UK - Court of Appeal, 18 June 2010, FA (Iraq) v Secretary of State for the Home Department [2010] EWCA Civ 696

Country of Decision:
Country of Applicant:
Date of Decision:
18-06-2010
Citation:
[2010] EWCA Civ 696
Court Name:
Court of Appeal of England and Wales
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Headnote: 

In UK domestic law, if a person has made a claim for asylum but his claim has been rejected by the Secretary of State, but he has been given leave to enter or remain in the United Kingdom for over a year, the person can appeal to the Tribunal on the grounds that he or she is a refugee in order to ‘upgrade’ his or her status. The Court held that the general principle of equivalence in EU Law requires that the appeal right against the rejection of the claim cannot be restricted to the grounds that the applicant is a refugee but must also allow the applicant to appeal on the grounds that he is entitled to subsidiary protection.

Facts: 

The applicant was an Iraqi national, born in Kirkuk in 1991.  He came to the UK in August 2007 as an unaccompanied minor and claimed asylum. His claim for asylum and subsidiary protection was refused but he was granted Discretionary Leave for a period for 3 years. He appealed under the Nationality, Immigration and Asylum Act 2002, section 83 on the grounds that his removal would breach the 1951 Convention and that he was entitled to subsidiary protection.  On reconsidering the appeal, the Tribunal held that the statute mandated that his appeal was limited to 1951 Convention grounds, adding that “[t]he appellant cannot appeal at this moment of time on either human rights or [subsidiary] protection as he is not being removed from the United Kingdom and is therefore not at risk”.  It dismissed the appeal.  The applicant appealed to the Court of Appeal. 

Decision & Reasoning: 

The applicant argued that the Nationality, Immigration and Asylum Act 2002, section 83 ought to be interpreted to allow applicants to appeal on the grounds that he or she is entitled to either asylum or subsidiary protections if he or she met the other conditions.  Those conditions, set out in the section, are that the applicant had made an asylum claim, the claim had been rejected, and the applicant had been granted leave to enter or remain for a period exceeding more than 1 year (or for periods exceeding 1 year in aggregate).

The Court held that if it this were a matter purely of domestic law the Statute should be interpreted limiting the upgrade appeal to the ground that that removal (if threatened) would breach this country’s obligations under the 1951 Refugee Convention.  However, the general principle of EU law of equivalence applied to the EU law rights provided for by the Qualification Directive.  The principle mandates that the procedural protections provided in domestic law must not be less favourable than the rule governing similar domestic proceedings.  A claim for subsidiary protection was sufficiently similar to a claim for refugee status brought in domestic law because, as held by Lord Justice Pill, “[r]ecipients of subsidiary protection have a “status” just as do refugees and it brings significant rights with it”. He concluded that “[t]he rights of a refugee, as now provided in national law, and the rights of a person with subsidiary protection status, as provided by the Directive are in many respects similar.  They are sufficiently similar, in my judgment, to require national law to provide the person seeking international protection of that kind to have the same remedy of recourse to an independent tribunal against an adverse decision of the Secretary of State as has a person seeking international protection as a refugee.”

Outcome: 

Appeal allowed, the First Tier Tribunal Immigration and Asylum Chamber was directed to hear the applicant’s appeal against the refusal of humanitarian protection.

Subsequent Proceedings : 

The Secretary of State has obtained permission to appeal to the Supreme Court. As at December 2011: The Supreme Court decided to make a request the Court of Justice of the European Union to make a ruling on a preliminary reference (see FA (Iraq) v Secretary of State for the Home Department [2011] UKSC 22)

Observations/Comments: 

It is worth noting that Lord Justice Longmore held in paragraph 16 of his judgment that the UK Immigration Rules “...do not, as such, constitute the law of the United Kingdom. Their status is no more than an indication of the way in which the Secretary of State will or will not exercise his or her discretion in relation to immigration matters It is therefore doubtful if it can be said that the Qualification Directive has been formally transposed into United Kingdom law at all. Since it is directly applicable, that is a matter of no consequence”.

Other sources cited: 

Immigration and Asylum Act 1999, s69(3), Nationality Immigration and Asylum Act 2002, sections 82, 83, 84, 85A, 86, 92, 94, 113

Immigration Rules HC395, paragraphs 327, 339C, 339Q, 344B, 352FA,

FD and FG T. Tridimis, The General Principles of EU Law, 2nd edition.