R (on the Application of St (Eritrea)) v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Mance,Lord Kerr,Lady Hale,Lord Clarke,LORD DYSON,LORD HOPE,Lord Brown
Judgment Date21 March 2012
Neutral Citation[2012] UKSC 12
Date21 March 2012

[2012] UKSC 12

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWCA Civ 643

before

Lord Hope, Deputy President

Lady Hale

Lord Brown

Lord Mance

Lord Kerr

Lord Clarke

Lord Dyson

R (on the application of ST (Eritrea)) (FC)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant

Richard Drabble QC

Eric Fripp

Emma Daykin

(Instructed by Duncan Lewis Solicitors)

Respondent

Lisa Giovannetti QC

Rory Dunlop

(Instructed by Treasury Solicitors)

Heard on 13 and 14 February 2012

LORD HOPE (with whom Lady Hale , Lord Brown , Lord Mance , Lord Kerr and Lord Clarke agree)

1

A refugee who has been granted a right of lawful presence in the receiving state needs the assurance that this right will not be withdrawn, with the result that he or she may again become an uprooted person in search of refuge. That assurance is given by article 32(1) of the Geneva Convention relating to the Status of Refugees (1951) (Cmd 9171) and the New York Protocol (1967) (Cmnd 3906), which provides:

"The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."

This provision is to be contrasted with article 33(1), which provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Every refugee has the protection of article 33. The protection of article 32 is more generous. Its effect is that, once a refugee has been admitted or his presence has been legalised and so long as entitlement to refugee status continues, he is entitled to stay indefinitely in the receiving state. He can only forfeit that right by becoming a risk to national security or by disturbing the public order. But he requires to have been afforded a certain degree of attachment to the receiving state before this privilege becomes available.

2

The question that this case raises is the extent of the attachment that is needed to attract that protection. Does the protection of article 32 extend to a refugee who has been temporarily admitted to the United Kingdom according to the rules of its domestic law and has engaged with the processes that its legislation provides to determine his status, but has not yet been given leave to enter or to remain here? In other words, does article 32 apply only to a refugee who has been given the right lawfully to stay in the contracting state, as its domestic law would answer that question? Or must the words "lawfully present in the territory" be given an extended and autonomous meaning, so as to ensure that a refugee who has not yet been given a right to remain in the territory is afforded protection under article 32 that extends beyond the basic obligation under article 33 not to expel or return ("refouler") to a territory where his life or freedom would be threatened for a Convention reason? Should they be given this extended meaning to prevent his removal to a country where he will not be able to enjoy the full extent of the rights that the Convention extends to a refugee?

The facts
3

The appellant is of Eritrean nationality. But she has never lived in Eritrea. She was born on 2 July 1981 and was formerly resident in Ethiopia. She came to the United Kingdom on 3 July 1998. Immediately on her arrival in this country she claimed protection as a refugee. Her reason was that she feared persecution in both Eritrea and Ethiopia. Her claim was registered, and she was granted temporary admission into the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971.

4

Paragraph 16 of Schedule 2 provides that a person liable to examination and removal upon his arrival in the United Kingdom may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter. Paragraph 21 of the Schedule provides that a person liable to detention under paragraph 16 may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained. Section 11(1) of the 1971 Act provides that a person who has not otherwise entered the United Kingdom shall be deemed (for the purposes of that Act) not to do so as long as he is detained, or temporarily admitted or released while liable to detention under the powers conferred by Schedule 2 to the Act.

5

The appellant's status has not changed since the date of her arrival more than 13 1/2; years ago. Her temporary admission has been extended from time to time, and she remains liable to detention. The latest notification of temporary admission was issued to her on 17 October 2011. She was told that she must reside at the address given on the notification form and she was to report to an immigration official on 22 December 2011 and then on the fourth Thursday every two months. She was also told that she was not allowed to work or engage in any business unless she had been explicitly granted permission to do so. These instructions assume that, as she has been given temporary admission only and is still liable to be detained, she is not entitled to the rights that articles 18 and 26 of the Convention afford to refugees who are lawfully in this country's territory: see para 23, below.

6

The appellant claimed in a statement made shortly after her arrival that she had a well-founded fear of persecution if she were to be returned to Ethiopia. This was because she was afraid that Ethiopia would send her to Eritrea. In a later statement she said that she feared persecution in Eritrea because she had not taken part in the war between Eritrea and Ethiopia. Her claims for asylum and humanitarian protection were refused in a letter dated 1 November 2004. In a notice of refusal of leave to enter dated 5 November 2004 she was informed that the Secretary of State proposed to give directions for her removal to Eritrea. She appealed to an adjudicator. In a decision that was promulgated on 14 February 2005 the adjudicator said that he was satisfied that she would be at serious risk of persecution or ill-treatment because of her religion as a born-again Christian if she were to be removed to Eritrea. But he was not satisfied that she would be considered as a draft evader or a deserter. He dismissed her appeal on the basis that she could safely be returned to Ethiopia.

7

The appellant sought permission to appeal to the Immigration Appeal Tribunal. This was on the basis that the adjudicator, having found her to be of Eritrean nationality, should have allowed her appeal as he found that she had a well-founded fear of persecution in Eritrea. On 23 January 2006 her appeal came before the Asylum and Immigration Tribunal, as the Immigration Appeal Tribunal had now become. It was conceded on behalf of the Secretary of State that her appeal should have been allowed, as the proposal that had been communicated to the appellant on 5 November 2004 was that directions were to be given for her removal to Eritrea. In his determination, which was promulgated on 1 February 2006 and forwarded to the appellant's representatives on 20 February 2006, the senior immigration judge said that the tribunal was satisfied that the adjudicator had erred in law. But, using the adjudicator's clear and reasoned findings of fact, which were not challenged, the tribunal found that the appellant was a refugee and that she was entitled to international protection as her fear of persecution for a Convention reason in Eritrea was well-founded. It also found that her removal to Eritrea would be unlawful as it would lead to her ill-treatment contrary to her protected rights under article 3 of the European Convention on Human Rights. The Secretary of State did not appeal against this decision.

8

On 24 August 2006 the Secretary of State issued a fresh "reasons for refusal" letter and served a new notice of decision to refuse the appellant leave to enter. Notwithstanding the fact that the appellant had already been recognised to be a refugee from Eritrea, she was told that this time her asylum and human rights claims had been examined on the basis that she was an Ethiopian national. She was refused leave to enter the United Kingdom, and she was notified that it was proposed to give directions for her removal to Ethiopia. The letter stated that, in the light of all the evidence available, it had been concluded that the appellant had not established a well-founded fear of persecutions in Ethiopia and did not qualify for asylum, that her asylum claim was refused and that it had been recorded as determined on 1 November 2004. It also stated that it had been concluded that her removal would not be contrary to the United Kingdom's obligations under the ECHR.

9

The appellant lodged an appeal against this decision in order to protect her position. But her primary position is that she is entitled to the status of a refugee on the basis of the determination by the Asylum and Immigration Tribunal of 1 February 2006. On 25 September 2006 the appellant commenced these proceedings for judicial review of the decision of 24 August 2006. She seeks a mandatory order requiring the Secretary of State to implement the decision of the AIT granting her leave to remain in the United Kingdom as a refugee, and an order quashing the decision in the letter of 24 August 2006 refusing her leave to remain and proposing that directions be given for her removal to Ethiopia. The Ethiopian appeal has been adjourned pending the outcome of these proceedings.

10

In a letter dated 13 November 2006 which was annexed to his Summary Grounds of Defence the Secretary of State informed the appellant's solicitors that he was no longer proceeding on the basis that the appellant was an Ethiopian...

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