Fiona Mcbride V. Emplpyment Appeal Tribunal
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lord McGhie,Lady Dorrian |
| Judgment Date | 25 January 2013 |
| Neutral Citation | [2013] CSIH 4 |
| Docket Number | XA101/13 |
| Published date | 25 January 2013 |
| Court | Court of Session |
| Date | 25 January 2013 |
| INNER HOUSE, COURT OF SESSION | |
| [2013] CSIH 4 | |
| Lady Clark of Calton | XA101/13 OPINION OF LADY CLARK OF CALTON in the application for leave to appeal by I S Applicant; against a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 24 June 2013 _______________ |
Alt: Webster; Office of the Advocate General
14 January 2014
[1] In this case the applicant seeks leave to appeal from a decision of the Upper Tribunal dated 24 June 2013. Permission to appeal to the court was sought from the Upper Tribunal and was refused on 17 July 2013. Throughout the long history of proceedings, it is apparent that the interpretation of the applicable law is difficult and uncertain.
[2] At the heart of the present case is the question of the status of the applicant as a displaced Palestinian who sought asylum in the United Kingdom and the effect on his case of the recent ruling of the Court of Justice of the European Union (the "CJEU") in Abed El Karem El Kott v Bevandorlasi Es Allampolgarsagi Hivatal [2013] All ER (EC) 1176. In the El Kott case, the CJEU interpreted the Refugee Qualification Directive 2004/83/EC on minimum standards for the qualification and status of third county nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. This Directive in effect transposed into EU Law article 1D of the Refugee Convention (the convention on the status of refugees, signed at Geneva on 28 July 1951 as supplemented and amended by the protocol relating to the status of refugees, concluded in New York on 31 January 1967) ("the Geneva Convention"). The interpretation of the Directive is relevant to the interpretation of the equivalent provisions in the Geneva Convention.
[3] Article 1D of the Geneva Convention states:
"This Convention shall not apply to persons who are at present receiving from organs or agencies of United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention."
[4] The longstanding difficulties of interpretation related to article 1D of the Geneva Convention which are highlighted in the El Kott case and earlier case law are important to the understanding of the history of the applicant's case and the way in which it was originally presented and dealt with by the decision makers who decided the case prior to the ruling in El Kott in 2013.
[5] The applicant's case as originally presented was not founded on article 1D. The main claim was that the applicant was a refugee as defined in article 1A(2) of the Geneva Convention "...and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". It appears that prior to 2013, article 1D was not generally regarded as a sound legal basis for founding a claim for refugee status. Rather it was regarded as a hurdle to be overcome before an applicant could claim article 1A(2) protection. In considering the proper approach to interpretation the court...
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