MT (Palestininan Territories) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Scott Baker,Lord Justice Wall,Lord Justice Ward |
| Judgment Date | 22 October 2008 |
| Neutral Citation | [2008] EWCA Civ 1149 |
| Docket Number | Case No: C5/2007/2422/AITRF |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 2008 |
[2008] EWCA Civ 1149
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND
IMMIGRATION TRIBUNAL
Lord Justice Ward
Lord Justice Scott Baker and
Lord Justice Wall
Case No: C5/2007/2422/AITRF
Michael Fordham Q.C and Roger André (instructed by Duncan Lewis & Co) for the Appellant
Katherine Olley (instructed by The Treasury Solicitor) for the Respondent
This is an appeal from a decision of the Asylum and Immigration Tribunal promulgated on 8 August 2007. That decision was a reconsideration following the rejection of the appellant's appeal by Immigration Judge Atkinson on 23 October 2006. The issues are whether a stateless Palestinian, a former habitual resident of the West Bank, who is likely to be refused re-entry by the Israelis, has a well founded fear of persecution for a Convention reason; and whether this court is bound by its decision in MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304.
The same point arises in SH (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1150. Unfortunately it did not prove possible for SH and the present case to be heard by the same constitution on the same occasion as the present appeal. The judgments have however been handed down together and I do not propose to repeat everything I have said in SH.
Briefly the history in the present case is as follows. The appellant, who is 28, arrived in the United Kingdom on 1 August 2006 and claimed asylum two days later on the basis that if returned to Palestine either Israeli forces would kill him or Hamas would capture, imprison and torture him. He is a stateless Palestinian from the West Bank.
On 24 August 2006 the Secretary of State refused his asylum claim, finding a number of “serious credibility issues”. Major elements of his claim were, it was said, either exaggerated or totally fabricated to achieve his aim of remaining in the United Kingdom.
His appeal was rejected by Immigration Judge Atkinson, who found his account implausible for a number of reasons and inconsistent with the objective evidence. He found the appellant was not at risk from either the Israeli forces or Hamas. On 17 November 2006 reconsideration was ordered by Senior Immigration Judge Drabu whose reasons were:
“I note that the Immigration Judge has made adverse comments on the appellant's credibility on the grounds of plausibility but it is properly arguable that all or some of those comments make no reference to the relevant objective evidence and are therefore in error of law as being unreasoned or inadequately reasoned findings. An order of reconsideration is made in respect of all issues raised in the grounds.”
The issues raised in the grounds were all directed to the credibility findings.
The appellant claimed to have left the Occupied Territory of the West Bank on 16 or 17 July 2006 concealed in a lorry carrying vegetables. This was with the help of an Israeli merchant. After crossing into Israel, he boarded a bus and entered Gaza where he stayed for four or five days during which time he was introduced to an agent, Laviski.
Laviski and the appellant passed through a number of checkpoints to a port in Gaza where he was smuggled onto a cargo vessel to Egypt. He remained on board for between two and seven days before disembarking in Cairo, where he remained in hiding for a further five or six days. Laviski provided him with a Saudi Arabian passport bearing his photograph but a false identity.
He flew from Cairo to Manchester arriving on 1 August 2006. He presented the false passport to the immigration officer at Manchester Airport, telling him he was a visitor and giving details of accommodation at the Regency Hotel. The appellant said he had travelled with Laviski to whom he returned the false passport. The appellant, who has no family or friends in the United Kingdom, claimed asylum two days later.
The reconsideration, which was a hearing de novo, was conducted by Designated Immigration Judge Wynne and Immigration Judge Grant-Hutchison. Like Immigration Judge Atkinson, they did not accept that the appellant's account, including his account of being smuggled out by Laviski, was credible. On this occasion, that conclusion is unassailable. Thus, were the appellant to return to his former home, he would not be at risk of persecution from the Israelis, Hamas or anyone else. The tribunal pointed out that he did not claim ever to have been persecuted by anyone, his case being that he had fled before the opportunity to persecute him arose.
The tribunal referred to, and strongly relied on, MA [2007] UK AIT 00017 at tribunal level. It was a decision which had been promulgated six months before in February 2007. It was, the tribunal said at para 131, “the only current Country Guideline Case to date on the Occupied Territories.” Merely being a Palestinian Arab in the Occupied Territories, even if a male aged between 16 – 35 from the northern part of the West Bank did not mean a person would face on return a real risk of persecution, serious harm or ill-treatment.
The facts in MA, to which I shall return in more detail shortly, were very similar to those in the present case. MA subsequently appealed to this court (Maurice Kay L.J., Lawrence Collins L.J. and Sir William Aldous) and their decision is at [2008] EWCA Civ 304.
Towards the end of its determination the tribunal in the present case gave some consideration to the risk to Palestinian Arabs who are forcibly returned and whether they would be successful in gaining re-entry into the West Bank via the King Hussein Bridge. It concluded there was nothing to overtake the decision of the tribunal in MA.
The single ground of appeal being pursued by Mr Fordham Q.C. before us is phrased in the following terms in the notice of appeal:
“Refusal of entry to the place of habitual residence (Palestine) and deprival of citizenship by the controlling authority is an act of such severity that it amounts to persecution and breach of third party rights. It is submitted that the court should look anew at MA (Palestinian Territories CG) UK AIT 00017; and now in the light of EB (Ethopia) [2007] EWCA Civ 809, which post-dates the determination being appealed.”
In the meantime the appeal in MA was decided in this court on 9 April 2008.
Mr Fordham puts the point in this way. The appellant is an ethnic, but stateless, Palestinian who is excluded from returning to the West Bank which is the country of his former habitual residence. If, as submitted is the case, he can show that his exclusion is for a Convention reason i.e. on the grounds of race and ethnic origin, he has a sustainable refugee claim. Never mind that the whole basis of his claim under Article 3 of the ECHR and the primary basis of his Convention claim, a well founded fear of persecution by the Israeli authorities and/or Hamas has failed, and that he does not wish to go back to the West Bank, when he is returned against his will he will be prevented from reaching the West Bank and thus has a viable asylum claim under the Convention. It goes without saying that, if Mr Fordham's argument is correct, there are likely to be a great many stateless Palestinians who would, likewise, have valid asylum claims. Mr Fordham makes it clear that his argument relates solely to a Refugee Convention claim. No claim is any longer pursued under Article 3 of the ECHR.
Now the fundamental obstacle in Mr Fordham's way is the decision of the Court of Appeal in MA, which was decided after the tribunal decided the present case. Unless the present appeal is distinguishable we are bound by that decision and the appellant's appeal must be dismissed whatever the merits of Mr Fordham's arguments.
Mr Fordham submits that all MA decided was that a stateless person returning to his country of former habitual residence is not for that reason of itself entitled to the protection of the Convention. What, he submits, the court did not decide in MA is whether a stateless person, excluded from returning to their country of former habitual residence where the exclusion is on the ground of race, is for that reason entitled to protection under the Convention.
At this point it may be helpful to say a word about the history of the West Bank. I gratefully adopt the account of Lawrence Collins L.J. in MA (see para 47). Prior to 1948 the nationality of persons living in Palestine under the British mandate was regulated by the Palestine Citizenship Order in Council 1925 – 1942, which conferred something called Palestinian citizenship. They were not British subjects, but were similar to, but not the same as British protected persons. The Supreme Court of Israel decided that Palestinian citizenship ceased as from the establishment of the State of Israel in 1948. After 1948 the West Bank was occupied by Jordan. In December 1949 Palestinians living in the West Bank were given the right to claim Jordanian citizenship. In April 1950 Jordan annexed the West Bank, which gave all Palestinians living there Jordanian citizenship. By Article 3 of the Jordanian Citizenship Law of 1954 Jordanian citizenship was conferred on any person (other than a Jew) who was a Palestinian citizen before 15 May 1948 and resided in Jordan between 20 December 1949 and 16 February 1954.
The West Bank came under the occupation of Israel from 1967, but the inhabitants...
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SH (Palestinian Territories) v Secretary of State for the Home Department
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