HA v The Secretary of State for the Home Department

The origins of this appeal lie in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”) dated 14 January 2014, whereby it was determined that the further representations made on behalf of the Appellant, who is aged 30 years and originates from the so-called Palestinian National Authority (“PNA”) – viz the territory (or territories) of Palestine - did not constitute a fresh claim under paragraph 353 of the Immigration Rules. The First-tier Tribunal (the “ FtT ”) dismissed the Appellant’s ensuing appeal.

Permission to appeal to this Tribunal was refused initially. This was challenged by an application for judicial review which was the subject of formal con sensual resolution documented by a j oint m inute , duly endorsed by the Lord Ordinary on 14 August 2014 , agreeing that the application for permission to appeal gives rise to the following important point of principle:

The facts belonging to the matrix bearing on the question of law to be determined are uncontent i ous. The Appellant entered the United Kingdom unlawfully in November 2007 and claimed asylum. The Secretary of State refused his claim in March 2010 and the ensuing appeal was dismissed on 20 May 2010. Events thereafter included a petition for judicial review, which was dismissed; further representations to the Secretary of State, which were rejected; an appeal, in the context of which the Secretary of State’s decision was withdrawn; further representations on behalf of the Appellant; and a reconsideration of the Appellant’s case by the Secretary of State, culminating in the further decision dated 14 January 2014 (hereinafter the “ impugned decision ”). By the impugned decision the Secretary of State determined that this was not a fresh claim under paragraph 353 of the Immigration Rules and that the Appellant did not qualify for leave to remain under paragraph 276 ABE.

The PNA is t he Appellant ’s country of origin. Prior to his advent to the United Kingdom he had lived in Syria with his family. There he and his family were granted refugee status and the Appellant had employment. His asylum claim in the United Kingdom was based upon an asserted fear of persecution in the event of compulsory return to Syria . As appears from the determination of the First-tier Tribunal (the “ FtT ”), the directions which the Appellant was challenging proposed to remove him to the PNA. For this reason it was conceded on his behalf that the asserted fear of persecution in Syria was irrelevant. The Judge recorded the Appellant’s case in the following terms:

The Appellant challenged the Secretary of State’s most recent decision of 14 January 2014 by appeal to the FtT. In [13] of the determination the Judge helpfully reproduces the grounds of appeal:

On behalf of the Appellant, Mr Bryce formulated the central argument in concise and focused terms. The Appellant’s case rests on two provisions of the Qualification Directive. The first is Article 2(e), which provides:

In support of his argument Mr Bryce prayed in aid a passage in the opinion of Lord Hope in Regina (ST) v Secretary of State for the Home Department [2012] UKSC 12. The appeal turned mainly on the interpretation of the word “ lawfully ” in Article 32 of the Refugee Convention, which prohibits the expulsion by contracting state s of a “ refugee lawfully in their territory ”, save on grounds of national security or public order. The Supreme Court held that lawful presence, in this context, had to be determined in accordance with the municipal law of the contracting state. As a result, the consideration that the Appellant had not been given leave to enter or remain in the United Kingdom and, indeed, was deemed not to have entered the country at all, was determinative. As a result, the Appellant could not claim the protection of Article 32. The argument of Mr Bryce invoked the following passage in the opinion of Lord Hope, at [45]:

The Appellant’s case also draws attention to certain provisions in Chapter III of the Procedures Directive [2005/85/EC] and, in particular, the language in Article 23 (“ the basic principles and guarantees of Chapter II ”); the specific procedures identified in Article 24; the provisions in Article 25 relating to declaring asylum applications inadmissible; and, in particular, the “ safe third country concept ” enshrined in Article 27, which provides:

life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

the principle of non-refoulemen t in accordance with the Geneva Convention is respected;

the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

The application of the safe third country concept shall be subject to rules laid down in national legislation, including :

rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;

rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

inform the applicant accordingly; and

provide him/her with a document informing the authorities of the third country, in the language of that country, that the application has not been examined in substance.

On behalf of the Secretary of State, Mr Komorowski submitted that although a person’s status as a refugee depends on whether he would be at risk in his country of origin, whether he can be lawfully expelled will normally depend on the proposed country of destination. It was submitted that this principle operates under both the Refugee Convention and the ECHR and that it has not been altered by the Qualification Directive. It is not in dispute that if the proposed country of destination were Syria the Appellant would fall within the definition in Article 2(e) of the Directive, having regard to the evidence pertaining to the conditions prevailing there . Mr Komorowski also submitted that the only express prohibition is that which forbids non-refoulement and contended that what is not expressly prohibited is permitted. Article 21 does not enlarge Article 33 of the Refugee Convention, which enshrines the prohibition against non-refoulement . This prohibition relates to “ the frontiers of territories where his life or freedom would be threatened on account of [a Convention Reason].” Article 33, it was argued, does not preclude certain types of expulsion. Mr K omorowski further drew attention to other measures of EU Legislation in highlighting the suggested limitations of Article 2 4 of the Qualification Directive.

In resolving these issues w e consider it important to identify the overarching purposes of the Qualification Directive. These are identifiable in certain of its recitals. First, per recital (1):

We consider that a guarantee against refoulement only, rather than expulsion generally, is consistent with other EU legislation, in particular the Procedures Directive. We are satisfied that these various measures of European law co-exist harmoniously, We further hold that Article 24 of the Qualification Directive does not establish an independent right of residence in the Member State concerned. Rather, it is confined to the formalities of confirming a right of residence to those who qualify for such right. Its function is to determine the modalities whereby a right of residence otherwise existing is to be documented. Its real purpose is to ensure the practical exercise of a right where such right already exists. This is achieved by providing that a residence permit must be issued “ as soon as possible ” , by prescribing its minimum duration ( one year ) and by stipulating that it be renewable.

As regards the Procedures Directive, (Footnote: ¹) we draw attention to, firstly, its full title:

We further conclude that the relatively open textured provisions of Articles 1 and 8 of the Lisbon Charter add nothing to the Appellant’s case. As regards Article 1, the issue in this appeal is not whether the Appellant is entitled to have his human dignity respected and protected. There is no evidential basis for finding that this right, enshrined in Article 1, will be infringed in the event of the Appellant’s return to the PNA . As regards Article 18, the issue in this appeal is not whether the Appellant is entitled to asylum. Rather, as appears from [5] above, the case which he made on appeal to the FtT was that he qualifies for subsidiary protection under Article 15(c) of the Qualification Directive. We would add, in any event, that in our judgment Article 18 of the Charter does not extend the substantive provisions of the Refugee Convention and its Protocol.

There is no issue in this appeal relating to the treatment which the Appellant can expect to receive in the event of being returned to PNA. For this reason we consider that the various decisions relating to the Palestinian territories, the most recent whereof is HS (Palestinian – Return to Gaza ) Palestinian Territories CG [2011] UKUT 124 [IAC], do not bear on the issues. While we are conscious that the effect of some of the decisions belonging to this field is that the occupied Palestinian t erritories do not have the status in international law of a state and do not control their own borders, we fail to see how this promotes the Appellant’s case , which encompasses a concession that he will not be at risk of proscribed treatment in the event of being repatriated to the PNA.

We refer to the question of law formulated by the Lord Ordinary, set out in [2] of this decision. For the reasons elaborated above we would answer this question in the negative. We find no error of law in the decision of the FtT and dismiss this appeal accordingly.