MA (Palestinian Territories) v Secretary of State for the Home Department

Hearing dates : 16 and 17 January 2008

This appeal is primarily concerned with the question whether a stateless person, whom the Secretary of State wishes to return to his habitual place of residence, is entitled to protection under the Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms (ECHR) if there is a reasonable likelihood that, on such return, he would not be permitted entry by the authorities in that country. The appellant is a Palestinian Arab in his mid-twenties. He lived in Tulkarm in the northern part of the West Bank which has been occupied by Israel since 1967. He arrived in the United Kingdom on 29 June 2003 and claimed asylum. On 28 August 2003 the Secretary of State refused his application on asylum and human rights grounds. The appellant appealed against that decision. The procedural history of his appeal has been complicated.

On 16 April 2004 an Adjudicator dismissed the asylum appeal but allowed the human rights appeal by reference to Article 3. In essence, the failure of the asylum appeal resulted from the rejection by the Adjudicator as incredible the account given by the appellant that he had been and would be persecuted by members of Fatah or the Palestinian Authority. However, the Article 3 claim succeeded because the Adjudicator considered that, on return, the appellant would be subjected to controls and restrictions by the Israelis. He said:

“… Israel's treatment of Palestinians generally …, whether or not they are terrorists or suspected terrorists, even if that is thought by Israel to be justified in the interests of state security, is in my view, on any ordinary definition of the word, treatment which is degrading of the Palestinian people within their own territory. It follows that I accept … that there is a real risk of the appellant, qua Palestinian, and especially as a young Palestinian male, being subjected to degrading treatment by the Israeli authorities if now returned to the West Bank.”

The Adjudicator expressly found that the anticipated treatment “is clearly not such that it can be said to amount to serious harm and, therefore, persecution” but nevertheless considered that the necessary level of severity had been reached so as to amount to “degrading treatment” within the meaning of Article 3.

The Secretary of State sought permission to appeal to the Immigration Appeal Tribunal (IAT). I shall have to return to the pleaded grounds of appeal because, on behalf of the appellant, Miss Collier has raised a jurisdictional point about the subsequent appellate history. Permission to appeal was granted on 13 May 2004 but by the time that appeal came to be heard, the IAT had ceased to exist and the transitional provisions of and pursuant to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 transferred the case to the Asylum and Immigration Tribunal (AIT). Again, the detailed statutory provisions are relevant to the jurisdictional point and I shall consider them in that context. At this stage it is sufficient to record that on 17 March 2006 a panel of the AIT concluded that the determination of the Adjudicator contained an error of law and referred the matter for a second-stage reconsideration. The second-stage reconsideration took place before a different panel of the AIT on 15 November 2006. In a determination promulgated on 8 February 2007, it concluded that the appellant was not entitled to succeed by reference to the Refugee Convention, the Immigration Rules or the ECHR. On 24 April 2007 the AIT refused permission to appeal to the Court of Appeal but on 6 July 2007, Richards LJ granted permission on two grounds but refused it on four further grounds. Before this Court, Miss Collier has pursued the two permitted grounds and has renewed the application in relation to the grounds upon which Richards LJ refused permission.

By the time of the second-stage reconsideration by the AIT, the case had changed. It was made clear on behalf of the Secretary of State that the intention was to return the appellant to the West Bank via Jordan and the King Hussein Bridge. Paragraph 1 of the determination states:

“It was the agreed position of both parties … that the appellant would have to pass through checkpoints manned by the Israeli authorities at the King Hussein Bridge and that, thereafter, he would have to pass through checkpoints —'several' [according to the Secretary of State], 'numerous' [according to the appellant] —in order to travel back to Tulkarm.”

The AIT then record the agreed view of the parties that the issue was

“ .. whether there is a real risk that the appellant would be persecuted or subjected to ill-treatment under Article 3 … by the Israeli authorities on seeking entry through the King Hussein Bridge, and thereafter.”

The conclusions of the AIT

The primary conclusion of the AIT was that, as a Palestinian being forcibly returned from abroad, the appellant would not be allowed to re-enter the West Bank. He would get no further than the King Hussein Bridge, whereupon “he would simply have to turn back into Jordan”. On the basis of the country guidance case of NA(Palestinians – Not at general risk) Jordan CG [2005] UKIAT 00094:

“… ethnic Palestinians, whether or not recognized as citizens of Jordan, are not persecuted or treated in breach of their protected human rights by reason of their ethnicity, although they may be subject there to discrimination in certain respects in their social lives in a manner which does not cross the threshold from discrimination to persecution or breach of protected human rights.”

That disposed of the appellant's case on the facts as found. However, the AIT went on to consider it on the hypothetical basis that the appellant would be permitted to re-enter the West Bank. It concluded that he had not established that any mistreatment would reach the minimum level of severity necessary for success under the Refugee Convention, the Immigration Rules or the ECHR. I now turn to the grounds of appeal.

Issue 1: the jurisdictional point

At the time of the determination of the Adjudicator, the right of appeal to the IAT was only on a point of law and it depended on a grant of permission to appeal by the IAT: Nationality, Immigration and Asylum Act 2002, section 101(1). For permission to be granted, the pleaded grounds of appeal had to disclose an arguable error of law: Miftari v SSHD [2005] EWCA Civ 481. When the transitional provisions of and under the 2004 Act apply, it is common ground that (a) the AIT is required to deal with the appeal in the same manner as if it had originally decided the appeal and it is reconsidering its own decision; (b) the Asylum and Immigration Tribunal (Procedure) Rules 2005 apply to reconsideration of appeals; and (c) by rule 31(2) and (3) of the 2005 Rules, the AIT is first required to decide whether the Adjudicator made a material error of law: only if it is decided that he did, may the IAT proceed to second-stage reconsideration. All this is common ground.

Miss Collier submits that (1) the Secretary of State's grounds of appeal to the IAT did not disclose an arguable error of law on the part of the Adjudicator; (2) the AIT at the first stage did not find a material error of law but only an arguable one; and (3) there was no error of law on the part of the Adjudicator in any event. In order to consider these submissions, it is first necessary to refer to the original documentation.

The Secretary of State's grounds of appeal read as follows:

“The Adjudicator has allowed this appeal under Article 3, purely on the basis that a young Palestinian male will be stopped at road blocks and thus be exposed to a real risk of degrading treatment from the occupying Israeli authorities. It is submitted that the Adjudicator's decision to allow the appeal under Article 3 is in error for the following reasons. If the correct approach had been followed he would have dismissed the appeal in its entirety.

1. The objective evidence mentioned by the Adjudicator at paragraph 22 of the determination details incidents of harsh treatment of the Palestinians by the Israeli authorities. It is not, however, evidence that all Palestinians are subjected to this treatment nor is it evidence that this appellant faces a real risk of harsh treatment, which reaches the standard required to breach Article 3.”

Two further grounds of appeal were then set out but, on behalf of the Secretary of State, Mr Johnson accepts that they did not assert arguable errors of law.

When the IAT granted permission to appeal, it did so on the basis that “the grounds of appeal are clearly arguable”.

When the AIT engaged in the first-stage reconsideration, it expressed itself as follows:

“ Reasons for the Decision that there is an Error of Law in the Determination

1 … the Adjudicator found that there was not a real risk that the appellant would suffer torture or inhuman treatment at the hands of Israeli forces on the West Bank. The Adjudicator went on to find in the next paragraph that the...