MA (Somalia) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley |
| Judgment Date | 23 April 2010 |
| Neutral Citation | [2010] EWCA Civ 426 |
| Docket Number | Case Nos: C5/2008/1011 C4/2009/1173 C5/2009/2017 1. IA/14092/2006 2. AA/13577/2007 & 4. AA/01476/2007 3. CO/5844/2007 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 April 2010 |
[2010] EWCA Civ 426
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
AND THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Lord Justice Sedley
Lady Justice Smith
and
Lord Justice Elias
Case Nos: C5/2008/1011
C5/2009/0968
C4/2009/1173
C5/2009/2017
1. IA/14092/2006 2. AA/13577/2007 & 4. AA/01476/2007
3. CO/5844/2007
Mr Richard Drabble QC and Mr James Collins (instructed by Sheikh & Co) for the Appellant 1.
Mr Ronan Toal (instructed by South Manchester Law Centre) for the Appellant 2.
Mr Rick Scannell and Mr Ronan Toal (instructed by Islington Law Centre) for the Appellant 3.
Mr Richard Drabble QC and Mr Graham Denholm (instructed by CLC Solicitors) for the Appellant 4.
Ms Elisabeth Laing QC and Ms Deok Joo Rhee (instructed by Treasury Solicitor) for the Respondents 1, 2. &4.
Mr Colin Thomann (instructed by Treasury Solicitor) for the Respondent 3.
Hearing dates: 13 January 2010, 1–3 March 2010
Lord Justice Sedley:
Introductory
This judgment, which is the work of all three members of the court, is being given in unitary form because the cases to which it relates were selected for hearing by a single court in the hope of giving some general guidance on a number of related issues. Inevitably some issues have dropped away and others have acquired unanticipated prominence. All, however, have the same backdrop: the enforced return of individuals with no independent right to be or remain in the United Kingdom to a war-torn country, Somalia, where their safety is or may be in serious doubt.
Two particular paradoxes affect these cases.
One is that the common sense of waiting until removal or deportation is imminent before deciding whether it is safe has to be set against the mandate to primary and appellate decision-makers to take into account the full humanitarian and human rights implications of the immigration decision which is before them.
The other is that, difficult as it is, it is necessary to put aside the fact that none of those now claiming humanitarian and human rights protection has any independent entitlement to be in the United Kingdom, and that at least one has committed a serious crime which makes it wholly undesirable that he should remain here. The lack of any prior right to be here is the necessary predicate of all cases concerning safety on an enforced return, but that does not mean that such people are not entitled to the due process and protection of the law.
In that context this judgment addresses the following issues:
(a) How is danger arising from generalised or indiscriminate violence to be appraised?
(b) On appeal against an adverse immigration decision, is the appellate tribunal's decision only whether an individual can in principle be returned to his home state (or part of it) or is the tribunal required to consider the appellant's safety at the point of return and on any journey that he or she must make from there to reach safety; or does this latter issue arise only when removal directions are given?
(c) What is the nature of the burden of proof resting on a person who contends that deportation will put his or her life at risk?
The law
Removals of illegal entrants continue to be carried out under the powers contained in paragraphs 8 to 10 of Sch. 2 to the Immigration Act 1971. These permit directions to be given to a carrier to remove an illegal entrant to a country of which he is a national or a citizen; a country or territory in which he has obtained a passport or other document of identity or where he embarked for the United Kingdom; or a country or territory to which there is reason to believe he will be admitted. Safety at the point of return or en route to a safe place is not a statutory factor: it arises as an adjectival human rights or humanitarian issue.
The European Convention on Human Rights by art. 2 guarantees the right to life and by art. 3 forbids inhuman or degrading treatment. The risk that one of these rights will be violated is measured by the actual and prospective situation of the individual seeking protection. The Qualification Directive (2004/83 EC) lays down "the minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted". In addition to laying down criteria in relation to refugee status and defining the minimum civil rights to be accorded to refugees, the Directive defines the concept of 'subsidiary protection' which may be available to those who do not qualify as refugees. So far as relevant for present purposes, a person eligible for subsidiary protection is defined in article 2(e) as:
"A third country national … who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned if returned to his or her country of origin …. would face a real risk of suffering serious harm as defined in article 15, ….., and is unable or owing to such risk unwilling to avail himself or herself of the protection of that country."
Article 15 defines serious harm:
"Serious harm consists of
(a) death penalty or execution; or
(b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."
Member States were required to transpose the Directive into domestic law by October 2006. In so far as any new provisions were required in the domestic law of the United Kingdom, this was achieved by amendment of the Immigration Rules and the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, SI 2006/2525. Entitlement to international humanitarian protection is set out, in accordance with the Directive, in paragraph 339C.
In February 2009 the ECJ gave its ruling in Elgafaji [2009] 1 WLR 2100. On the basis of it, this court in June 2009 decided QD (Iraq) [2009] EWCA Civ 620. The two decisions now afford a reasonable measure of certainty about the meaning and scope of art. 15(c) of the Qualification Directive.
In Elgafaji, the ECJ was asked whether the protection provided by article 15(c) was co-terminous with the protection provided by article 3 of the ECHR or was supplementary to it. If the latter, what were the criteria for determining eligibility? The Court held that article 15(c) protection went beyond article 3 ECHR protection (which is covered by article 15(b) of the Qualification Directive). As to the criteria to be applied, at paragraph 43 the Court summarised the position thus:
"…article 15(c) of the Directive, in conjunction with article 2(e) of the Directive, must be interpreted as meaning that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances, and the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place …. reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat."
Thus, for a person who claimed subsidiary protection merely on account of his presence in a particular war zone, the level of indiscriminate violence would have to be very high. But, earlier, in paragraph 39, the Court had explained that, where the applicant could show that he or she was specifically affected by reason of factors particular to his or her personal circumstances, a lower level of indiscriminate violence would be sufficient to show eligibility for subsidiary protection.
In QD, this court considered and applied 62007CJ0465">Elgafaji, which, as it observed, left a number of potential problems outstanding. It sought to clarify the ECJ's use of the word 'exceptionally' in §43 (quoted above), holding, at §25, that the judgment of the ECJ had not introduced an additional test of exceptionality. It had simply stressed that "it is not every armed conflict or violent situation which will attract the protection of article 15(c) but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety." That observation is of course subject to the qualifications that, where specific personal or group factors apply which increase the risk to the particular applicant over and above that faced by the population at large, the level of indiscriminate violence will not need to be as high, and that where effective personal protection is accessible the risk may abate.
The following provisions of the Nationality, Immigration and Asylum Act 2002 have a bearing on these appeals:
82 Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to the Tribunal.
(2) In this Part "immigration decision" means—
(a) refusal of leave to enter the United...
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