FA (Iraq) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLORD KERR
Judgment Date25 May 2011
Neutral Citation[2011] UKSC 22
Date25 May 2011
CourtSupreme Court
FA (Iraq) (FC)
(Respondent)
and
Secretary of State for the Home Department
(Appellant)

[2011] UKSC 22

before

Lord Phillips, President

Lord Hope, Deputy President

Lord Brown

Lord Kerr

Lord Dyson

THE SUPREME COURT

Easter Term

On appeal from: [2010] EWCA Civ 696

Appellant

Tim Eicke QC

Alan Payne

(Instructed by Treasury Solicitors)

Respondent

Raza Husain QC

Takis Tridimas

Nick Armstrong

(Instructed by Immigration Advisory Service)

LORD KERR, DELIVERING THE JUDGMENT OF THE PANEL

Introduction

1

FA is an Iraqi national who was born on 21 October 1991. He arrived in the United Kingdom on 21 August 2007 when he was 15 years old. He was not accompanied. He applied for asylum. On 9 October 2007 the Secretary of State refused the application. The evidence that FA had supplied in support of his claim was deemed not to be credible.

2

Having refused FA asylum, the Secretary of State then considered whether he qualified for humanitarian protection and/or discretionary leave to remain in the United Kingdom. Humanitarian protection in this context is the domestic means of providing the 'subsidiary protection' which Council Directive 2004/83/EC of 29 April 2004 (the Qualification Directive) requires to be given to certain third country nationals or stateless persons. It was decided that FA did not qualify for humanitarian protection. He was granted discretionary leave to remain, however, limited in time until he was seventeen years and six months old.

3

As he was entitled to under section 83(2) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), FA appealed to the Asylum and Immigration Tribunal (AIT) against the refusal of his claim for asylum. Included in the grounds of appeal, however, were claims that FA's rights under articles 2, 3 and 5 of the European Convention on Human Rights and Fundamental Freedoms would be contravened if he was removed from the United Kingdom to Iraq. It was also averred that he might suffer serious harm as defined in the Qualification Directive. FA's appeal was dismissed by Immigration Judge (IJ) Jhirad. The dismissal was said to be on asylum grounds and humanitarian protection grounds.

4

FA applied to AIT for a reconsideration of his appeal. Senior Immigration Judge (SIJ) Mather ordered that there should not be reconsideration of his appeal on asylum grounds but that the issue of whether there would be a "serious and individual threat to his life by reason of indiscriminate violence during internal armed conflict" should be reconsidered. SIJ Mather felt that IJ Jhirad may not have considered whether there was a risk of serious harm under the Qualification Directive and para 339 of the Immigration Rules which incorporates into domestic law the subsidiary protection provisions of the Qualification Directive.

5

When the reconsideration application came on for hearing, AIT (IJs Lobo and Cohen) held that the original appeal before IJ Jhirad should have been confined to the refusal of the asylum claim. In their view, no appeal was available to FA in relation to human rights claims or humanitarian protection grounds under section 83 of the 2002 Act. That section provided for an appeal against the refusal of the application for asylum only. On that account, AIT substituted IJ Jhirad's decision with a dismissal of the original appeal on asylum grounds only.

6

The focus of FA's appeal against the decision of AIT to the Court of Appeal was initially on the construction of sections 82 to 84 of the 2002 Act and the question whether the decision of AIT deprived him of an effective judicial remedy against an adverse act of the administration, contrary to general principles of European Union law. Shortly before the hearing of the appeal, a supplementary written submission was presented which developed the argument that the principle of equivalence (a general principle of EU law) required that claims based on EU law must not be subject to rules which are less favourable than those based on claims which have national law as their source. It is this argument that principally preoccupied the Court of Appeal and it held centre stage in the appeal before this court.

7

Section 82 lists a number of immigration decisions from which, by virtue of section 82 (1), an appeal will lie. Among these are a refusal to vary a person's leave to enter or remain (section 82 (2) (d)) and a decision that a person be removed from the United Kingdom pursuant to various directions (section 82 (2) (g)). FA could not have recourse to these because there had not been a relevant refusal to vary the leave to remain that he had been given and there had not been, at the time that the matter came before AIT (or for that matter the Court of Appeal), a decision to remove him. None of the other decisions listed in section 82 (2) was relevant to his situation. (As it happens on 11 January 2011, the Secretary of State rejected FA's application for an extension of his discretionary leave so that he now has a right of appeal under section 82(1) of the 2002 Act.)

8

Section 83 of the Act gives a specific right of appeal against a refusal of asylum to a person who, like FA, has been granted leave to enter or remain for a period exceeding one year. It was this right of appeal that FA had exercised in appealing to AIT. Before the Court of Appeal Mr Raza Husain QC, for FA, had argued that, by resort to normal canons of construction, section 83 could and should be interpreted as including a right of appeal against a humanitarian protection decision, particularly in light of the definition of 'asylum claim' in section 113 of the 2002 Act. That argument was rejected by the Court of Appeal and it has not been renewed before this court. The Court of Appeal held that, although a section 83 appeal was a status appeal (i.e. one that depended on the status of the person making the appeal as opposed to the species of decision appealed against) it was nevertheless restricted to a particular class of persons, namely those who have been given leave to remain for at least twelve months. Moreover, by virtue of section 84 (3) of the 2002 Act, the only grounds on which the appeal could be taken were that removal of the person appealing would breach the United Kingdom's obligation under the Refugee Convention. These considerations meant that section 83 could not be construed on any conventional basis of interpretation as extending to an appeal against a humanitarian protection decision.

9

Mr Husain's alternative submission was accepted, however. In broad terms it was to the effect that the principle of equivalence required that a right of appeal against the humanitarian protection decision be recognised since the lack of an appeal would mean that this claim, based as it was on EU law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Court of Appeal held that the definition section (113 (1) of the 2002 Act,) which provides that 'asylum claim' means "a claim made by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention" would have to have the words "and/or the Qualification Directive 2004/83/EC" added to it. A similar addition to section 84 (3) was required so as to enlarge the grounds on which the appeal might be brought.

10

The Secretary of State appeals against this decision on the ground that there is no purely domestic measure against which a comparison of the rules applicable to claims for humanitarian protection can be made. It is argued that such claims have far closer similarities to those that are made under the Human Rights Act 1998. The Secretary of State further contends that the mooted comparators (the asylum claim and the humanitarian protection claims) both have their origin in Chapter VII of the Qualification Directive. Both therefore are rooted in EU law. They do not spring from different sources and since that is the essential requirement for the activation of the equivalence principle, it cannot be prayed in aid in this instance.

The procedural autonomy of member states

11

In the absence of EU law stipulating a particular form of remedy to ensure protection of EU rights, it is for member states to decide which courts or tribunals will have jurisdiction to give effect to those rights and to prescribe the procedural conditions necessary for their enforcement - article 19(1) of the Treaty on European Union (TEU), Case 33/76 Rewe-Zentralfinanz eG v Landwirtschaftskammer für das Saarland (Rewe I) [1976] ECR 1989, Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 and Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5, [2001] 2 AC 455. This is known as the procedural autonomy of member states.

12

Procedural autonomy is subject to two qualifications. National rules may not render the exercise of rights conferred by EU law virtually impossible to achieve or excessively difficult to access. This is known as the principle of effectiveness. Nor must national rules be less favourable than those governing comparable domestic actions. This is the principle of equivalence.

The equivalence principle

13

It is no longer suggested in this appeal that FA does not have effective access to his humanitarian protection or subsidiary rights. The effectiveness principle is no longer in issue. The critical question now is whether the equivalence principle requires, as the Court of Appeal decided it did, that a right of appeal must be available against the decision to dismiss FA's application for humanitarian protection. This, in turn, depends on whether FA can demonstrate that there is a comparable domestic right which is subject to more favourable rules than is his humanitarian protection right.

14

In the particular circumstances of this case, this...

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