I A For Leave To Appeal Under Section 103b Of The Nationality Immigration And Asylum Act 2002
| Jurisdiction | Scotland |
| Judge | Lord Emslie,Lord Clarke,Lady Paton |
| Neutral Citation | [2011] CSIH 28 |
| Year | 2011 |
| Published date | 01 April 2011 |
| Date | 01 April 2011 |
| Court | Court of Session |
| Docket Number | XA60/10 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lady Paton Lord Clarke Lord Emslie | [2011] CSIH 28 XA60/10 OPINION OF THE COURT delivered by LORD CLARKE in THE APPLICATION FOR LEAVE TO APPEAL by I.A. (A.P.) Applicant and Appellant; under section 103B of the Nationality, Immigration and Asylum Act 2002 against a decision of the Asylum and Immigration Tribunal _______ |
Alt: Lindsay; C Mullin; Office of the Solicitor to the Advocate General
For Intervener: Carmichael Q.C.; Brodies LLP
1 April 2011
[1] The applicant seeks leave to appeal against a decision of the Asylum and Immigration Tribunal ("the tribunal") dated 8 December 2009, described in the application as the "the reconsidered decision", whereby the tribunal held that its decision of 19 January 2009, described in the application as the "initial decision", should stand. The latter decision dismissed the applicant's appeal against a decision of the respondent, the Home Secretary, of 5 November 2008 which refused to grant the applicant asylum or humanitarian protection and determined that he should be removed from the United Kingdom as an illegal immigrant.
[2] The applicant claimed before the tribunal that requiring him to leave the United Kingdom in consequence of the respondent's decision would be a breach of the United Kingdom's obligations under the Geneva Convention of 1951 relating to the Status of Refugees, as amended by the protocol to the Convention 1967 (collectively the Refugee Convention) and would be unlawful under section 6 of the Human Rights Act 1998, as being incompatible with the appellant's rights under the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
[3] In making his application for asylum the applicant in his statement gave the following history. He is a native of Iran, born on 20 September 1976. He had, in his youth, an association with the KDPI and arranged to be smuggled into Kurdistan in Iraq when he was 16 years of age. He thereafter joined the KDPI but gave up his association with them some six or seven years thereafter. In 1998 he successfully applied for asylum to the Office of the United Nations High Commission for Refugees ("the UNHCR") in Kurdistan. He was advised by the UNHCR that he would be sent to a safe country in due course. There was some delay in carrying out this undertaking and, since the applicant continued to feel at risk, he travelled to Turkey where he claimed asylum with the UNHCR there. After a delay of two years the UNHCR again recognised him as a refugee and, once again, he was told that he would be sent to a safe country. Three years later, however, he still remained in Turkey, the undertaking to send him to a safe country having apparently not been fulfilled. He made a protest outside the UNHCR building and was arrested. He did not respond to the summons to appear in court and left Turkey in August 2007, having paid $8,000 to an agent to assist him in coming to the United Kingdom. He arrived in the United Kingdom on 23 or 24 August 2007 and claimed asylum thereafter.
[4] On 27 September 2007 his asylum claim was refused. That refusal was subsequently withdrawn to allow the respondent's representatives to make enquiries of the UNHCR. His claim for asylum was then, of new, refused by letter dated 10 November 2008. He appealed to the Asylum and Immigration Tribunal and that appeal was dismissed on 26 January 2009. As has been noted, the applicant applied for an order for reconsideration. Reconsideration was ordered and a reconsideration hearing took place on 28 August 2009. By decision promulgated on 14 December 2009 the tribunal held there was no material error of law and that the decision of the tribunal dated 26 January 2009 should stand. The applicant's application to the Upper Tribunal (Immigration and Asylum Chamber) for leave to appeal to this court was refused on 6 April 2010. (Contrary to what is stated in the application to this court for leave to appeal, the application does not proceed under section 13 of the Tribunals Courts and Enforcement Act 2007 but, as noted above, proceeds under section 103B of the Nationality, Immigration and Asylum Act 2002. This was agreed by the representatives of both parties before this court to be the correct statutory basis for bringing the present application.)
[5] The application raises for consideration by this court, apparently for the first time, questions as to the status and effect of the recognition by the UNHCR, under its mandate, that a person has "mandate refugee status" when that person is seeking asylum protection in this country. The UNHCR lodged a minute of intervention in the present proceedings. By interlocutor of 15 October 2010 the court granted the application for leave to intervene and appointed the UNHCR to lodge a written submission. It was noted in the minute of proceedings that counsel for the intervener would not, at that stage, be given authority to make oral submissions in any hearing that may follow. It was further noted, however, that counsel for UNHCR appearing at any hearing would be in the position to provide the court with further assistance if called upon to do so. UNHCR provided full written submissions which have been of considerable assistance to the court in setting out its status, functions and responsibilities.
[6] In the primary written submission lodged by UNHCR, dated 22 October 2010 (15 of process) its position as regards the issue which is focused in the present application is noted as follows:
"For the foregoing reasons, UNHCR submits that in determining whether a person is refugee for the purposes of the 1951 Convention and/or 1967 protocol, the UK decision maker must give considerable weight to, and seriously take into account, the fact that that person has been recognised previously by the UNHCR under its mandate as a refugee when determining risk and assessing the credibility of his or her claim for asylum protection". (para 41).
[7] The focus of the hearing before this court was on the reasoning of the "initial" decision of the tribunal which was upheld in the reconsidered decision. The applicant's complaint was that the tribunal which had reached the initial decision erred in law by relying, it was said, "entirely" on its adverse credibility findings as clear and substantial grounds differing from the UNHCR conclusion as to the status of the applicant. It should be noted that the Tribunal had before it, and considered, a previous case KK (Recognition elsewhere as refugee) Democratic Republic of Congo [2005] UKAIT00054. The Tribunal, at para 20 of its decision, concisely and correctly, in our...
To continue reading
Request your trial
-
IA v Secretary of State for the Home Department (Scotland)
...[2014] UKSC 6 THE SUPREME COURT Hilary Term On appeal from: [2011] CSIH 28 Lady Hale, Deputy President Lord Kerr Lord Wilson Lord Hughes Lord Hodge I.A. (Appellant) and The Secretary of State for the Home Department (Respondent) (Scotland) Appellant Jonathan Mitchell QC Daniel Byrne (Instr......