UK - Court of Appeal , 9 August 2008, MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304

 

The Court considered that Art 12.4 of the International Covenant on Civil and Political Rights (ICCPR) which provides that “{n]oone shall be denied entry into his own country”. It noted that “[t]he Human Rights Committee established under Art 28 of the Covenant has opined that “his own country” is broader in scope than “country of his nationality” and embraces “at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien”.  It refers to “close and enduring connections”: General Comment 27, Freedom of Movement (Art 12), 2 November 1999.  Commentators have suggested the possible relevance of Art 12 in the context of Palestinians seeking to return to the West Bank.”  However, the Court of Appeal held that “this material does not advance the applicant’s case under the Refugee Convention, nor does it provide a right enforceable by itself in the [Tribunal].  Moreover, even if the broader construction of “his own country” is correct, it is difficult to see how it can avail someone who has eschewed “close and enduring connections” and “special ties”.” 

 

The Court also considered the Qualification Directive. It noted that Art 9 “provides that acts of persecution within the meaning of Art 1A of the Refugee Convention must be sufficiently serious to constitute a serious violation of human rights or an accumulation of various measures “which is sufficiently severe as to affect an individual in a similar manner”. Art 9.2 states that acts of persecution can take the form of:  “(b) legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner.” However, in applying these provisions to the facts of the case, the Court held that “they do not assist the applicant because the requisite level of severity has not been established.” 

 

The Court also found on the facts that Art 3 of the European Convention on Human Rights would not be breached.

 

No consideration was given as to whether the applicant was excluded from the 1951 Convention by operation of Art 1D as a result of the Court of Appeal’s previous decision in El-Ali [2002] EWCA Civ 1103 (separate summary in this database).

 

Professor Hathaway: The Law of Refugee Status, pp 62-63

 

General Comment 27, Freedom of Movement (Art 12), 2 November 1999

 

Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights, 2nd ed, 2004, para 12.37

 

Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary, 2nd ed, 2005, pp 287-288

 

Mervyn Jones, Who are British Protected Persons? (1945) 22 BYIL 122

 

Weis, Nationality and Statelessness in International Law, 2nd ed. 1979, pp 117 et seq