SH (Palestinian Territories) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Scott Baker,Lord Justice Wilson,Lord Justice Wall
Judgment Date22 October 2008
Neutral Citation[2008] EWCA Civ 1150
Date22 October 2008
Docket NumberCase No: C5/2008/0332/AITRF

[2008] EWCA Civ 1150

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Before:

Lord Justice Scott Baker

Lord Justice Wall and

Lord Justice Wilson

Case No: C5/2008/0332/AITRF

Between:
SH (Palestinian Territories)
Appellant
and
Secretary Of State For The Home Department
Respondent

Mr Christopher Williams (instructed by Messrs Arden) for the Appellant

Mr Jeremy Johnson (instructed by Treasury Solicitor) for the Respondent

Hearing date: 24 July 2008

Lord Justice Scott Baker
1

The appellant is a stateless Palestinian from the West Bank and this appeal raises the same point as that in MT (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 1149. That point is whether this court is bound by the earlier decision of this court in MA (Palestinian Territories) v Secretary of State for the Home Department [2008] EWCA Civ 304. MA decided that denial of return to a stateless person to his country of former habitual residence did not of itself give rise to recognition as a refugee under the 1951 Geneva Convention relating to the status of refugees. Unfortunately it was not possible for administrative reasons for MT and the present case to be heard consecutively by the same constitution. However, Mr Christopher Williams, who has appeared for the appellant in the present case, adopts all of Mr Fordham's arguments in MT and indeed has annexed a copy of Mr Fordham's skeleton argument in that case to his own.

2

Both Mr Fordham and Mr Williams have made clear that they wish to reserve their positions on whether MA was correctly decided in the event that, as in my view is the case, it is a binding authority that determines the outcome of the appeals to this court in MT and the present case.

3

I do not repeat in this judgment the reasons I gave in MT why, in my view, MA is indistinguishable. In short, the argument of the appellants in both MT and the present appeal focuses on the observations of Maurice Kay L.J at para 26 and Lawrence Collins L.J at para 44 that it is not without more in principle persecutory to deny a stateless person re-entry to his country of former habitual residence. It is said that the “more” in both MT and the present case is that the exclusion was on the ground of race. However, in my view that is no distinction because MA, MT and the present appellants are all stateless Palestinians from the West Bank.

4

The facts of the present case are, of course, different from those in MT but I am unpersuaded that any difference is material to the extent that they provide the “more” without which the case falls within the principle in MA. Neither the appellant nor MT nor MA wants to return to the West Bank; each has unsuccessfully claimed that if returned he or she would be persecuted for a Convention reason.

5

The appellant is female but like MA and MT she has no wish to exercise any right of re-entry to the West Bank. How, it may be asked, can the refusal to permit her to exercise a right she does not wish to exercise amount to persecution? The facts of her case bear some examination because they do not lie easily with her contention that she will, on arrival at the King Hussein bridge be refused re-entry to the West Bank and thereby be subjected to persecution for a Convention reason, namely on the ground of race.

6

The appellant appeals against a re-consideration by Senior Immigration Judge Perkins promulgated on 28 November 2007. The sole ground of appeal is that his finding that depriving her of the right to return to the West Bank was not persecution was wrong in law.

7

She is aged 35 and travelled with her husband to the United Kingdom arriving in London on 30 June 2004. Her husband claimed asylum two days later, nominating the appellant and the children as dependants. The claim was refused on 31 August 2004 and the appeal against that decision was dismissed on 18 December 2004.

8

The appellant's husband applied to the Palestinian General Delegation for papers to enable return to the West Bank but was told on 3 October 2006 that passports could only be issued in Palestine and not in the United Kingdom.

9

On 17 November 2006 the appellant applied for asylum naming her husband and the two children as dependants. In brief her case was that her husband had worked in Israel as a farm supervisor where he became friendly with two men who, unknown to him, were members of Hamas. The two men were murdered and armed men from Hamas went to the family home in an effort to find the appellant's husband who, they assumed, had been instrumental in securing the death of the Hamas members. They told the appellant that her husband was a traitor and ordered her to be divorced. The appellant, her husband and their children left Israel and made their way to the United Kingdom. The appellant and her husband were told by family members in November 2006 that they were both still being sought by Hamas.

10

The immigration judge disbelieved the appellant and applied AB and Others (Risk – Return – Israeli Checkpoints) Palestine CG [2005] UKIAT 00046 that there was no general risk to people returning to the West Bank. He also relied on AK (Palestine) v Secretary of State for the Home Department [2006] EWCA Civ 117 holding that if the appellant and her family were refused admission into or out of Israel the circumstances of statelessness would not result in such a refusal amounting to persecution or a breach of other international rights. The immigration judge's attention was not drawn to MA (Palestinian Arabs – Occupied Territories – Risk) Palestinian Territories CG [2007] UKAIT 00017 the decision in which was promulgated by the AIT after the argument but before his decision. That decision was appealed to the Court of Appeal and their decision is the one that is in my judgment binding on the present case.

11

A reconsideration was eventually ordered by Dobbs J. and the matter was heard afresh by Senior Immigration Judge Perkins. He said at para 26:

“I do not accept that the act of removing some right to which a person would otherwise be entitled is of the same magnitude of interference as refusing to renew a licence to do something that was tolerated. Ordinary general knowledge is enough to show that a very large number of people identifying themselves as Palestinians live in extremely difficult conditions in places governed by people who are not Palestinians. A Palestinian living in the West Bank has no rights in the state of Israel. If the state of Israel refuses to permit him to return he has lost nothing. In reality he will have to do his best to establish himself in another country where he will be tolerated but not truly belong.”

12

He went on to rely on MA which was at that stage a country guidance case in the tribunal. He said that in the absence of special evidence and following the decision in MA he did not accept that the harm caused to the appellant in the event of her being refused re-admission was so severe that it entitled her to international protection. He continued:

“If the appellant cannot be returned she will have lost her home. She left that when she left Israel. Generally, a person in her circumstances can re-establish herself elsewhere without fear of serious ill-treatment. There is no reason to find that this appellant's circumstances justify different findings.”

13

MA appealed to this court against the decision of the tribunal. This court's decision is at [2008] EWCA Civ 304. The respondent submits that the only question in the present appeal is whether Israel's likely refusal to permit the appellant to re-enter the West Bank if she is forcibly removed there amounts to persecution; the answer is that it is not and MA is determinative of this appeal.

14

Mr Jeremy Johnson, for the Secretary of State, points out that the appellant's reliance on refusal of re-entry emerged after her husband's asylum claim had been refused and an appeal dismissed. She did not adduce any evidence on the point, and there are therefore no relevant factual findings. He submits the factual context must be taken to be that the appellant would be able to enter the Occupied Territories if she returned voluntarily with the appropriate documentation, but that she would not be able to do so if she was forcibly returned without the appropriate documentation.

15

Mr Johnson developed his argument that the appellant's re-entry point was the last roll of the dice and that her actions mirrored those of her husband. He pointed out that it is very important to look at such evidence as there is. The argument was first raised before the AIT in para 2 of the appellant's skeleton argument of 12 February 2007 where it was said:

“The appellant and her family have previously applied for permission to travel to the West Bank. This has not been processed by the Palestinian Delegation Office. In the case of AB [2005] it is confirmed that the Palestinian Delegation Office cannot assist with returns to the Occupied Territories.”

But, submits Mr Johnson, the point was raised in an evidential vacuum.

16

The Deputy Head of Mission of the Palestinian General Delegation in London wrote to the appellant's husband on 3 October 2006 in the following terms:

“With reference to your request to issue you a Palestinian passport to enable you to travel back to Palestine, we in the Palestinian General Delegation in the UK cannot issue any passports as all passports must be issued in Palestine to Palestinians who are resident in the West Bank and the Gaza Strip. For Palestinian I.D cardholders there...

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