HS (Palestinian – return to Gaza)
| Jurisdiction | UK Non-devolved |
| Judge | Allen,Nichols,Mrs A J F Cross De Chavannes |
| Judgment Date | 10 June 2010 |
| Neutral Citation | [2011] UKUT 124 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 10 June 2010 |
[2011] UKUT 124 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Senior Immigration Judge Allen
Senior Immigration Judge Nichols
Mrs A J F Cross De Chavannes
For the Appellant: Mr P Draycott, instructed by Harrison Bundey & Co, Solicitors
For the Respondent: Mr R Wastell, instructed by the Treasury Solicitor
HS (Palestinian — return to Gaza) Palestinian Territories CG
(1) The Tribunal has jurisdiction to consider practical issues concerning the return of a Palestinian family to Gaza. GH [2005] EWCA Civ 1182 and HH (Somalia) [2010] EWCA Civ 426applied.
(2) Palestinians from Gaza with passports (expired passports can be renewed via a straightforward procedure) are unlikely to experience problems in obtaining and, if necessary getting extensions of, visas from the Egyptian authorities to enter Egypt and cross into Gaza via the Rafah crossing.
(3) The conditions likely to be experienced by Palestinians in Egypt while awaiting crossing into Gaza are not such as to give rise to breach of their human rights.
(4) On the basis of the authorities: MA [2008] Imm AR 617; MT [2009] Imm AR 290andSH [2009] Imm AR 306, it would not be persecutory or in breach of their human rights for Palestinians to be refused entry to Gaza.
(5) The Tribunal does not have jurisdiction to decide whether Israel has acted in breach of customary international law in respect of its treatment of Palestinians within the Occupied Palestinian Territories.
(6) The conditions in Gaza are not such as to amount to persecution or breach of the human rights of returnees or place them in need of international protection.
The appellant is a stateless Palestinian from the Gaza Strip. She appealed to an Immigration Judge against the Secretary of State's decision of 16 September 2008 varying her leave to enter the United Kingdom under s 3(3)(a) of the Immigration Act 1971 such that there would be no leave remaining.
The appellant had left Gaza via Egypt and came to the United Kingdom, in September 2003, together with her husband and children. Her husband had limited leave to remain until 31 January 2009 to undertake PhD studies and the appellant and their (then) five children were granted leave to remain on the basis that they were dependants. Due to a reduction in the funds available to the family to support themselves as the funding for her husband's studies had been stopped, she and the children returned to Egypt and tried to enter Gaza but were unable to do so, so she returned to the United Kingdom, and applied for asylum on 27 March 2008.
The Immigration Judge who heard her appeal in October 2008 did not accept that the appellant was “stateless”. He found her to be a national of the Palestinian Authorities and considered that even if she were stateless, she had been habitually resident in the area controlled by the Palestinian Authorities. She had not left Gaza because of any difficulties experienced there or on account of political activity or adverse conditions, but in order to accompany her husband on account of the grant to him of limited leave to remain in the United Kingdom as a student. The Immigration Judge considered it was not seriously likely that if the appellant genuinely feared persecution in Gaza she would, of her own free will, leave the United Kingdom with the children and attempt to re-enter Gaza. He did not accept that the situation in Gaza between the time of her leaving the United Kingdom and re-entering became so much more severe as to cause her to claim asylum. He considered that she had claimed asylum to obtain financial support for herself and her children as her husband was able to support himself from his part-time earnings but could not support her and the children. He noted that she had chosen to go to Ireland to give birth to her sixth child because she had been informed that in doing so the child would be entitled to Irish nationality, and she said that she did that because it might be of use to her in the future. He took into account the fact that the appellant and her husband had a large number of relatives in Gaza and that prior to their departure in 2003 they had lived with the appellant's husband's parents.
In respect of the appellant's husband's claim that he was not prepared to leave the United Kingdom, the Immigration Judge found this to be entirely lacking in credibility. He found that it was not credible that the husband, who had limited leave to remain until January 31 2009, would not accompany his wife and children on their removal from the United Kingdom, nor that his desire to complete his studies would override his desire to support his family. He had suggested that he would be faced with adverse treatment from the Palestinian Authorities if he returned to Gaza having failed to complete his studies in the United Kingdom, but the Immigration Judge considered that if that were in fact the case, he had not explained why he himself had not applied for international protection, even bearing in mind that he had leave to remain as a student. Nor did the Immigration Judge accept that there was any substance to the claim that the appellant's Article 8 rights would be breached in respect of her family members in Gaza on the basis that she was not able to enter Gaza. There was no evidence of any dependency upon those family members although it was accepted that they could support the appellant if she was returned to Gaza. He dismissed the appeal in respect of the Geneva Convention and Article 3 and Article 8 of the Human Rights Convention, noting medical evidence concerning one of the appellant's children who suffers from epilepsy but bearing in mind that the evidence showed that she no longer received medication for that condition and in any event objective evidence showed that medical treatment was available in Gaza albeit perhaps not of the same quality as in the United Kingdom, and hence there would be no breach of Article 3 rights in respect of her.
The appellant sought reconsideration of this decision, arguing that the Immigration Judge had erred in respect of his consideration of relevant case law which flawed his findings on the Refugee Convention and Article 3. It was also argued that the determination did not properly consider the appellant's Article 8 rights. Reconsideration was ordered on the basis that the Immigration Judge had arguably erred in concluding that the appellant did not face a real risk of persecution on return if she could be returned, to the Gaza Strip and that the humanitarian protection and Article 8 issues might also be argued.
On 7 April 2009 a Senior Immigration Judge concluded that there was a material error of law in the determination for reasons set out in detail at paragraph 3 of the determination in that respect, a copy of which is annexed to this determination. In effect, a re-hearing was ordered on the basis of the appellant's grounds.
The hearing before us took place on 15 and 16 December 2009 and on 22 and 23 February 2010. There were also subsequent written submissions, the last of which was received on 10 June 2010. Mr P Draycott, instructed by Harrison Bundey & Co, appeared on behalf of the appellant. Mr R Wastell, instructed by the Treasury Solicitor, appeared on behalf of the Secretary of State. Both representatives put in further documentation in addition to the three bundles that each had already provided.
At the hearing on 15 December 2009 Mr Draycott sought an adjournment in respect of two particular matters. The first concerned the ability of the appellant to obtain a transit visa from the Egyptian Consulate, and, if she were able to gain access to the border, the question whether she would be able to access the Gaza Strip through the crossing. There was then the question of how long she would have to wait there, bearing in mind that she would be accompanied by six children, the youngest of whom was only 1 1/2. There was an issue as to the kind of conditions in which she would have to reside. The evidence showed that the border was opened only sporadically and unpredictably. On one interpretation of the evidence from the Egyptian Consulate, the amount of time for which a visa would be granted was the same as the time it would take for the application to be processed, which would make it meaningless.
A further issue concerned the question of whether the appellant needed to renew her status with the Israeli authorities and if she had not done so whether she would be removed from the database and not allowed to enter Gaza. There were relevant issues in this regard in connection with the forthcoming country guidance case of Azam, concerned with the West Bank. The matter might be clarified if the appeal was heard after Azam had been determined.
Mr Wastell opposed the application for an adjournment. He argued that the last point had not been made before, and there had been a good deal of time in which it could have been made. It would not be appropriate, bearing in mind the amount of time and money that had been invested in preparation for the case, to adjourn on that basis. The fact was that the evidence showed that the crossing was open at least three days a month and there was evidence on this in Dr George's report at page 256 of the appellant's evidence bundle. Further, if the appellant could get into Egypt, the evidence showed that the Egyptians would do what they could to get her across the border and the visas would be extended, and if she could not get into Egypt then the Tribunal would have no jurisdiction to consider the matter in that regard as no removal directions had been set.
By way of response, Mr Draycott argued that, as it was an intended country guidance case, there was a need for more...
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