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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Moses,Lord Justice Longmore,and,Lord Justice Sullivan,Lord Justice Pill
Judgment Date18 Jun 2010
Neutral Citation[2010] EWCA Civ 696,[2010] EWCA Civ 969
Docket NumberCase No: C1/2009/1250,Case No: C5/2008/2129

[2010] EWCA Civ 696

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM IMMIGRATION TRIBUNAL

Immigration Judge Lobo & Immigration Judge Cohen

Before: The Right Honourable Lord Justice Pill

The Right Honourable Lord Justice Longmore

and

The Right Honourable Lord Justice Sullivan

Case No: C5/2008/2129

Between
FA (Iraq)
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Raza Husain QC & Mr Nick Armstrong (instructed by Refugee and Migrant Justice) for the Appellant

Mr Alan Payne (instructed by Treasury Solicitor) for the Respondent

Hearing dates: 20 th May 2010

Lord Justice Longmore

Lord Justice Longmore: Introduction

1

The question of law raised by this appeal is whether, if a person has made a claim for asylum and both that claim and his related claim for humanitarian protection have been rejected by the Secretary of State but he has been given leave to enter or remain in the United Kingdom for over a year, any appeal against those refusals of the Secretary of State has to be confined to the asylum claim or can include an appeal in relation to the claim for humanitarian protection.

2

A person is a refugee and, therefore, entitled to asylum if, (in the words of Article 1 of the Geneva Convention) owing to well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, he 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.

3

A person not entitled to refugee status may nevertheless be eligible for “subsidiary” protection, pursuant to the Qualification Directive (2004/83/EC) (“the Directive”), if substantial grounds have been shown for believing that, if returned to his country of origin, he would face a real risk of suffering serious harm and is unable or, owing to such risk, unwilling to avail himself of the protection of that country. This is the result of a combination of Article 18 of the Directive and the definition of persons eligible for subsidiary protection in Article 2 as (relevant) persons who, if returned to their country of origin, would face a real risk of suffering serious harm. Article 15 of the Directive defines serious harm as consisting of

“(a) death penalty or execution; or

(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international and internal armed conflict.”

4

The effect of the Directive has been incorporated into the Immigration Rules under the head of “humanitarian protection”. Para 339C of the Immigration Rules (“the Rules”) is as follows:—

“339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;

(ii) he does not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if he returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself of the protection of that country; and

(iv) he is not excluded from a grant of humanitarian protection.

Serious harm consists of:

(i) the death penalty or execution;

(ii) unlawful killing;

(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.”

5

FA asserts that, if returned to Iraq, he will face a real risk of suffering serious harm as defined in the Directive and the Rules. The question is whether he was entitled to raise that question by way of appeal at the same time as he appealed the decision of the Secretary of State to refuse him asylum.

6

The Secretary of State submits that by reason of our domestic statutory provisions FA cannot raise this question in the course of his asylum appeal but must wait until an instruction for his removal is given (if indeed it is ever given). FA submits that the matter can and should be decided along with his appeal against the refusal of asylum.

The Facts

7

FA was born in Kirkuk in Iraq on 21 st October 1991. He arrived in the United Kingdom on 21 st August 2007 as an unaccompanied minor aged 15 and applied for asylum. The Secretary of State considered his claim for asylum and also considered whether he qualified for humanitarian protection in accordance with paragraph 339C of the Rules. By letter of 9 th October 2007 he rejected the claim for asylum and decided that FA did not qualify for humanitarian protection. He therefore refused the asylum claim pursuant to para 336 of the Rules and refused the claim for humanitarian protection pursuant to para 339F of the Rules. However, in accordance with the Secretary of State's policy in relation to unaccompanied minors, he granted FA discretionary leave to enter and remain in the United Kingdom until 21 st April 2009 when FA reached the age of 17 years and 6 months. The formal notice of decision accompanying the letter informed FA that he was entitled to appeal the decision and enclosed a form of notice of appeal. It continued with the usual “ONE STOP WARNING” requiring all grounds on which FA claimed to be permitted to enter or remain in the United Kingdom to be stated in that notice as well as any grounds relied on as showing that FA should not be removed from or should not be required to leave the United Kingdom. If any such grounds existed but were not stated and subsequently relied on in an application to the Secretary of State, the applicant might not be able to appeal against any refusal.

8

FA did appeal but that appeal was dismissed by Immigration Judge Jhirad on 28 th November 2007 “on asylum grounds and humanitarian protection grounds”. On 21 st December 2007 Senior Immigration Judge Mather ordered reconsideration because it appeared that Immigration Judge Jhirad had not considered whether there was a risk of serious harm pursuant to the Qualification Directive and para 339C of the Rules. When the matter subsequently came before Immigration Judge Lobo and Immigration Judge Cohen they concluded, in a determination dated 23 rd June 2008, that FA's appeal was, by virtue of section 83 of the nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), limited to his asylum claim. They added in para 7 of the determination:—

“The appellant cannot appeal at this moment of time on either human rights or humanitarian protection as he is not being removed from the United Kingdom and is therefore not at risk.”

The Statutory Provisions

9

Before the enactment of the 2002 Act there was no express provision for a right of appeal against a refusal of asylum if the applicant had nevertheless been granted leave to remain. Section 8 of the Immigration Appeals Act 1993 gave rights of appeal to persons refused leave to enter or granted limited leave to enter or remain, as also to persons in respect of whom the Secretary of State had decided to make (or refused to revoke) a deportation order, as also in cases when certain directions for removal had been given. This court nevertheless construed section 8 of that 1993 Act as entitling a person who had been refused asylum to appeal against that refusal, even if he had leave to remain, see Saad v Secretary of State for Employment [2002] I.A.R 471.

10

The position on appeals has now been clarified by the much more detailed provisions of the 2002 Act. Section 82 lists a whole host of “immigration decisions” in respect of which, by virtue of section 82(1) a person can appeal, including

“(d) refusal to vary a person's leave to enter or remain”

and

“(g) a decision that a person is to be removed from the United Kingdom by way of directions under” various sections of the Immigration and Asylum Act 1999 relating to the removal of persons unlawfully in the United Kingdom.

Section 83 gives an express right of appeal to a person whose claim for asylum has been rejected if he, like FA, has been granted leave to enter or remain for a period exceeding a year. Section 84 then sets out the available grounds of appeals:

84 Grounds of Appeal

(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds:—

(a) that the decision is not in accordance with immigration rules;

(b) that the decision is unlawful; by virtue of section 19B of the Race Relations Act 1976 (c 74) [or Article 20A of the Race Relations (Northern Ireland) Order 1997] (discrimination by public authorities);

(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;

(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;

(e) that the decision is otherwise not in accordance with the law;

(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;

(g) that removal of...

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