sensible way to reconcile the apparent difference between them. I should emphasise that these observations of mine are not to be treated as enactment binding either the Secretary of State or the tribunal to approach decision-making in any particular order; they are merely intended to be a reflection of the practicalities of decision-making in this difficult and sensitive area.

Applying this approach to the facts of the present case. Although the tribunal in 2007 did not use the words "considerable weight", it is plain when the 2007 determination is read as a whole that the tribunal did approach this issue on the basis that there had to be, and that there were, cogent reasons why it was "unable to attach significant weight” to the decision made by UNHCR in respect of this particular appellant (see paragraphs 48 to 51 of the 2007 determination cited in para.7 above).

It follows that in respect of this point also there was no material error of law by the tribunal in 2007.

For these reasons I, for my part, would dismiss this appeal.

I agree.

I also agree. Accordingly, the appeal will be dismissed.