Kakarash (Revocation of HP; Respondent's Policy)
| Jurisdiction | UK Non-devolved |
| Judge | Blundell,Mr CMG Ockelton |
| Judgment Date | 16 August 2021 |
| Neutral Citation | [2021] UKUT 236 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2021] UKUT 236 (IAC)
Mr CMG Ockelton (Vice President) and Blundell UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
European Union law — Qualification Directive — Article 17 of Directive 2004/83/EC — revocation of humanitarian protection — paragraphs 339GB(iii) & (iv) of the Immigration Rules — Home Office policy — serious crime or danger to community — procedure and process — legitimate expectations — policy not sufficiently unambiguous
The Claimant, a citizen of Iraq, entered the United Kingdom unlawfully, as an unaccompanied asylum-seeking child, and claimed asylum in November 2014. The Secretary of State for the Home Department refused the claim. The First-tier Tribunal (“FtT”) allowed the Claimant's appeal against that decision on humanitarian protection (“HP”) and Article 3 ECHR grounds. In April 2016, the Claimant was granted HP valid until April 2021.
In June 2018, the Claimant stabbed a customer in a sandwich shop in an unprovoked attack. He pleaded guilty to unlawful wounding and having a bladed article in a public place. He was sentenced to 15 months' imprisonment. In February 2019, the Secretary of State informed the Claimant that she was considering deporting him and revoking his HP status. She invited him to make representations on those matters. The Claimant responded that deportation would be a disproportionate interference with his family rights under Article 8 ECHR. In July 2019, the Secretary of State refused his human rights claim and revoked his HP. The revocation of HP was based on the conclusions that the Claimant had committed a serious crime or, alternatively, that he constituted a danger to the community, pursuant to paragraphs 339GB(iii) and (iv) of the Immigration Rules HC 395 (as amended).
The Claimant appealed to the FtT on the grounds that removal would breach his rights under the Refugee Convention and the ECHR, and that he was ‘eligible for humanitarian protection’. Before the appeal was heard, the Secretary of State withdrew the decision to deport and her refusal of the Claimant's human rights claim. In his skeleton argument before the FtT, the Claimant argued only that the decision to revoke his protection status breached the United Kingdom's obligations in relation to persons eligible for a grant of HP, under section 84(3)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). He submitted that neither paragraph 339GB(iii) nor 339GB(iv) applied to him as the index offence was not a serious crime according to the Secretary of State's policy entitled ‘Humanitarian Protection’, dated 7 March 2017, and he was not a danger to the community.
The FtT found that the Claimant was not a danger to the community but that his offence was a ‘particularly serious’ one. Accordingly, it found, in terms, that the Claimant's HP would fall for revocation under the Immigration Rules and Directive 2004/83/EC (“the Qualification Directive”), both of which required either a serious crime or being a danger to the community. The FtT allowed the appeal, however, as it considered that the Secretary of State's policy had amalgamated the two separate grounds for revocation and had therefore imposed a ‘higher threshold’. It based that conclusion on one paragraph of the policy which stated that paragraphs 339GB(iii) and (iv) of the Rules applied, inter alia, to “those who have been convicted of a particularly serious crime such that they are deemed to be a danger to the community”. The Claimant had a legitimate expectation that his HP would not be revoked based on the policy, meaning that he could retain his HP status outside the Immigration Rules despite having committed a serious crime. The FtT noted that the Secretary of State had not articulated any reason why she should depart from her policy and that there were public policy reasons in favour of the policy being applied.
Before the Upper Tribunal, the Secretary of State raised two grounds of appeal. First, the FtT had exceeded its statutory jurisdiction in allowing the appeal with reference to the Secretary of State's policy, since to do so was to allow the appeal on the basis that the decision was ‘not in accordance with the law’, which ground of appeal had long since been removed from the 2002 Act. Secondly, the policy had been misapplied by the FtT. The policy was not sufficiently unambiguous to warrant a general departure from the Qualification Directive and the Rules and it was not, in any event, for the FtT to impose its own view when the policy had not been considered by the Secretary of State.
Held, substituting a fresh decision dismissing the Claimant's appeal in part:
(1) The FtT had erred in law in its decision to allow the appeal. The only rational conclusion which was open to it, having concluded that the Claimant had committed a serious crime, was to dismiss the appeal insofar as it was brought on the ground of appeal in section 84(3)(b) of the 2002 Act. There had been a wholesale failure of fair procedure before the FtT. The Claimant had made no argument directed to a legitimate expectation based on the policy and the Secretary of State had not had an opportunity to respond to that point. If the FtT had formed a provisional view, after it had risen, that the policy somehow committed the Secretary of State to a more restrictive approach to revocation of HP than was required by the Qualification Directive or the Immigration Rules, fairness required that both parties should have an opportunity to make submissions on the point. Whether or not the conclusion was substantively correct, therefore, it was reached by a procedurally improper means (paras 53 – 55).
(2) The FtT's conclusion was not substantively correct and its understanding of the policy was clearly wrong. The only rational understanding of the policy was that the Secretary of State had instructed her staff to follow the approach required by the Qualification Directive and the Immigration Rules in considering whether to revoke HP. The policy clearly did not mean that the Secretary of State had committed herself to revoking HP on the grounds of criminality only where the crime was a serious one and the individual concerned represented a danger to the community. The FtT gave the policy that meaning as a result of its interpretation of one paragraph in the policy and had erred in doing so. It had failed to note that neither the relevant paragraph nor the policy as a whole signalled a clear intention to depart from the approach adopted in the Qualification Directive and the Immigration Rules. Nowhere in the policy was there any indication that the Secretary of State had chosen to adopt a policy which would severely limit her ability to revoke the HP status of those who committed crimes. Had she had such a significant intention, she would have promulgated the necessary change by way of amendment to the Immigration Rules, rather than by way of an oblique sentence in the middle of a policy. Accordingly, the submission made in the Secretary of State's second ground of appeal was accepted: the policy was not sufficiently unambiguous to found a legitimate expectation that the Secretary of State would not follow the approach to revocation prescribed by the Immigration Rules (paras 56 – 64).
(3) The FtT had no jurisdiction to consider whether a decision was ‘otherwise not in accordance with the law’ following the amendments to the 2002 Act which were made by the Immigration Act 2014. In the light of those statutory obstacles, the Claimant submitted that the Secretary of State owed him an obligation of good administration, which encompassed a duty not to frustrate his legitimate expectation that she would adhere to her own policy, and that his appeal was properly allowed on the basis that the revocation therefore breached the United Kingdom's obligations in relation to persons eligible for a grant of HP. It was not necessary to consider whether the obligations in section 84(3)(b) included good administration because the difficulty with the Claimant's argument lay in the remaining words of that sub-section. The obligations in question were those owed ‘to persons eligible for a grant of humanitarian protection’. A person was not eligible for a grant of HP if he was excluded from eligibility for any one of the reasons in paragraph 339GB(i)-(v) of the Immigration Rules (which transposed Article 17(1) of the Qualification Directive), including his commission of a serious crime or the fact that he constituted a danger to the community or security of the United Kingdom. In an appeal against the revocation of HP, as in an appeal against the refusal of HP status, the first question was therefore whether the individual was eligible for that status. An individual who fell to be excluded was not eligible for a grant of that status and was not a person to whom any relevant obligations were owed (paras 67 – 80).
(4) The FtT erred in its conclusion that the policy created a legitimate expectation that the Secretary of State had adopted an approach to revocation which was more generous than the Qualification Directive or the Immigration Rules. Moreover, the FtT had no jurisdiction to bring any such legitimate expectation to bear in an appeal under section 84(3) of the 2002 Act in any event. Consequently, the policy point which was developed by the FtT of its own volition and without any argument from the parties was not only a frolic; it was a red herring. The FtT concluded that the Claimant had committed a serious crime. Whether or not he was a danger to the community, he was not a person who was eligible for a grant of HP because he had committed such a crime. His appeal fell to be dismissed on the ground of appeal in section 84(3)(b) as a result (paras 81 – 82).
(5) As it had been established that the Claimant was ineligible for HP, he sought to revive his asylum ground of appeal which he raised in his initial appeal form but...
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