Upper Tribunal (Immigration and asylum chamber), 2022-01-24, PA/09415/2018
| Jurisdiction | UK Non-devolved |
| Date | 24 January 2022 |
| Published date | 10 February 2022 |
| Hearing Date | 21 July 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | PA/09415/2018 |
Appeal Number: PA/09415/2018
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/09415/2018
THE IMMIGRATION ACTS
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Heard at George House, Edinburgh |
Decision & Reasons Promulgated |
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On 21 July 2021 |
On 24 January 2022 |
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Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
A K O
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr A Caskie, instructed by SJK Solicitors
For the Respondent: Mr M Diwnycz, Senior Home Office Presenting Officer
DECISION AND REASONS
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The appellant appeals against the decision of the Secretary of State made on 18 July 2018 to refuse his protection claim. His appeal against that decision was dismissed by the First-tier Tribunal for the reasons set out in a decision promulgated on 5 September 2018. That decision was in turn set aside by Upper Tribunal Judge Finch for the reasons set out in her decision of 5 June 2020.
The Appellant’s Case
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The appellant was born in Gaza in the Palestinian Occupied Territories in 1974. He is stateless. His case, initially, was that he was at risk from Hamas in Gaza, and cannot return there; he also states he cannot go elsewhere in the Occupied Territories or to Israel. He has tried to obtain documentation from the Palestinian authorities but has been unable to do so. He has at times been destitute in the United Kingdom, and has sought voluntary return but has been unable to do so.
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The appellant arrived and claimed asylum in the United Kingdom in December 2007, having spent some time in France. His application was refused and by 24 February 2009 he had become appeal rights exhausted.
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On 22 June 2017 the appellant made further submissions to the Secretary of State This was the last in a series of further applications as set out in the appellant’s immigration history in the refusal letter at paragraphs [10]to [18]. On this occasion, she treated the submissions as a fresh claim, but refused it giving rise to this appeal.
The Respondent’s Case
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The Secretary of State had regard to the previous determination in this case (AA/10278/2008) in which his credibility was doubted, the judge noting that the appellant’s problems in the Palestinian National Authority related only to one part, Gaza, it would be reasonable to expect him to relocate. His account of being persecuted by Hamas was not accepted.
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Despite the further submissions, the Secretary of State did not accept the appellant was at risk of persecution from Hamas nor was she satisfied that his return to Palestine would be in breach of Article 15(c) of the Qualification Directive. Although accepting that he did not have a travel document, it was considered he could relocate within the Palestine National Authority and would be able to obtain a passport. It was considered also that as the appellant had sought a voluntary return in 2009, 2010 and 2015 and he had failed to provide evidence as to why he could not return again now, the Secretary of State noting the appellant had not demonstrated why he could not access documentation to facilitate voluntary return. It was not considered either that removal would be in breach of the United Kingdom’s obligations pursuant to Articles 2 or 3 or 8 of the Human Rights Convention.
The Hearing
Scope of the hearing
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In her decision of 3 June 2020, Upper Tribunal Judge Finch set aside the First-tier Tribunal’s decision, directing that it was to be remade de novo. On that basis, I have approached the remaking of the decision on the basis that none of the findings of fact made by Judge Agnew are retained.
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In reaching my decision I have taken into account the submissions made at the hearing and subsequently in writing, as well as the following:-
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Appellant’s bundle one
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Appellant’s bundle two.
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Letter plus three attachments (expert report from Dr Hafidh, his CV, a letter from the Palestinian representative in the United Kingdom).
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CPIN: Background Information, Including Actors of Protection and Internal Relocation OBT December 2018.
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CPIN Security and Humanitarian Situation, OBT (Gaza) March 2019.
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Home Office Fact-Finding Mission Report, Freedom of Movement Security and Human Rights Situation OBT March 2020.
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The appellant was not called to give evidence. Mr Caskie submitted that the appellant is a refugee within the terms of Article 1D of the Refugee Convention as he is outwith the territory where UNRWA is active and cannot return. He submitted that being stateless Palestinian outside the operation of UNRWA was sufficient to make him a refugee. He submitted also in line with the expert evidence that there was no practical means of return, and that it was unlikely he would be able to go anywhere or legalise his position in Gaza. He would therefore be residing illegally on return. He submitted that the appellant would not be able to get into Egypt without relevant documentation and thus there was no mechanism of him getting from Egypt to Gaza. He submitted that the protection of the appellant by UNRWA had ceased.
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In response, Mr Diwnycz said he had little to add, observing it was probably likely that the appellant is an Article 1D refugee but he did not concede that matter.
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I indicated that I would be giving directions for further written submissions to be served once I had had the opportunity to review the jurisprudence relevant to Article 1D which had not been provided. Having done so, I issued directions and have taken the subsequent further submissions from the appellant into account. Despite being given additional time, the respondent has not provided any submissions in reply.
The Law
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The appellant’s case turns on the interpretation of Article 1D of the Refugee Convention as set out in the Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection (“the Qualification Directive”). In the light of the United Kingdom’s withdrawal from the EU, consideration must be given to the extent that the Directive and the case law of the Court of Justice of the European Union (“CJEU”) is still binding.
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Article 1D provides:
D This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.
When such protection or assistance has ceased for any reason, without the position of such persons being definitively settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.
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The Qualification Directive provides at Article 12 as follows: -
Article 12
Exclusion
1. A third country national or a stateless person is excluded from being a refugee, if:
(a) he or she falls within the scope of Article 1 D of the Geneva Convention, relating to protection or assistance from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees. When such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the Nations, these persons shall ipso facto be entitled to the benefits of this Directive;”
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Following Ainte (material deprivation - Art 3 - AM (Zimbabwe)) [2021] UKUT 203 (IAC), I am satisfied that the Qualification Directive is still in force by operation of section 2 to 4 of the European Union Withdrawal Act 2018 (“EUWA 2018”). The reasoning in Ainte is strengthened by the fact that it is seen necessary to repeal the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525) by clause 29 (4) of the Nationality and Borders Bill 2021-22 (HC Bill 187).
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I am satisfied also that the Qualification Directive has direct effect – see Al-Khatib v SSHD [2016] CSIH 85 at [26]:
The Qualification Directive is a measure of European Union law having direct effect and therefore capable of imposing obligations on the relevant authorities in Member States from a date no later than 10 October 2006 when, in terms of Article 38 of the directive, Member States were required to bring into force provisions necessary to comply with its terms. As was explained by Lord Hope at para 45 of R (on the application of ST (Eritrea)), it was designed to give effect to the Tampere Conclusions which provided that there should be a Common European Asylum System, based on a full and inclusive application of the...
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