UK - HA v The Secretary of State for the Home Department, Upper Tribunal, 28 May 2015
| Country of Decision: | United Kingdom |
| Country of applicant: | Palestinian Territory Syria , |
| Court name: | Upper Tribunal (Immigration and Asylum Chamber) |
| Date of decision: | 28-05-2015 |
| Citation: | HA (Article 24 Qualification Directive) Palestinian Territories [2015] UKUT 00465 (IAC) |
Keywords:
| Keywords |
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Country of former habitual residence
Description
The country in which a stateless person had resided and where s/he had suffered or fears s/he would suffer persecution if s/he returned. For the purposes of the Qualification Directive, “country of origin” means, for stateless persons, the country or countries of former habitual residence. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Stateless person
Description
Person who is not considered as a national by any State under the operation of its law. This includes also a person whose nationality is not established. |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
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Protection
Description
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. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Nationality
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. Nationality can be defined generally as the legal bond between a person and a State which does not indicate the person's ethnic origin. According to the Qualification Directive, when considered as a reason for persecution, the concept of nationality is not confined to citizenship or lack thereof and, in particular, includes membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State |
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Residence document
Description
“any authorisation issued by the authorities of a Member State authorising a third-country national to stay in its territory, including the documents substantiating the authorisation to remain in the territory under temporary protection arrangements or until the circumstances preventing a removal order from being carried out no longer apply, with the exception of visas and residence authorisations issued during the period required to determine the responsible Member State as established in this Regulation or during examination of an application for asylum or an application for a residence permit” |
Headnote:
The Appellant appealed to the Upper Tribunal on the ground that he qualified for subsidiary protection under Article 2(e) and (f) of the Qualification Directive and was therefore entitled to a residence permit under Article 24(2) of the Qualification Directive.
In dismissing the appeal, the Tribunal found that: (a) Article 24 of the Qualification Directive does not confer a substantive right of residence in the member state concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented, and (b) the Procedures Directive is a truly adjectival instrument of EU legislation which does not create any substantive rights in the realm of asylum or subsidiary protection.
Facts:
The Appellant originates from the Palestine National Authority (the “PNA”) but was habitually resident in Syria, where he lived with his family and where he was employed. The Appellant and his family had been granted refugee status in Syria. He entered the UK unlawfully in November 2007 and claimed asylum. The application for asylum was refused in 2010 and directions were made for the Appellant’s removal to the PNA. The Appellant appealed this direction and this was dismissed on all grounds by the First-tier Tribunal. Critical to this decision was the fact that the Appellant asserted a fear of persecution in Syria but was challenging a direction for his removal to the PNA. The Appellant did not assert that he would face persecution in the PNA.
The Appellant’s initial application and appeal were followed by an unsuccessful petition for judicial review, a series of rejected representations to the Secretary of State for the Home Department (the “Secretary of State”) and a further appeal which was dismissed.
In 2014, the Appellant made a further representation to the Secretary of State which was rejected on the basis that it did not constitute a fresh claim. The Appellant then challenged the Secretary of State’s decision before the First-tier Tribunal on the grounds that he was entitled to refugee protection due to being formerly habitually resident in Syria and stateless and therefore facing a real risk of serious harm for imputed opposition to the Syrian state due to his Palestinian origin under Articles 2 and 3 Refugee Convention and Article 15(c) Qualification Directive.
The First-tier Tribunal held on appeal that the Appellant did not fall within the scope of subsidiary protection under Article 15(c) of the Qualification Directive as the Appellant’s case was to be measured against his removal to Palestine rather than Syria, which was not proposed. His case did not show that he qualified for protection against that outcome.
The Appellant was then granted leave to appeal to the Upper Tribunal (the “Tribunal”) given that the case gave rise to an “important point of principle”.
The Appellant submitted to the Upper Tribunal that he qualified for subsidiary protection under Article 2(e) and (f) Qualification Directive and was therefore entitled to a residence permit under Article 24(2).
In presenting the case, the Appellant drew the attention of the Upper Tribunal to: (a) the opinion of Lord Hope in Regina (ST) v Secretary of State for the Home Department [2012] UKSC 12, where it was found that the Qualification Directive in some respects goes further than the Refugee Convention due to the requirement under Article 24(2) to issue a residence permit as soon as possible where an applicant qualifies as a refugee; (b) Articles 23, 24, 25 and particularly 27 of the Procedures Directive which relates to the ‘safe third country concept’; and (c) Articles 1 and 18 of the Charter of Fundamental Rights of the European Union (the “Lisbon Charter”) relating to the protection of human dignity and the right of asylum.
In reply, the Secretary of State submitted that whether a person can be lawfully expelled normally depends on the proposed country of destination (as operates under the Refugee Convention and ECHR) and this was not altered by the Qualification Directive. The Secretary of State further submitted that the only express prohibition for expulsion is that which forbids non-refoulement (under Article 21 of the Qualification Directive and Article 33 of the Refugee Convention) and submitted that what is not expressly prohibited is permitted.
Decision & reasoning:
The Tribunal looked to the overarching purposes of the Qualification Directive, taking into account recitals 1, 6, 10 and 25 of the Qualification Directive. The Tribunal concluded that the Qualification Directive contemplates the co-existence of the Refugee Convention and ECHR and that Article 24 of the Qualification Directive does not establish an independent right of residence in the Member State concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented and that its purpose is to ensure the practical exercise of a right where such right already exists (e.g. by providing that a residence permit must be issued as soon as possible).
Addressing the Appellant’s reliance on the Procedures Directive, the Tribunal found that it is only an adjectival instrument which does not create any substantive rights in the realm of asylum or subsidiary protection and therefore did not advance the Appellant’s case.
Finally, the Tribunal found that Articles 1 and 18 of the Lisbon Charter did not add anything to the Appellant’s case given that: (a) there is no evidence that the Appellant’s human dignity would be infringed by returning to the PNA, and (b) the issue in the appeal is not whether the Appellant is entitled to asylum, but rather that the Appellant qualifies for subsidiary protection.
Outcome:
Appeal dismissed.
Observations/comments:
This case summary was written by Linklaters LLP.