Dang (Refugee – query revocation – Article 3)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Gill |
| Judgment Date | 17 January 2013 |
| Neutral Citation | [2013] UKUT 43 (IAC) |
| Date | 17 January 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 43 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, Vice President
Upper Tribunal Judge Gill
For the Appellant: Ms. E. Daykin, of Counsel, instructed by Ennon & Co. Solicitors.
For the Respondent: Ms. C. Gough, Senior Home Office Presenting Officer.
Dang (Refugee — query revocation — Article 3)
A decision to revoke or refuse to renew a grant of asylum under paragraph 339A of the Immigration Rules only relates to the individual's status under the Qualification Directive (European refugee status) and not his status under the Refugee Convention; further, it can only apply to cases in which the asylum application was made on or after 21 October 2004 and at least one of the provisions in sub-paragraphs (i)–(vi) of para 339A of the Immigration Rules applies.
If an individual was granted refugee status some time ago, there is no legal or evidential presumption that, for so long as he is a refugee under the Refugee Convention, removal would be in breach of Article 3. Whilst the past may be relevant in shedding light on the current situation and the prospective Article 3 risk, it remains the case that the question whether there is a real risk of Article 3 ill-treatment must be answered at the date of the hearing and is forward-looking.
The Appellant is a 35-year old national of Vietnam who has lived in the United Kingdom since the age of twelve, having left Vietnam at the age of eight and lived in Hong Kong with his family for about four years. He arrived in the United Kingdom on 4 July 1989 with his father and older siblings (a brother and a sister). His father was granted refugee status. It appears that the UK Border Agency no longer has any information about the reasons why the Appellant's father (who has since died) was granted refugee status. Ms. Daykin informed us that her papers indicate that the asylum claim of the Appellant's father was processed and decided in Hong Kong. Although the Appellant was also granted refugee status, it is clear that he did not have an independent asylum claim; he was dependent on his father's asylum claim. His siblings and his father were later naturalised as British citizens. The Appellant's application of 24 April 1996 for naturalisation as a British Citizen was refused on 24 June 1999 on the ground of his character.
The Appellant has been granted permission to appeal against the determination of the First-tier Tribunal (Designated Judge of the First-tier Tribunal J F W Phillips and Mr. M E Olszewski JP) (hereafter the panel) dismissing his appeal against a deportation order made against him on 6 October 2011 by virtue of section 32(5) of the U.K. Border Acts 2007. The deportation order followed the Appellant's conviction on 30 March 1999 at the Central Criminal Court of murder and wounding with intent to cause grievous bodily harm for which he received sentences of life imprisonment and seven years' imprisonment respectively.
Given that the Appellant had been sentenced to a period of imprisonment of at least two years, the panel upheld the Respondent's decision to apply the presumption under section 72 of the Nationality, Immigration and Asylum Act 2002 Act (the 2002 Act), that he had been convicted by final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom. The panel further found that the Appellant had gone nowhere near rebutting the presumption that he is a danger to the community. It found that he had been convicted of a particularly serious crime and that he was a danger to the community. These findings have not been challenged on the Appellant's behalf. Accordingly, the Appellant is a person whose refoulement is not prohibited by Article 33 of the Refugee Convention. It follows that it has been established that his removal would not be in breach of the United Kingdom's obligations under the Refugee Convention.
The Respondent revoked (or purported to revoke) the Appellant's refugee status under para 339A(v) of the Statement of Changes in the Immigration Rules HC 395 (as amended) (the Immigration Rules). This mirrors the cessation clause in Article 1C(5) of the 1951 Geneva Convention relating to the Status of Refugees (the Refugee Convention), which provides that the Refugee Convention shall cease to apply to a person “ if he can no longer, because of circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality”. The panel found that the Appellant was still a refugee because the Respondent could not show that the cessation clause she sought to rely upon applied. This finding has not been challenged.
The Respondent also revoked (or purported to revoke) the Appellant's refugee status under para 339A(x) of the Immigration Rules on the ground that, having been convicted by a final judgment of a particularly serious crime, he constituted a danger to the community of the United Kingdom. The equivalent of this provision in the Refugee Convention is to be found in Article 33, which prohibits refoulement but provides, by virtue of Article 33, that the benefit of the non-refoulement provision may not be claimed by a refugee who, having convicted by a final judgment of a particularly serious crime constitutes a danger to the community of the United Kingdom. However, whilst the Refugee Convention does not give any hint that Contracting States may revoke the refugee status of the individual concerned, para 339A(x) of the Immigration Rules, which was intended to implement Article 14 of Council Directive 2004/83/EC (the Qualification Directive), provides for the individual's “ grant of asylum” to be revoked or not renewed. An issue before us (issue (a)) is whether there is an inconsistency in this respect between the two and, if so, which should prevail.
Having found that the Appellant was a danger to the community, the panel considered that the Respondent was entitled to revoke the Appellant's refugee status under para 339A(x) of the Immigration Rules. Their reasons are set out at our paragraphs 14, 15 and 16 below.
In the panel's view, the revocation of the Appellant's refugee status meant that there was no longer a presumption that the Appellant's removal to Vietnam would be in breach of his rights under Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The second issue which has arisen (issue (b)) is whether there is a presumption, for so long as a person has refugee status under the Refugee Convention, that his removal from the United Kingdom would be in breach of his rights under Article 3 of the ECHR.
Having concluded that the Appellant's refugee status had been revoked under para 339A(x) with the result (in the panel's view) that there was no presumption of risk in relation to Article 3, the panel considered that it was therefore for the Appellant to show that his removal would be in breach of Article 3 (para 46). The panel went on to consider the evidence and found that the Appellant had not shown that he was at real risk of treatment in breach of his rights under Article 3. We summarise their reasons for their conclusion at our paragraph 17 below. No challenge has been made to the panel's finding (if it was correct to place the burden the proof in relation to Article 3 on the Appellant) that he had not discharged that burden.
The panel concluded that the Appellant had not shown that he was at real risk of serious harm in Vietnam. In any event, he was excluded from humanitarian protection pursuant to para 339D of the Immigration Rules, having been convicted of a serious crime (para 48 of the determination).
The panel also found that the Appellant's removal would not be in breach of Article 8 of the ECHR. This has not been challenged on the Appellant's behalf.
It is important to appreciate that the only reason issue (a) is advanced is to lay the ground for issue (b).
It should also be noted that we are not concerned with the cessation provisions in this appeal because the panel's finding that the Respondent had not shown that para 339A(v) applied has not been challenged.
The relevant provisions are set out below:
The Refugee Convention
Article 1
“A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
…
(2) …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Article 1C
“This Convention shall cease to apply to any person falling under the terms of section A if:
(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality;
Provided that this para shall not apply to a refugee falling under section A(1) of this Article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the...
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