RY (Sri Lanka) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Vos |
| Judgment Date | 12 February 2016 |
| Neutral Citation | [2016] EWCA Civ 81 |
| Date | 12 February 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2013/1756 |
[2016] EWCA Civ 81
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Upper Tribunal Judges Storey and Pitt
IA/03532/2007
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Vos
and
Lord Justice Simon
Case No: C5/2013/1756
Mr S Chelvan (instructed by Patricks Solicitors) for the Appellant
Ms C Rowlands (instructed by Government Legal Department) for the Respondent
Hearing date: 26 January 2016
Introduction
This is an appeal from the determination of the Upper Tribunal (Immigration and Asylum Chamber), (Upper Tribunal Judges Storey and Pitt) promulgated on 21 March 2013 in which the Appellant's appeal against a decision by the Respondent to make a deportation order against him was dismissed.
The appeal raises the issue of how refugee status should be taken into account when considering the article 3 risks which may arise on deportation.
The facts
The Appellant, who was born in 1975, is a citizen of Sri Lanka. He entered the United Kingdom illegally on 27 December 1997 and claimed asylum the next day. His application was refused on 20 May 1999 and he appealed against that decision. Although his appeal was successful in the result, the Adjudicator made a number of adverse findings about his credibility in a determination made on 13 October 1999. The Adjudicator found that, although he had scarring on his body, he had not been tortured and had not left Sri Lanka irregularly. He found him to be a dishonest witness who was a scarred Tamil and, on that basis, was entitled to protection. The Respondent did not appeal the decision and, on 15 February 2000, he was granted refugee status and indefinite leave to remain.
In February 2002 he married his wife in India, and she was then granted leave to enter the UK as the spouse of a settled person. In January 2003 the couple had a son.
In October 2003 the Appellant was involved in a road traffic accident which resulted in the death of a young woman. She was 30 weeks pregnant at the time and the child could not be saved. The Appellant was arrested and charged with Causing Death by Dangerous Driving. He pleaded not guilty and was bailed to attend his trial. In January 2004 he absconded to Germany and remained at large for over a year. He did not tell his wife where he had gone and she was left to care for their young son without him.
In June 2005 he returned. He pleaded guilty to an offence under the Bail Act 1976, and was sentenced to a term of 8 months imprisonment. In July 2005 he pleaded guilty to Causing Death by Dangerous Driving and Conspiracy to Pervert the Course of Justice. He was sentenced to a term of 2 years and 3 months for the former offence and a consecutive term of 6 months for the latter offence. The total term of imprisonment of 2 years and 9 months was ordered to run consecutively to the sentence for the Bail Act offence. He was also banned from driving for 4 years and required to take an extended driving test.
In March 2007 he was released from prison and a subsequent one month period of immigration detention.
On 2 March 2007 the Respondent issued a decision to make a deportation order under s.3(5)(a) of the Immigration Act 1971 Act and, on 12 July 2007, certified the case under s.72(2) of the Nationality, Immigration and Asylum Act 2002 ('the 2002 Act') on the basis that the Appellant had been 'convicted of a particularly serious crime' and constituted 'a danger to the community of the United Kingdom.' It was said that the consequence of this decision was that his refugee status no longer prevented his return to Sri Lanka in the light of article 33(2) of the Refugee Convention. The letter went on to explain that he was excluded from the grant of Humanitarian Protection under the Immigration Rules, and that the Respondent considered that the decision to deport him would not breach either his rights under article 3 of the European Convention on Human Rights ('the ECHR') or his rights and those of his family under article 8 of the ECHR.
The Appellant appealed against the s.72 certification and against his deportation, and the appeal was dismissed by the Asylum and Immigration Tribunal ('AIT') in August 2007.
In October 2007, in breach of the terms of his licence and the driving ban that had been imposed in July 2005, he drove again and overturned his car. In December 2007 he was convicted of Driving while Disqualified and sentenced to a term of 12 weeks imprisonment.
The Appellant successfully appealed against the AIT's August 2007 decision on the basis that it disclosed a material error of law and the appeal was reconsidered by a panel which dismissed the appeal in a determination dated April 2008. The Appellant appealed that decision to the Court of Appeal and, after a single Lord Justice granted permission to appeal on the papers in September 2008, the parties agreed the terms of a Consent Order in March 2009. This recorded that the appeal against the April 2008 determination was allowed and the case was to be remitted to the AIT to be reconsidered in the light of the imminent judgment of the Court of Appeal in the linked cases of EN (Serbia) and KA (South Africa). Judgment in these cases was given on 26 June 2009 and was reported as EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, to which I refer later in this judgment.
In the meantime, in March 2008, the Appellant's wife and child were granted British citizenship, and a second child was born in this country in December 2009.
The applicable law
It is convenient to start with some of the articles of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by the 1967 Protocol (the 'Refugee Convention').
Article 1 of the Refugee Convention defines the term 'refugee'.
A. For the purposes of the present Convention, the term 'refugee' shall apply to any person who:
…
(2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
C: This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality …
Article 32 is headed, 'Expulsion'.
1. A Contracting State shall not expel a refugee lawfully on their territory save on the grounds of national security or public order
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law …
Article 33 is headed, 'Prohibition of expulsion or return ('refoulement').
1. 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.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
The Refugee Convention has been incorporated into domestic law for some purposes (for example, in order to define a claim for asylum) and has superior status to the Immigration Rules. However it does not have the force of statute nor a status superior to statutory instruments, see EN (Serbia) at [58]–[59].
The relevant domestic law derives from a number of sources and it is convenient to start with Section 72 of the 2002 Act, as amended by the United Kingdom Borders Act 2007.
72. Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from protection).
(2) A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is —
(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least two years.
…
(6) A presumption under subsection (2), ( 3) or (4) that a person constitutes a danger to the community is rebuttable by that person.
…
(11) For the purposes of this section—
(a) 'the Refugee Convention' means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol
Council Directive 2004/83/EC ('the Qualification Directive') was implemented in this country by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 ('the Qualification Regulations'). The purpose of the Qualification Directive was to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection, the content of the protection which should be afforded (see article 1) and the provision of a European...
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