Upper Tribunal (Immigration and asylum chamber), 2010-11-24, [2010] UKUT 422 (IAC) (RR (refugee-safe third country))
| Jurisdiction | UK Non-devolved |
| Judge | Mr H J E Latter, Dr HH Storey |
| Status | Reported |
| Date | 24 November 2010 |
| Published date | 29 November 2010 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 05 January 2010 |
| Subject Matter | refugee-safe third country |
| Appeal Number | [2010] UKUT 422 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
RR (refugee – safe third country) Syria [2010] UKUT 422 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 5 January 2010 |
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………………………………… |
Before
SENIOR IMMIGRATION JUDGE STOREY
SENIOR IMMIGRATION JUDGE LATTER
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
RR
Respondent
Representation:
For the Appellant: Mr J Gulvin, Home Office Presenting Officer
For the Respondent: Miss L Appiah of Counsel instructed by Charles Annon & Co.
1) Article 32 of the Refugee Convention applies only to a refugee who has been granted leave to enter and to stay in the United Kingdom in accordance with para 334 of the Immigration Rules: Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643 applied.
2) As Article 1A(2) of the Refugee Convention itself makes clear, in cases in which a claimant has more than one nationality, he will not qualify as a refugee if he can avail himself of the protection of another country of which he is a national.
3) In an asylum appeal in which the claimant has only one country of nationality (country A), it is permissible for the Secretary of State to propose more than one country of destination (country B etc): see JN (Cameroon) [2009] EWCA Civ 643 [23].
4) The question then, is whether by reference to A, the country of nationality, the claimant is a refugee. If he is not, the Refugee Convention does not apply to him. If he is, his appeal falls to be allowed only if his return to country B would be contrary to Article 33 of the Refugee Convention.
5) In any event, possible removal to a country not specified in the notice of decision under appeal is not a matter for the immigration judge.
DETERMINATION AND REASONS
1. The respondent (hereafter “the claimant”) is a national of Syria born on 21 March 1977. She is married to a national of Algeria. They have three children. On 5 June 2008 the Secretary of State made a decision to remove her from the United Kingdom having decided to reject her asylum claim. The Secretary of State also indicated that the intention was to remove the claimant either to Syria or Algeria. She appealed. In a determination notified on 25 July 2008 Immigration Judge (IJ) R B L Prior allowed her appeal on asylum, humanitarian protection and Article 3 ECHR grounds. That was on the basis that she had satisfied him she had a well-founded fear of persecution in Syria and that she was “a refugee from Syria with no prospect of obtaining the protection of a country other than the United Kingdom”. By the time of the hearing before the IJ, the Secretary of State had clarified that the intention was to issue directions for her removal to Algeria.
2. The reason why Algeria was identified as a removal destination stemmed from the claimant’s threefold links with that country, through her being married to an Algerian national, through having children who were Algerian nationals and through having lived there for some nine months immediately prior to flying to the UK in September 2007.
3. The Secretary of State was successful in obtaining an order for reconsideration. Following a hearing on 29 October 2008 before SIJ Storey the Tribunal found that the IJ had materially erred in law in several respects. In deciding that the claimant could not be removed to Algeria the IJ had relied merely upon the acceptance by the Presenting Officer that “he had no evidence to place before me to satisfy me that the claimant had any prospect whatsoever of obtaining entry to Algeria”. That wrongly placed the burden of proof on the Secretary of State. The IJ had also failed to understand that in deciding the issue under s 84(1)(g) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) the question was purely a hypothetical one undertaken on the assumption that the appellant will be returned: see GH [2005] EWCA Civ 1182. The IJ should not have treated the issue of whether or not an appellant/claimant had the necessary travel documentation as material, since it was a consideration that only became relevant at the stage when the Secretary of State issued (actual) removal directions. (We would observe that in HH and Others (Somalia) [2010] EWCA Civ 426 the Court of Appeal has confirmed that travel documentation is not a material issue: see [83]; also MS (Palestinian Territories) v Secretary of State for the Home Department [2010] UKSC 25, 16 June 2010, [26]-[27]).
4. The IJ also erred in allowing the appeal on both asylum and humanitarian protection grounds, as they are mutually exclusive.
5. The case was listed for a stage 2 determination, the parties being directed to adduce relevant authorities on the issue of whether a person accepted as being a refugee was entitled to the protection of the Refugee Convention (Article 32(1) in particular) in the context of a s 84(1)(g) ground of appeal, and to furnish information about Algerian law on family reunion.
6. Much of the hearing before us was devoted to submissions relating to Articles 33 and 32(1). Article 33 (headed “Prohibition of expulsion or return (”refoulement”) states:
“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 judgement of a particular serious crime, constitutes a danger to the community of that country.”
7. Article 32, headed “Expulsion”, states:
“1. The Contracting States shall not expel a refugee lawfully in their territory save on 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. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3. The Contracting States shall allow the application of the safe third country concept shall be subject to rules laid down in national legislation, including “rules requiring a connection such a refugee a reasonable period within which seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.”
8. Although at the date of the hearing we sat as judges of the Asylum and Immigration Tribunal (AIT), we must now complete it as judges of the Immigration and Asylum Chamber of the Upper Tribunal (UTIAC). The effect of legislative changes in force from 15 February 2010 is that our task now is to remake the decision.
9. We pause before going further to make three observations. First, we are not concerned here with every category of case in which immigration judges are required to consider a claimant’s situation in more than one country. In particular, we are not dealing here with the situation that arises when a claimant has dual or multiple nationality. In that category of case, even if a person can show he has a well-founded fear of persecution in one of his countries of nationality, he will not qualify as a refugee if he can avail himself of the protection of another country of which he is a national: see Sedley J in R v A Special Adjudicator, ex p Abudine [1995] Imm AR 60 at 63. As stated in the 1979 UNHCR Handbook at [106]:
“In the case of a person who has more than one nationality, the term “the country of his nationality”[in Article 1A(2) of the Refugee Convention] shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
10. Second, different considerations apply in cases (such as the instant case) in which the claimant has only one country of nationality but where the Secretary of State in the course of the appeal proceedings has proposed more than one country of destination. The fact that the respondent in this case has proposed in a notice first one, then another country of removal does not affect our jurisdiction to decide the appeal or impair the appellant’s ability to pursue her appeal. As stated by Richards LJ in JN (Cameroon) [2009] EWCA Civ 643 at [23]:
“the required statement in the notice is no more than a proposal as at the time of the notice: it is a statement of the proposed destination, and more than one destination may be proposed. What is and is not ultimately decided on as the actual destination and what is permissible as an actual destination, may depend upon the outcome of any appeal process and any further consideration by the Secretary of State.”
11. Third, the type of...
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