UK - Upper Tribunal, 13 November 2010, RR (Refugee-safe third country) Syria [2010] UKUT 422

Facts:

The applicant was a female Syrian national who was married to an Algerian. They had three children who were  Algerian nationals. She applied for asylum in the UK and her claim was dismissed. In refusing her application the Secretary of State for the Home Department indicated that she would be removed either to Syria or to Algeria, where she had spent 9 months before her arrival in the UK. The Secretary of State also relied on the applicant’s connections to Algeria through her husband and children. The applicant appealed. The Immigration Judge at first instance found that she qualified for protection as a refugee from Syria and had no prospect of protection from a third country.

The Secretary of State appealed to the Upper Tribunal. There was no challenge to the finding that the applicant had a well-founded fear of persecution for a convention reason in Syria, but the UT found that the Immigration Judge had erred in his approach to the question of the safe third country. He had reversed the burden of proof which should have remained on the applicant. He had had regard to the question of whether the applicant would be able to obtain a travel document, which was not material to the question before him. He had also erred by purporting to allow the appeal on both asylum and humanitarian protection grounds, which are mutually exclusive. The Upper Tribunal noted the absence of challenge to the findings in relation to Syria, but directed itself that the Immigration Judge’s adverse findings of fact relating alleged mistreatment in Algeria should stand. The parties agreed that the issue to be decided was the risk of ‘indirect refoulement’ from Algeria to Syria.

The fresh decision was delayed to await the decision in  Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643.

Decision & reasoning:

Applying ST (Eritrea) the only issue before the court, given the findings of fact in relation to the absence of mistreatment in Algeria, was whether the applicant was at risk of refoulment from Algeria to Syria, which would be contrary to  Art 33 of the 1951 Refugee Convention. Only if she could demonstrate that Art 33 would be breached could she succeed in her appeal.

The Upper Tribunal reviewed the evidence relating to the applicant’s personal and family history and circumstances, including her use of a false Syrian passport, the reach of the Syrian intelligence agencies, Algeria’s current practice in relation to refugees, including evidence of Algeria handing over dissidents to Syria and evidence (adduced by the Secretary of State) of co-operation between Algeria and Syria which concluded that ‘Algeria would in this context hand over opponents of the Syrian regime.’

On the basis of that evidence it was found that the applicant was at risk of indirect refoulement and so her removal would result in a breach of the Refugee Convention. The Tribunal also held that removal to Algeria would breach the applicant’s Art 3 ECHR rights although it gave no separate reasoning to support this.

Outcome:

Applicant’s appeal allowed.

Observations/comments:

The decision is preceded by a headnote which purports to summarise the principles of the case and which was possibly intended to give guidance on the application of  Art 27 of the Procedure Directive.

Although the outcome was largely determined by the facts of the case, it is clear that this determination was designed to offer guidance on the application of ST (Eritrea) and Art 27 of the Procedure Directive. This case was unusual insofar as most cases involving proposed removal to a third country involved dual or alleged dual nationality e.g. applicants from Ethiopia and Eritrea or adjacent southern Afrian states, who it was believed were entitled to nationality of the third country.