R (Tesfamichael) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Longmore LJJ,Lord Brown of Eaton-under-Heywood,Lord Hope,Lord Dyson,Lord Kerr,Lord Clarke,Sir Anthony May,Stanley Burnton,Lord Mance |
| Judgment Date | 21 March 2012 |
| Neutral Citation | [2010] EWCA Civ 643 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2009/2272 |
| Date | 21 March 2012 |
[2010] EWCA Civ 643
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicola Davies QC (Sitting as a Deputy High Court Judge)
Before: The President of the Queen's Bench Division
Lord Justice Longmore
and
Lord Justice Stanley Burnton
Case No: C4/2009/2272
Lisa Giovannetti (instructed by the Treasury Solicitor) for the Appellant
Richard Drabble QC and Eric Fripp (instructed by Duncan Lewis & Co) for the Respondent
Hearing Date: 11 May 2010
Lord Justice Stanley Burnton :
Introduction
1. This is an appeal by the Secretary of State against the decision of Nicola Davies QC, sitting as a Deputy High Court Judge of the Administrative Court in the Queen's Bench Division, quashing his decision of 24 August 2006 declining to grant leave to remain and refusing to recognise the Claimant (to whom I shall refer as T) as a refugee, and ordering him to grant her leave to remain and to recognise her as a refugee.
2. The appeal raises an important question as to the effect of Article 32 of the Refugee Convention, namely whether a person who is, or is recognised to be, a refugee within the meaning of the Convention and the Protocol relating to the Status of Refugees (“the Refugee Convention”) is by reason of that status alone entitled to the protection of Article 32 of the Convention, which precludes removal “save on grounds of national security or public order”.
The facts
3. For the purposes of these proceedings, the Secretary of State accepts that T is of Eritrean nationality, although she has never lived in Eritrea and until she came to the UK in July 1998 she had lived in Ethiopia. On arrival in this country she claimed asylum and humanitarian protection. She claimed to fear persecution in both Eritrea and Ethiopia.
4. The Secretary of State did not accept that she would be at risk in either country, and decided that she should be removed to Eritrea. By notice of refusal of leave to enter dated 5 November 2004 he informed her that he had decided to refuse her application for the reasons set out in the attached letter dated 1 November 2004, and that “I have given/propose to give directions for your removal to Eritrea”.
5. T appealed to an Adjudicator, who dismissed her appeal by a determination promulgated on 10 March 2005. In paragraph 2 of his determination, he stated that she had available to her the grounds mentioned in section 84 of the Nationality, Immigration and Asylum Act 2002, and that she raised her appeal under section 82 of that Act.
6. In paragraphs 17 to 19 of the determination, the Adjudicator set out the Secretary of State's contentions, which he summarised as asserting “that the appellant had no credible reason why she could not return either to Ethiopia or to Eritrea where she did not have a fear of persecution”.
7. In paragraph 50 of his determination the Adjudicator found that T would be at risk of persecution in Eritrea on account of her religion. He rejected her contention that she would be treated as a draft evader or deserter. In paragraphs 56 to 60 of the determination, the Adjudicator addressed the question of T's removal to Ethiopia. In paragraph 57 he recorded that her counsel “acknowledged that the appellant's claim for refugee status on the basis of removal to Ethiopia could not be made out but that her submission related solely to the appellant's rights under Articles 3 and 8 … in the sense of the risk of her being deported to Eritrea where she could be subjected to treatment contrary to both Conventions”. The Adjudicator rejected T's case that there was any real risk of her being deported from Ethiopia to Eritrea if returned to the former country. His decision was to “dismiss the appellant's asylum appeal on the basis that she can safely be returned to Ethiopia”. He also rejected T's article 3 and article 8 claims.
8. T sought permission to appeal to the Immigration Appeal Tribunal, contending that it had not been open to the Adjudicator to dismiss her appeal on the basis that she could be removed to Ethiopia because Ethiopia was not her country of nationality. The Adjudicator had concluded that T did have a well founded fear of persecution in Eritrea, which was T's country of nationality. It followed (T contended) that she was a refugee and her asylum appeal should have been allowed. She also sought to challenge the conclusion on Article 8.
9. The Asylum and Immigration Tribunal ordered reconsideration on the basis that, although removal directions had been set for Eritrea, the Adjudicator dismissed the appeal by reference to her conclusion that T could be returned to Ethiopia.
10. At the reconsideration hearing the Home Office Presenting Officer, Mr Tarlow and Mr Fripp, counsel for T, both pointed out that removal directions were set for Eritrea. According to the Tribunal's determination of February 2006:
“Mr Fripp and Mr Tarlow reminded us that the respondent had proposed to remove the appellant to Eritrea. Mr Tarlow said that the respondent does not take issue with any of the findings made by the Adjudicator and nor does it challenge the conclusions drawn by the Adjudicator in paragraph 50 of his determination. However he went on to say that the respondent may decide to issue fresh removal directions in this case. He accepted that what the respondent might or might not do in the future is not a matter that need concern us. Mr Fripp asked us to find that the determination of Mr K R Doran is materially flawed and to allow the appeal.
4. The parties have agreed that the decision of the Adjudicator is in material error of law in that his conclusions are plainly contrary to the findings that he has made in paragraph 50 of his determination. We are satisfied that the Adjudicator erred in law and upon a review of all the relevant evidence, using the Adjudicator's clear and reasoned findings of facts, which are not challenged, we find that the appellant is a refugee and also that her removal to Eritrea would breach her protected rights under Article 3 of the ECHR. We conclude that her fear of persecution for a Convention reason in Eritrea is well founded and that she is entitled to international protection as a refugee under the 1951 Convention on Refugees. We further conclude that with regard to removal to Eritrea, the removal would be unlawful as it would lead to her ill treatment contrary to her protected rights under Article 3 of the ECHR.”
11. For these reasons, the Tribunal's decision was stated as follows:
“The original Tribunal (Adjudicator) made a material error in law and we substitute the decision as follows:
The appeal is allowed on asylum grounds.
The appeal is also allowed on human rights grounds.”
12. Following receipt of that determination, the Secretary of State issued a fresh reasons for refusal letter, dated 24 August 2006, and served notice refusing T leave to enter the United Kingdom and notifying her that he proposed to give directions for her removal to Ethiopia, and informing her that she had a fresh right of appeal against that decision. T lodged an appeal in order to protect her position. However, her primary position is that she is entitled to the grant of status on the basis of the AIT determination. She therefore commenced these proceedings seeking judicial review of the Secretary of State's decision of 24 August 2004.
The judgment below
13. As stated above, Nicola Davies QC, sitting as a Deputy Judge of the High Court, quashed the Secretary of State's decision declining to grant T refugee status and ordered him (as he then was) to recognise T as a refugee and to grant her leave to remain. She understandably applied what Lord Brown had said in Szoma v Secretary of State for the Department of Work and Pensions [2005] UKHL 64 [2006] 1 AC 564, which I consider below, and held that the effect of the decision of the Tribunal that T was a refugee of itself entitled her to the protection of Article 32, and therefore was entitled to stay in this country.
The applicable statutory, Immigration Rule and Treaty provisions
14. Immigration and asylum appeals are the subject of Part 5 of the Nationality, Immigration and Asylum Act 2002. Sections 82 to 84 provide, so far as material:
Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part “immigration decision” means–
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
…
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
…
83 Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and–
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the...
To continue reading
Request your trial
-
R (on the Application of St (Eritrea)) v Secretary of State for the Home Department [Sup Ct]
...Hope, Deputy President Lady Hale Lord Brown Lord Mance Lord Kerr Lord Clarke Lord Dyson THE SUPREME COURT Hilary Term On appeal from: [2010] EWCA Civ 643 Appellant Richard Drabble Eric Fripp Emma Daykin (Instructed by Duncan Lewis Solicitors) Respondent Lisa Giovannetti QC Rory Dunlop (Ins......
-
G v G
...Airport [2004] UKHL 55; [2005] 2 AC 1; [2005] 2 WLR 1; [2005] 1 All ER 527, HL(E)R (ST) v Secretary of State for the Home Department [2010] EWCA Civ 643; [2010] 1 WLR 2858; [2010] 4 All ER 314, CAX v Latvia (Application No 27853/09) (2013) 59 EHRR 3; [2014] 1 FLR 1135, ECtHR (GC)The followi......
-
Upper Tribunal (Immigration and asylum chamber), 2013-01-17, [2013] UKUT 43 (IAC) (Dang (Refugee – query revocation – Article 3))
...application of ST (Eritrea)) v. SSHD [2012] UKSC 12 upholding the judgment of the Court of Appeal in the case in SSHD v. ST (Eritrea) [2010] EWCA Civ 643. 24. Apart from Article 28 of the Refugee Convention, which provides for Contracting States to issue to refugees lawfully staying in thei......
-
G v G
...territory”, i.e. a refugee recognised as such as a matter of national law ( Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643 at [39] per Stanley Burnton LJ with whom Sir Antony May PQBD and Longmore LJ 56 Article 33 provides, under the heading “Prohibition of E......