Upper Tribunal (Immigration and asylum chamber), 2009-07-20, [2009] UKAIT 29 (MM (Status of recognised mandate refugees))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr N W Renton |
| Status | Reported |
| Date | 20 July 2009 |
| Published date | 20 July 2009 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 22 May 2009 |
| Subject Matter | Status of recognised mandate refugees |
| Appeal Number | [2009] UKAIT 29 |
MM (Status of recognised mandate refugees) Iran [2009] UKAIT 00029
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Birmingham Date of Hearing: 22 May 2009
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Renton
Between
MM
Appellant
And
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr B Bedford instructed by Sultan Lloyd Solicitors
For the Respondent: Mr N Smart, Home Office Presenting Officer
There is no requirement for a State Party to the Refugee Convention to treat as a Convention refugee a person who has been recognised as a mandate refugee within the competence of the UNHCR.
DETERMINATION AND REASONS
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The Appellant, a national of Iran, appealed to the Tribunal against the decision of the Respondent on 21 May 2007 to give directions for his removal as an illegal entrant, having refused him asylum. The removal destination proposed in the notice of decision is Iran. The Tribunal dismissed his appeal on the basis that the Appellant had no well-founded fear of persecution in Iran. The Appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
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The Appellant’s history is as follows. He was born in Iran. His father was closely involved with a body called the KDPI and as a result thought it was advisable to leave Iran. He therefore moved to Iraq and the Appellant lived with him there for some sixteen or seventeen years. We were not told whether either father or son had any lawful immigration status in Iraq. Subsequently, the Appellant moved to Turkey, and from there he came to the United Kingdom. It is accepted that he entered the United Kingdom illegally. His claim to asylum in the United Kingdom was made 6 October 2006.
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That was not the first claim for asylum that he had made. He had claimed asylum in Turkey. Turkey is a party to the 1951 Convention Relating to the Status of Refugees, but not to the 1967 Protocol. It therefore does not recognise as Convention refugees individuals whose claim arises after 1950, and, in addition, has made a declaration under Art 1B confining the application of the Convention to those whose fear arises from events occurring in Europe before 1 January 1951. But, as a party to the 1951 Convention, Turkey accepts the jurisdiction of the United Nations High Commissioner for Refugees, as set out in the Statute annexed to Resolution 428(V) adopted by the General Assembly on 14 December 1950. Refugee status determination in relation to those not falling within the Convention as it operates in Turkey is undertaken by the UNHCR. Those whose claims the UNHCR accepts are “mandate refugees”, and are issued with a document intended to evidence the identity of the claimant.
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The Appellant’s claim in Turkey was accepted by the UNHCR. He was issued with the relevant document, of which we have seen a copy, on 7 January 2004.
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In assessing his claim under the 1951 Convention made in the United Kingdom, the Respondent appears to have taken no notice at all of the fact that the Appellant had established mandate refugee status in Turkey. The Respondent rejected the Appellant’s claim because it was considered that he had not made out his case. When the Tribunal heard the appeal, there was argument relating to the decision-making process adopted by the Secretary of State and to the effect of the grant of mandate refugee status. The Tribunal did not ignore that grant. But it nevertheless considered, on the basis of the material before it as a whole, that the Appellant had not established his claim to have a well-founded fear of persecution in Iran. It therefore dismissed the appeal.
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Mr Bedford made a number of submissions to us, some of which, if we may say so, were wild in the extreme. We may summarise them without injustice as follows.
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First, the Secretary of State and the Tribunal were not entitled to go behind the grant by the UNHCR. In accepting him as a mandate refugee the UNHCR had determined in the Appellant’s favour precisely the same questions that the Secretary of State had to determine in deciding his claim under the Convention. The Convention’s requirement in Art 35 that the Contracting States undertake to co-operate with the office of the UNHCR, prohibits Contracting States from reaching a view contrary to that of the UNHCR in the assessment of an individual case. Although that obligation was, before 10 October 2006, an obligation merely in international law, unenforceable in the English courts, it became a matter of enforceable European law on that date: that was a consequence of the coming into force of the Qualification Directive 2004/83/EC. Thus the assessment of the Appellant’s claim by the UNHCR was binding on the Secretary of State and binding on the Tribunal.
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Secondly, the Appellant, being a person with a well-founded fear of persecution in Iran, and being (by whatever means) in the United Kingdom, was entitled to the benefits of the Qualification Directive, including the grant of a right of residence for three years under Art 24 of that directive. The provisions of the Procedures Directive, 2004/85/EC (which might otherwise have allowed the United Kingdom not to grant a right of residence), did not apply to the Appellant’s claim as his right to a residence permit arose before the Procedures Directive came into force on 1 December 2007.
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We have read the letter from the UNHCR indicating its view that the establishment of mandate refugee status should be regarded by States Party to the 1951 Convention as establishing the individual’s claim to refugee status under the Convention. But we entirely reject Mr Bedford’s submission. First, there is neither in that letter, nor in any other material to which he was able to direct our attention, any suggestion that the obligation of co-operation is an obligation laid upon Contracting Parties to accept, and regard themselves as bound by, a determination of status by the UNHCR. Such an obligation is not implicit in the nature of co-operation, and is not mentioned in any of the places where one would expect that it might be mentioned if it applied. It is not, for example, mentioned in the letter to which we have referred. Mr Bedford sought to explain that omission on the ground that an obligation arising from European law would not be one to which the UNHCR would naturally refer. But Mr Bedford’s case is that before it became an obligation in European law it was an obligation in international law arising from Art 35 of the Convention, and the UNHCR operates under international, not European law. So his explanation does not meet the point.
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Secondly, Mr Bedford was unable to refer us to any materials suggesting that the obligation exists.
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Thirdly, the Qualification Directive, upon which Mr Bedford relies for the incorporation of the obligation into European law, does not suggest it exists, but, on the contrary, appears to us to suggest that it does not. Preamble 15 to the Directive reads as follows:-
“Consultations with the United Nations High Commission for Refugees may provide valuable guidance for member states when determining refugee status according to Article 1 of the Geneva Convention.”
We cannot envisage that the preamble would have been expressed in that form if there were an accepted obligation to comply with decisions of the Commissioner. Mr Bedford sought to explain this submission by saying that preamble 15 refers to only general matters of country guidance. There is in our view no basis for that submission.
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Article 21 of the Procedures Directive refers to the role of the UNHCR and requires members states to allow the UNHCR to have access to applicants for asylum and to information on them, and:-
“(c) to present its views, in the exercise of its supervisory responsibilities under Article 35 of the Geneva Convention, to any competent authorities regarding individual applications for asylum at any stage of the procedure.”
Again, there is no suggestion...
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