UK - HA v The Secretary of State for the Home Department, Upper Tribunal, 28 May 2015

Country of Decision:
Country of Applicant:
Date of Decision:
28-05-2015
Citation:
HA (Article 24 Qualification Directive) Palestinian Territories [2015] UKUT 00465 (IAC)
Court Name:
Upper Tribunal (Immigration and Asylum Chamber)
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Headnote: 

The Appellant appealed to the Upper Tribunal on the ground that he qualified for subsidiary protection under Article 2(e) and (f) of the Qualification Directive and was therefore entitled to a residence permit under Article 24(2) of the Qualification Directive.

In dismissing the appeal, the Tribunal found that: (a) Article 24 of the Qualification Directive does not confer a substantive right of residence in the member state concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented, and (b) the Procedures Directive is a truly adjectival instrument of EU legislation which does not create any substantive rights in the realm of asylum or subsidiary protection.

Facts: 

The Appellant originates from the Palestine National Authority (the “PNA”) but was habitually resident in Syria, where he lived with his family and where he was employed. The Appellant and his family had been granted refugee status in Syria. He entered the UK unlawfully in November 2007 and claimed asylum. The application for asylum was refused in 2010 and directions were made for the Appellant’s removal to the PNA. The Appellant appealed this direction and this was dismissed on all grounds by the First-tier Tribunal. Critical to this decision was the fact that the Appellant asserted a fear of persecution in Syria but was challenging a direction for his removal to the PNA. The Appellant did not assert that he would face persecution in the PNA.

The Appellant’s initial application and appeal were followed by an unsuccessful petition for judicial review, a series of rejected representations to the Secretary of State for the Home Department (the “Secretary of State”) and a further appeal which was dismissed.

In 2014, the Appellant made a further representation to the Secretary of State which was rejected on the basis that it did not constitute a fresh claim. The Appellant then challenged the Secretary of State’s decision before the First-tier Tribunal on the grounds that he was entitled to refugee protection due to being formerly habitually resident in Syria and stateless and therefore facing a real risk of serious harm for imputed opposition to the Syrian state due to his Palestinian origin under Articles 2 and 3 Refugee Convention and Article 15(c) Qualification Directive.

The First-tier Tribunal held on appeal that the Appellant did not fall within the scope of subsidiary protection under Article 15(c) of the Qualification Directive as the Appellant’s case was to be measured against his removal to Palestine rather than Syria, which was not proposed. His case did not show that he qualified for protection against that outcome.

The Appellant was then granted leave to appeal to the Upper Tribunal (the “Tribunal”) given that the case gave rise to an “important point of principle”.

The Appellant submitted to the Upper Tribunal that he qualified for subsidiary protection under Article 2(e) and (f) Qualification Directive and was therefore entitled to a residence permit under Article 24(2).

In presenting the case, the Appellant drew the attention of the Upper Tribunal to: (a) the opinion of Lord Hope in Regina (ST) v Secretary of State for the Home Department [2012] UKSC 12, where it was found that the Qualification Directive in some respects goes further than the Refugee Convention due to the requirement under Article 24(2) to issue a residence permit as soon as possible where an applicant qualifies as a refugee; (b) Articles 23, 24, 25 and particularly 27 of the Procedures Directive which relates to the ‘safe third country concept’; and (c) Articles 1 and 18 of the Charter of Fundamental Rights of the European Union (the “Lisbon Charter”) relating to the protection of human dignity and the right of asylum.

In reply, the Secretary of State submitted that whether a person can be lawfully expelled normally depends on the proposed country of destination (as operates under the Refugee Convention and ECHR) and this was not altered by the Qualification Directive. The Secretary of State further submitted that the only express prohibition for expulsion is that which forbids non-refoulement (under Article 21 of the Qualification Directive and Article 33 of the Refugee Convention) and submitted that what is not expressly prohibited is permitted.

Decision & Reasoning: 

The Tribunal looked to the overarching purposes of the Qualification Directive, taking into account recitals 1, 6, 10 and 25 of the Qualification Directive. The Tribunal concluded that the Qualification Directive contemplates the co-existence of the Refugee Convention and ECHR and that Article 24 of the Qualification Directive does not establish an independent right of residence in the Member State concerned but rather its function is to determine the modalities whereby a right of residence otherwise existing is to be documented and that its purpose is to ensure the practical exercise of a right where such right already exists (e.g. by providing that a residence permit must be issued as soon as possible).

Addressing the Appellant’s reliance on the Procedures Directive, the Tribunal found that it is only an adjectival instrument which does not create any substantive rights in the realm of asylum or subsidiary protection and therefore did not advance the Appellant’s case.

Finally, the Tribunal found that Articles 1 and 18 of the Lisbon Charter did not add anything to the Appellant’s case given that: (a) there is no evidence that the Appellant’s human dignity would be infringed by returning to the PNA, and (b) the issue in the appeal is not whether the Appellant is entitled to asylum, but rather that the Appellant qualifies for subsidiary protection.

Outcome: 

Appeal dismissed.

Observations/Comments: 

This case summary was written by Linklaters LLP.

Case Law Cited: 

UK - HS (Palestinian – Return to Gaza) Palestinian Territories CG [2011] UKUT 124 [IAC]

UK - Regina (ST) v Secretary of State for the Home Department [2012] UKSC 12