The Secretary of State for the Home Department v Aymen Mohammed Bashir Essa
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Grubb |
| Judgment Date | 09 February 2018 |
| Neutral Citation | [2018] UKUT 244 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 February 2018 |
[2018] UKUT 244 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Grubb
For the Appellant: Ms R Petterson, Home Office Presenting Officer.
For the Respondent: Mr C Howells, instructed by NLS Solicitors (Cardiff).
Essa (Revocation of protection status appeals)
1. An appeal under s 82(1)(c) is an appeal against revocation of the basis upon which the leave referred to in s 82(2)(c) was granted.
2. The only allowable ground under s 84(3)(a) is by reference to the Refugee Convention, and by s 86(2)(a) that matter must therefore be determined in all cases.
3. Where s 72(10) applies, however, the appeal must be dismissed even if the ground is made out.
The appellant is the Secretary of State. She appeals against the decision of Judge O'Rourke in the First-tier Tribunal allowing the appeal of the respondent, a national of Sudan whom we shall call ‘the claimant’, against her decision of 2 March 2017 to revoke his protection status by reference to para 339AC of the Immigration Rules.
The claimant came to the United Kingdom in February 2011, and claimed asylum. Following an appeal he was recognised as a refugee and granted refugee status. That he has a well-founded fear of persecution in Sudan as a non-Arab Darfuri is not now in dispute. In May 2013 he was sentenced to a term of nine years imprisonment following his conviction of serious offences. It is those offences that led the Secretary of State to make the decision under appeal. The Secretary of State took the view that the claimant is a person convicted of a particularly serious crime, and constitutes a danger to the community. Such a person, even if a refugee, can be removed from the territory of a State Party to the Refugee Convention because, as an exception to the general rule, such a person cannot claim the benefit of the prohibition on refoulment: see art 33(2) of the Convention.
The Secretary of State certified the present case under s 72(9) of the Nationality, Immigration and Asylum Act 2002 (as amended), with the effect that, on appeal against the revocation decision, Judge O'Rourke was obliged to begin his consideration by determining whether the art 33(2) exclusion applied, as set out in s 72(2) (3) and (4). He did that and found that the presumption in 72(2) applies: having been convicted in the United Kingdom of an offence and sentenced to a term of imprisonment of at least two years, the claimant falls to be presumed to be a person to whom art 33(2) applies. There is now no challenge to that part of his decision either.
Following the amendments to the appeal rights by the Immigration Act 2014, the claimant's right of appeal against the revocation decision was under s 82(1)(c) of the 2002 Act against the revocation of his ‘protection status’. That phrase is partially defined in subsection 82(2)(c): “a person has ‘protection status’ if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection”; and ‘refugee’ is further defined in paragraph (e) as having the same meaning as in the Refugee Convention. The only ground upon which the claimant could appeal to the Tribunal was that set out in s 84(3)(a), that ‘the decision to revoke the appellant's protection status breaches the United Kingdom's obligations under the Refugee Convention’.
Section 72(10) of the 2002 Act provides that if the Tribunal considers that the presumptions in s 72(2), ( 3) or (4) apply, it “must dismiss the appeal insofar as it relies on the ground mentioned in subsection 9(a)”, and for present purposes it is sufficient to note that the ground under s 84(3)(a) is mentioned in subsection 9(a).
It follows that, that being the only ground of appeal available to the claimant, and the judge having found that the presumption applies, he was obliged to dismiss the appeal. He observed as much in his decision at [29].
Judge O'Rourke then went on to consider the implications of a decision to this effect, assisted as he was by written submissions on behalf of the UNHCR. He noted that although the Refugee Convention provides for the cessation of refugee status where a person no longer fulfils the definition in art 1A(2) of the Convention, the Convention itself does not have provisions for the withdrawal of status where a person still falls within art 1, that is to say is outside his country of nationality, at risk of persecution for one of the five ‘Convention reasons’, and is not excluded by art 1F. Article 33(2) may permit the removal of such a person, but it does not provide for revocation of his status. In other words, a person to whom art 33(2) applies is a removable refugee, but still a refugee.
Judge O'Rourke concluded that the withdrawal of the claimant's status as a refugee was not, therefore, permitted by the Refugee Convention, and that withdrawing his refugee status would put the United Kingdom in breach of its obligations under that Convention. In these circumstances his decision was: “The appeal is allowed under the Refugee Convention”.
The Secretary of State's grounds of appeal do not mention s 72(10). They cite extensively from Dang [2013] UKUT 00043 (IAC). That was a case decided under the previous appeals provisions, in reference to a person who had been a refugee in the United Kingdom since before the amendments to the Statement of Changes in Immigration Rules, HC 395, made as a result of the Qualification Directive, 2004/83/EC. The principles set out there in relation to the meaning and effect of the Refugee Convention in cases of this sort, however, remain valid. What Dang decides is that the specific leave, permission or status granted to a refugee under national (or EU) law may be revoked in accordance with the terms of the relevant legal regime, but that even a removable refugee remains a refugee, and entitled to the benefits of the Convention, unless and until he is removed.
The difficulties in this area, explored in Dang, arise from the use of terms in the Immigration Rules themselves. It is clear from para 334 that ‘refugee status’ in the Rules is not the same as the...
To continue reading
Request your trial
-
Secretary of State for the Home Department v JS (Uganda)
...precise scope and operation of s.72(10) do not arise for consideration here ( c.f. Essa (Revocation of protection status appeals) [2018] UKUT 00244 (IAC)). Immigration Rules 50 As in force at the time JS was granted refugee status in May 2006, the Immigration Rules provided where relevant:......
-
Upper Tribunal (Immigration and asylum chamber), 2019-08-19, RP/00024/2017
...under the Refugee Convention. In accordance with the Upper Tribunal decision in Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC), where section 72(10) applies, an appeal to the Tribunal must be dismissed even if the Refugee Convention grounds are made Country Guidance Th......
-
Upper Tribunal (Immigration and asylum chamber), 2023-02-28, PA/02255/2019
...presumption, then I am bound to dismiss his protection claim, noting the authority of Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC). The gist of the appellant’s appeal on issue (1) is that he has a psychologist’s report indicating that he is at low risk of further off......
-
Upper Tribunal (Immigration and asylum chamber), 2022-10-12, RP/00021/2018
...to determine that the appellant was (still) a refugee, but to dismiss the appeal: see Essa (Revocation of protection status appeals) [2018] UKUT 244 (IAC). It follows that the first of the outcome decisions is Once we raised this issue at the hearing, Mr Bazini fairly accepted that this mus......