United Kingdom's Upper Tribunal: asylum status under the Qualification Directive can be withdrawn without affecting refugee status under the Geneva Convention

Friday, October 4, 2013

The United Kingdom's Upper Tribunal (Immigration and Asylum Chamber) has held that no inconsistency between the Qualification Directive (and the British legislation implementing it) and the Geneva Convention of 1951 arises from the fact that the former provides for the revocation of asylum status and the second does not contain any provision on revocation of refugee status.

The appeals procedure concerns a Vietnamese national, Mr. Cuong Van Dang, who had enjoyed refugee status in the UK since he was a child because his father had been recognised as a refugee. Following a criminal sentence of more than two years' imprisonment against him, the Secretary of State of the Home Department decided to remove him back to Vietnam and to revoke his refugee status. This decision was upheld by the First-Tier Tribunal.

The Upper Tribunal observes, first, that Mr. Cuong Van Dang was not protected against refoulement anymore according to Article 33 of the Geneva Convention as he had been convicted of a particularly serious crime and he was a danger to the community of the UK. The Tribunal also considers the lawfulness of the purported revocation of refugee status and observes that, while the Geneva Convention of 1951 does not make any provision for revocation of refugee status, the Qualification Directive and the British legislation implementing it do foresee that possibility. For the Upper Tribunal this does not lead to an inconsistency between both instruments, as the statuses they confer upon individuals are different and independent. The Geneva Convention provides for a refugee status independent of recognition and does not foresee the granting of documents or of any form of leave to stay in the territory of a state. In contrast, the Qualification Directive goes beyond the Convention when it provides for the issuance of a residence permit of at least three years for those persons recognised as refugees by the EU Member States and creates a "European refugee status". For this reason, it makes sense for the Qualification Directive to provide for the revocation such a permit. However, the revocation of the asylum status under the Qualification Directive does not affect the concerned person's status as a refugee under the Geneva Convention, which the person may continue to have. In the case, the Upper Tribunal considers that Mr. Cuong Van Dang continues to enjoy such a status and that the First-Tier Tribunal erred in law when it concluded that the Secretary of State was entitled to revoke his refugee status under the Geneva Convention.

The Upper Tribunal also holds in this decision that there is not a presumption that, as long as an individual enjoys refugee status under the Convention, his removal back to his country of nationality will constitute a breach of Article 3 ECHR. According to the case law of the European Court of Human Rights, the relevant circumstances to assess whether removal would imply a breach of Article 3 are the present circumstances. The fact that someone was recognised as a refugee in the past may shed some light on the current situation and the prospective Article 3 risk, but the question whether there is a real risk of Article 3 treatment must be assessed according to present circumstances and is forward looking.

See the full text of the judgment on UNHCR's Refworld website.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Cessation of protection
Revocation of protection status
Serious non-political crime
Assessment of facts and circumstances
Refugee Status
Inhuman or degrading treatment or punishment
Residence document