United Kingdom - M.I (Palestine) v Secretary of State for the Home Department, 31 July 2018
| Country of Decision: | United Kingdom |
| Country of applicant: | Palestinian Territory |
| Court name: | Court of Appeal (Civil Division) On Appeal From The Upper Tribunal (Immigration And Asylum Chamber) (Lady Justice King and Lord Justice Flaux) |
| Date of decision: | 31-07-2018 |
| Citation: | M.I (Palestine) v Secretary of State for the Home Department [2018] EWCA Civ 1782 |
Keywords:
| Keywords |
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Humanitarian considerations
Description
“Factors relevant to the consideration of a decision to grant humanitarian protection. Humanitarian protection is a concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. Protection involves creating an environment conducive to respect for human beings, preventing and/or alleviating the immediate effects of a specific pattern of abuse, and restoring dignified conditions of life through reparation, restitution and rehabilitation.” The grant of permission tothird country nationals or stateless persons toremain in Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian groundsis not currently harmonised at a European level. However per Art. 15 Dublin II Reg., even where it is not responsible under the criteria set out in the Regulatiosn, aMember Statemay bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
Court ruled upon the correct test to use when considering returns to Palestine.
Facts:
The appellant, a national of the Occupied Palestinian Territories, arrived in the UK in 2013. He claimed asylum but his claim was refused in 2014.
The appellant’s wife was pregnant during the process and at the time of the current judgement the child was almost three years old. The wife also suffered depression and anxiety disorder and had suffered PTSD, being prescribed Fluoxetine. She was viewed as having a high risk of deterioration and had suicidal thoughts.
He appealed to the First-Tier tribunal which dismissed his appeal on all grounds, finding that his claim that he was in need of international protection because of the risk of persecution on return to Gaza lacked credibility.
He then appealed to the Upper Tribunal who found that there had been an error of law by the First-tier Tribunal Judge in considering Article 3 of the ECHR, in failing to engage with the country evidence which was before him. However, after hearing further evidence and submissions the Judge dismissed the appeal.
The appellant then appealed to the Court of Appeal.
Decision & reasoning:
The main issue in question was whether the Court should only apply the test of N v the United Kingdom or if it should apply the test of Sufi & Elmi v United Kingdom.
The N test requires the court to use a high threshold, which would only allow very exceptional cases where the grounds against removal were compelling. Effectively limiting it to “deathbed” cases.
The Sufi & Elmi test is less stringent. Here if the humanitarian situation in the country of origin was predominantly due to the direct and indirect actions of the parties to the conflict there, the “very exceptional circumstances” test in N is not applicable.
The Court found that the Deputy Upper Tribunal Judge misdirected himself by only applying the N test and failing to apply the Sufi & Elmi test.
After considering the country evidence put forward, the Court found that is sufficiently arguable that the conditions in Gaza are and were attributable to the direct and indirect actions of the parties to the conflict within the meaning of Sufi & Elmi.
The Court further found that the Country Guidance case for Palestine from 2011, is somewhat out of date as it pre-dates the decision in Sufi & Elmi and the 2014 military operation in Palestine which had had a serious impact on the population and the infrastructure.
Outcome:
Appeal granted.
Subsequent proceedings:
The judgment was not appealed by the government and is now final.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - N v United Kingdom (Application no. 26565/05) |
| ECtHR - Sufi and Elmi v. the United Kingdom, Application Nos. 8319/07 and 11449/07 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - D. v. The United Kingdom, Application No. 30240/96, 2 May 1997 |
Other sources:
GS (India) v SSHD [2015] EWCA Civ 40; [2015] 1 WLR 3312 and SSHD v Said [2016] EWCA Civ 442; [2016] Imm AR 5; N v SSHD [2005] UKHL 31; HS (Palestinian-return to Gaza) Palestinian Territories CG [2011] UKUT 124 (IAC); MOJ and others (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC).