Hassan Mahmud Al-khatib Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Brodie,Lord Bracadale |
| Neutral Citation | [2016] CSIH 85 |
| Date | 18 November 2016 |
| Docket Number | XA112/15 |
| Court | Court of Session |
| Published date | 18 November 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 85
XA112/15
Lord Brodie
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD BRODIE
in the appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007
by
HASSAN MAHMUD AL-KHATIB
Appellant
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Appellant: K J Campbell QC, Bryce; McGill & Co
Respondent: Komorowski; Office of the Advocate General
18 November 2016
The Appeal
[1] This is an appeal under section 13 of the Tribunals, Court and Enforcement Act 2007 against a decision of the Upper Tribunal (Immigration and Asylum Chamber), as constituted by the President and Upper Tribunal Judge Macleman, dated 10 July 2015 and promulgated on 31 July 2015. The issue it raises is whether Council Directive 2004/83/EC ( “the Qualification Directive”) confers on a person unlawfully present in the United Kingdom a free-standing entitlement to leave to remain where that person is stateless and would face a real risk of suffering serious harm if returned to his country of former habitual residence (here Syria) but where the Secretary of State (hereinafter “the respondent”) proposes to remove him to a place where he faces no such risk (here the territory of the Palestinian National Authority (“the PNA”)). The issue turns solely on the proper interpretation of the relevant instruments. It falls to be determined in a case where, for the purposes of argument, it is accepted that the appellant is not someone to whom the Geneva Convention of 1951 Relating to the Status of Refugees, as amended by the Protocol to the Convention of 1967 (“the Refugee Convention”, otherwise “the Geneva Convention”) applies by virtue of Article 1D of the Convention, as interpreted in the opinion of the Advocate-General (Sharpston) in Bolbol v Bevándorlási és Állampolgársági Hivatal Case C-31/09 [2012] All ER (EC) 469, [2012] INLR 296.
[2] It is the appellant’s contention that, as a Palestinian formerly habitually resident in Syria and present in the United Kingdom since 2007, he is entitled to subsidiary protection, and therefore leave to remain, by virtue of the Qualification Directive. He supports that contention by reference to Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”). The respondent disputes that that is the effect of the respective directives in circumstances where it is proposed to remove the appellant to the territory of the PNA.
[3] Both parties submit that their respective interpretations and the consequent applications of the relevant provisions of the Qualification Directive are acte clair. Accordingly neither has suggested that it is necessary to make a reference to the Court of Justice in terms of Article 267 of the Treaty on the Functioning of the European Union.
The Appellant’s Immigration History
[4] The appellant’s date of birth is variously stated in the material before the court as being either 20 or 28 March 1985. He or at least his immediate family originates from the territory of the PNA (albeit that the appellant avers that he has lived in Syria for his whole life) and he is accordingly described in his Appeal as stateless, given that Palestine is not a state recognised in international law (cf Said (Article 1D: interpretation) [2012] UKUT 00413 (IAC) para 2). A family registration card including the appellant was issued by the United Nations Relief and Works Agency (“UNRWA”) in Gaza in February 2004. He therefore can be taken as having been in receipt of or had available protection and assistance from UNRWA. Prior to his unlawful entry into the United Kingdom in November 2007, the appellant was habitually resident in Syria where he had been granted refugee status. On arrival in the United Kingdom the appellant claimed asylum. That claim was refused, as was an appeal (the “first appeal”) against that decision by determination promulgated on 20 May 2010. The appellant’s account of persecution in Syria was disbelieved. The appellant’s application to appeal the determination of 20 May 2010 to the Upper Tribunal was refused. Following an application to the Court of Session for judicial review, further representations to the respondent, dated 27 March 2012, were submitted on behalf of the appellant under reference to paragraph 353 of the Immigration Rules. The respondent’s response to these representations is contained in her decision letter of 14 January 2014 in terms of which she refused to recognise the appellant as a refugee under the Refugee Convention (by reason of his having left the protection available to him at the time in Syria of his own volition – applying Bobol); did not accept that the appellant qualified for subsidiary protection under the Qualification Directive; determined that to remove the appellant from the United Kingdom would not contravene his human rights; and having considered whether the further submissions constituted a fresh claim, decided under reference to paragraph 353B of the Immigration Rules that there were no exceptional circumstances which meant that removal from the United Kingdom was no longer appropriate. The notice of the respondent’s decision to remove the appellant from the United Kingdom was served on the appellant on 16 January 2014. As we have already observed, the respondent proposes to remove the appellant to the territory of the PNA. The Upper Tribunal notes in its decision of 10 July 2015 that there have been some 200 such enforced removals from the United Kingdom during the past 10 years.
[5] The appellant appealed the respondent’s decision of 14 January 2014. The appellant explains in his note of argument for this court that that appeal arose under sections 82 and 84 of the Nationality Immigration and Asylum Act 2002 as they stood before amendment by the Immigration Act 2014, by virtue of the transitional provisions contained in Article 9(1)(d) of the relevant commencement order, namely SI 2014/2771, as amended by SI 2015/371, in respect that the removal directions appealed against were made before 6 April 2015. The contention on behalf of the appellant was that the decision appealed against was not in accordance with law and that therefore the appeal should be allowed under section 84(1)(e).
[6] Although founded on in the grounds of appeal, before the First-tier Tribunal it was conceded on behalf of the appellant that he did not qualify for asylum under the Refugee Convention. He gave evidence that his father had arranged to obtain UNRWA registration cards for all members of the family. They had then been living in Syria. Rather than being persecuted in Syria, as the appellant had originally claimed, the immigration judge in refusing the appellant’s first appeal on 20 May 2010 found that the family had been granted refugee status in Syria. The appellant had left Syria and come to the United Kingdom because he wanted a better life (what was described in the note of argument for the appellant as “avowedly opportunistic reasons”). Nevertheless, it was contended that, quite independent of the Refugee Convention, the appellant was entitled to subsidiary protection by virtue of the Qualification Directive. The First-tier Tribunal did not accept that contention and dismissed the appellant's appeal on that ground (and also under reference to paragraph 276ADE of the Immigration Rules and Article 8 of the European Convention on Human Rights) by determination of 5 March 2014.
[7] The appellant applied for permission to appeal the determination of 5 March 2014. Permission to appeal was refused by the Upper Tribunal on 8 May 2014. The appellant presented an application for judicial review seeking reduction of that refusal which was determined of consent in favour of the appellant’s application on 14 August 2014. Permission to appeal to the Upper Tribunal was then granted by the Vice President on 15 September 2014.
[8] Before the Upper Tribunal the appellant’s case was founded on the Qualification Directive, as reinforced by provisions of the Procedures Directive and Articles 1 and 18 of the Charter of Fundamental Rights of the European Union. The Upper Tribunal refused the appellant’s appeal in terms of decision and reasons dated 10 July 2015 and promulgated on 31 July 2015. Permission to appeal to this court was then granted by the President of the Upper Tribunal (Immigration and Asylum Chamber) on 22 October 2015.
The Refugee Convention
[9] The appellant does not found on the Refugee Convention but it featured in argument as bearing on the effect to be given to the Qualification Directive.
[10] As is familiar, the United Kingdom, together with another 143 Contracting States, including all the member states of the European Union, is a signatory to the Refugee Convention. The website of the United Nations High Commission for Refugees states that the core principle of the Refugee Convention is “non‑refoulement”, that is that a refugee should not be returned to a country where they face serious threats to their life or freedom for certain specified reasons (otherwise “persecution”). That principle finds particular expression in Articles 32 and 33 of the convention which, in so far as relevant, provide:
“32.1 The Contracting States shall not expel a refugee lawfully in their territory, save on grounds of national security or public order
…
33.1 No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion
…”
[11] In terms of Article 1A of the convention the term “refugee” shall apply to any person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social...
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Upper Tribunal (Immigration and asylum chamber), 2022-01-24, PA/09415/2018
...and Borders Bill 2021-22 (HC Bill 187). I am satisfied also that the Qualification Directive has direct effect – see Al-Khatib v SSHD [2016] CSIH 85 at The Qualification Directive is a measure of European Union law having direct effect and therefore capable of imposing obligations on the re......