Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 85

XA112/15

 

Lord Brodie

Lord Bracadale

Lord Malcolm

OPINION OF THE COURT

delivered by LORD BRODIE

in the appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007

by

HASSAN MAHMUD AL-KHATIB

Appellant

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Appellant:  K J Campbell QC, Bryce; McGill & Co

Respondent:  Komorowski; Office of the Advocate General

18 November 2016

The Appeal

[1]        This is an appeal under section 13 of the Tribunals, Court and Enforcement Act 2007 against a decision of the Upper Tribunal (Immigration and Asylum Chamber), as constituted by the President and Upper Tribunal Judge Macleman, dated 10 July 2015 and promulgated on 31 July 2015.  The issue it raises is whether Council Directive 2004/83/EC ( “the Qualification Directive”) confers on a person unlawfully present in the United Kingdom a free-standing entitlement to leave to remain where that person is stateless and would face a real risk of suffering serious harm if returned to his country of former habitual residence (here Syria) but where the Secretary of State (hereinafter “the respondent”) proposes to remove him to a place where he faces no such risk (here the territory of the Palestinian National Authority (“the PNA”)).  The issue turns solely on the proper interpretation of the relevant instruments.  It falls to be determined in a case where, for the purposes of argument, it is accepted that the appellant is not someone to whom the Geneva Convention of 1951 Relating to the Status of Refugees, as amended by the Protocol to the Convention of 1967 (“the Refugee Convention”, otherwise “the Geneva Convention”) applies by virtue of Article 1D of the Convention, as interpreted in the opinion of the Advocate-General (Sharpston) in Bolbol v Bevándorlási és Állampolgársági Hivatal Case C-31/09 [2012] All ER (EC) 469, [2012] INLR 296. 

[2]        It is the appellant’s contention that, as a Palestinian formerly habitually resident in Syria and present in the United Kingdom since 2007, he is entitled to subsidiary protection, and therefore leave to remain, by virtue of the Qualification Directive. He supports that contention by reference to Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”). The respondent disputes that that is the effect of the respective directives in circumstances where it is proposed to remove the appellant to the territory of the PNA.

[3]        Both parties submit that their respective interpretations and the consequent applications of the relevant provisions of the Qualification Directive are acte clair. Accordingly neither has suggested that it is necessary to make a reference to the Court of Justice in terms of Article 267 of the Treaty on the Functioning of the European Union.

 

The Appellant’s Immigration History

[4]        The appellant’s date of birth is variously stated in the material before the court as being either 20 or 28 March 1985. He or at least his immediate family originates from the territory of the PNA (albeit that the appellant avers that he has lived in Syria for his whole life) and he is accordingly described in his Appeal as stateless, given that Palestine is not a state recognised in international law (cf Said (Article 1D: interpretation) [2012] UKUT 00413 (IAC) para 2). A family registration card including the appellant was issued by the United Nations Relief and Works Agency (“UNRWA”) in Gaza in February 2004. He therefore can be taken as having been in receipt of or had available protection and assistance from UNRWA. Prior to his unlawful entry into the United Kingdom in November 2007, the appellant was habitually resident in Syria where he had been granted refugee status. On arrival in the United Kingdom the appellant claimed asylum. That claim was refused, as was an appeal (the “first appeal”) against that decision by determination promulgated on 20 May 2010. The appellant’s account of persecution in Syria was disbelieved. The appellant’s application to appeal the determination of 20 May 2010 to the Upper Tribunal was refused.  Following an application to the Court of Session for judicial review, further representations to the respondent, dated 27 March 2012, were submitted on behalf of the appellant under reference to paragraph 353 of the Immigration Rules. The respondent’s response to these representations is contained in her decision letter of 14 January 2014 in terms of which she refused to recognise the appellant as a refugee under the Refugee Convention (by reason of his having left the protection available to him at the time in Syria of his own volition – applying Bobol); did not accept that the appellant qualified for subsidiary protection under the Qualification Directive; determined that to remove the appellant from the United Kingdom would not contravene his human rights; and having considered whether the further submissions constituted a fresh claim, decided under reference to paragraph 353B of the Immigration Rules that there were no exceptional circumstances which meant that removal from the United Kingdom was no longer appropriate. The notice of the respondent’s decision to remove the appellant from the United Kingdom was served on the appellant on 16 January 2014. As we have already observed, the respondent proposes to remove the appellant to the territory of the PNA. The Upper Tribunal notes in its decision of 10 July 2015 that there have been some 200 such enforced removals from the United Kingdom during the past 10 years.

[5]        The appellant appealed the respondent’s decision of 14 January 2014. The appellant explains in his note of argument for this court that that appeal arose under sections 82 and 84 of the Nationality Immigration and Asylum Act 2002 as they stood before amendment by the Immigration Act 2014, by virtue of the transitional provisions contained in Article 9(1)(d) of the relevant commencement order, namely SI 2014/2771, as amended by SI 2015/371, in respect that the removal directions appealed against were made before 6 April 2015. The contention on behalf of the appellant was that the decision appealed against was not in accordance with law and that therefore the appeal should be allowed under section 84(1)(e).

[6]        Although founded on in the grounds of appeal, before the First-tier Tribunal it was conceded on behalf of the appellant that he did not qualify for asylum under the Refugee Convention. He gave evidence that his father had arranged to obtain UNRWA registration cards for all members of the family. They had then been living in Syria. Rather than being persecuted in Syria, as the appellant had originally claimed, the immigration judge in refusing the appellant’s first appeal on 20 May 2010 found that the family had been granted refugee status in Syria. The appellant had left Syria and come to the United Kingdom because he wanted a better life (what was described in the note of argument for the appellant as “avowedly opportunistic reasons”). Nevertheless, it was contended that, quite independent of the Refugee Convention, the appellant was entitled to subsidiary protection by virtue of the Qualification Directive.  The First-tier Tribunal did not accept that contention and dismissed the appellant's appeal on that ground (and also under reference to paragraph 276ADE of the Immigration Rules and Article 8 of the European Convention on Human Rights) by determination of 5 March 2014.

[7]        The appellant applied for permission to appeal the determination of 5 March 2014. Permission to appeal was refused by the Upper Tribunal on 8 May 2014. The appellant presented an application for judicial review seeking reduction of that refusal which was determined of consent in favour of the appellant’s application on 14 August 2014. Permission to appeal to the Upper Tribunal was then granted by the Vice President on 15 September 2014.

[8]        Before the Upper Tribunal the appellant’s case was founded on the Qualification Directive, as reinforced by provisions of the Procedures Directive and Articles 1 and 18 of the Charter of Fundamental Rights of the European Union. The Upper Tribunal refused the appellant’s appeal in terms of decision and reasons dated 10 July 2015 and promulgated on 31 July 2015.  Permission to appeal to this court was then granted by the President of the Upper Tribunal (Immigration and Asylum Chamber) on 22 October 2015.

 

The Refugee Convention

[9]        The appellant does not found on the Refugee Convention but it featured in argument as bearing on the effect to be given to the Qualification Directive.

[10]      As is familiar, the United Kingdom, together with another 143 Contracting States, including all the member states of the European Union, is a signatory to the Refugee Convention. The website of the United Nations High Commission for Refugees states that the core principle of the Refugee Convention is “non‑refoulement”, that is that a refugee should not be returned to a country where they face serious threats to their life or freedom for certain specified reasons (otherwise “persecution”). That principle finds particular expression in Articles 32 and 33 of the convention which, in so far as relevant, provide:

“32.1 The Contracting States shall not expel a refugee lawfully in their territory, save on grounds of national security or public order

…

33.1 No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion

…”

 

[11]      In terms of Article 1A of the convention the term “refugee” shall apply to any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protections of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it

…”

However, that is subject to Article 1D of the convention (a provision only concerned with Palestinian Arabs: El-Ali v Secretary of State for the Home Department [2003] 1 WLR 95 Laws LJ at para 22) which provides, inter alia:

“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.”

 

Article 1D was the subject of interpretation by the Court of Appeal in El-Ali. However that interpretation was disapproved by the Court of Justice of the European Union in Bobol (a reference by the Metropolitan Court of Budapest in relation to Article 12(1)(a) of the Qualification Directive): supra at para 47. The Court of Justice did not find it necessary to answer all the questions which had been referred to it in relation to interpretation of Article 1D.  Accordingly it becomes important to have regard to the terms of Advocate General Sharpston’s opinion and in particular to para 90 where she summarises her conclusions on the proper construction of Article 1D of the Refugee Convention:

“90. The construction that I propose in dealing with each of the four points of interpretation involves reading the two sentences that together comprise Article 1D in a way that will generate the following set of outcomes:
(a) a displaced Palestinian who is not receiving UNRWA protection or assistance is not excluded ratione personae from the scope of the Convention: he is therefore to be treated like any other applicant for refugee status and to be assessed under Article 1A (avoidance of overlap between UNRWA and the UNHCR; application of the principle of universal protection);
(b) a displaced Palestinian who is receiving protection or assistance from UNRWA is excluded ratione personae from the scope of the Convention whilst he is in receipt of that protection or assistance (avoidance of overlap between UNRWA and the UNHCR);
(c) a displaced Palestinian who was receiving protection or assistance from UNRWA but who, for whatever reason, can no longer obtain protection or assistance from UNRWA ceases to be excluded ratione personae from the scope of the Convention (application of the principle of universal protection); however, whether he is then ipso facto entitled to the benefits of the Convention or not depends on why he can no longer obtain such protection or assistance;
(d) if such a displaced Palestinian can no longer benefit from UNRWA protection or assistance as a result of external circumstances over which he had no control, he has an automatic right to refugee status (application of the principle of special treatment and consideration);
(e) if such a displaced Palestinian can no longer benefit from UNRWA protection or assistance as a result of his own actions, he cannot claim automatic refugee status assessed on its merits under Article 1A (application of the principle of universal protection and fair treatment for all genuine refugees; proportionate interpretation of the extent of special treatment and consideration to be afforded to displaced Palestinians).”

 

[12]      In her decision letter of 14 January 2014 the respondent adopted Advocate General Sharpston’s interpretation of Article 1D and in particular what appears at para 90 (e) of her opinion and accordingly determined that the appellant was not entitled to automatic refugee status by reference to the Refugee Convention because he had voluntarily left Syria when, if he had so wished, he could have remained and there received the support and assistance of UNRWA to which he was entitled.

[13]      In the appeal to this court it is accepted by parties that as at the present date, on the one hand the appellant would be at risk of serious harm if returned to Syria (as someone not positively aligned with the regime: KB (Failed asylum seekers and forced returnees) Syria CG UKUT 00426 (IAC) para 2) and on the other hand (subject to the appellant’s contention that the PNA cannot be or at least is not a safe third country as provided by the Procedures Directive) he would not be at risk of serious harm if returned to the territory of the PNA.

The Tampere Conclusions
[14]      The European Council held a special meeting on 15 and 16 October 1999 in Tampere, Finland, on the creation of an area of freedom, security and justice in the European Union. The Qualification Directive can be seen as a product of that meeting. After the meeting the Council issued certain conclusions. These included the following:

“13. The European Council reaffirms the importance the Union and Member States attach to absolute respect of the right to seek asylum. It has agreed to work towards establishing a Common European Asylum System based on the full and inclusive application of the Geneva Convention, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement.

14. This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to a person in need of such protection. To that end, the Council is urged to adopt, on the basis of Commission proposals, the necessary decisions according to the timetable set in the Treaty of Amsterdam and the Vienna Action Plan. The European Council stresses the importance of consulting UNHCR and other international organisations.”

 

 

The Qualification Directive
[15]      Article 63 (1) of the Treaty Establishing the European Community required the Council to adopt “measures on asylum, in accordance with the Geneva Convention …and the Protocol …relating to the status of refugees and other relevant treaties.” Pursuant to that provision, and following the urging of the Tampere conclusions, the Council adopted the Qualification Directive which entered into force on 20 October 2004. The United Kingdom has sought to transpose the directive in terms of the Refugee or Person in Need of International Protection (Qualification) Regulations SI 2006/2525 and amendments to the Immigration Rules but, given its direct effect, both before the Upper Tribunal and this court, the argument has exclusively been by reference to the directive; neither the Regulations nor the relevant Rules featured at all in submission. Whereas the Qualification Directive was recast by European Parliament and Council Directive 2011/95/EU the latter instrument does not apply to the United Kingdom by virtue of an opt-out provision and accordingly again no reference was made to the 2011 text during submissions to the court.

[16]      The recitals to the Qualification Directive include the following:

“(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

(2) The European Council at its special meeting in Tampere on 15 and 16 October 1999 agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951 (Geneva Convention), as supplemented by the New York Protocol of 31 January 1967 (Protocol), thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.

(3) The Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees.

…

(6)The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States.

…

(10)This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.

…

(25) It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.”

 

The Articles of the directive include the following:

Chapter I

GENERAL PROVISIONS

Article 1

Subject matter and scope

The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

Article 2

Definitions

For the purposes of this Directive:

(a)  ‘international protection’ means the refugee and subsidiary protection status as defined in (d) and (f);

…

(c)  ‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;

(d) ‘refugee status’ means the recognition by a Member State of a third country national or a stateless person as a refugee;

(e)  ‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;

(f)  ‘subsidiary protection status’ means the recognition by a Member State of a third country national or a stateless person as a person eligible for subsidiary protection;

…

(j)   ‘residence permit’ means any permit or authorisation issued by the authorities of a Member State, in the form provided for under that State's legislation, allowing a third country national or stateless person to reside on its territory;

(k)  ‘country of origin’ means the country or countries of nationality or, for stateless persons, of former habitual residence.

…

 

CHAPTER V

QUALIFICATION FOR SUBSIDIARY PROTECTION

Article 15

Serious harm

Serious harm consists of:

(a)  death penalty or execution; or

(b)  torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c)  serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict.

 

Article 16

Cessation

1.   A third country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.

2.   In applying paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm.

…

 

CHAPTER VI

SUBSIDIARY PROTECTION STATUS

Article 18

Granting of subsidiary protection status

Member States shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.

…

 

CHAPTER VII

CONTENT OF INTERNATIONAL PROTECTION

Article 20

General rules

1.   This Chapter shall be without prejudice to the rights laid down in the Geneva Convention.

2.   This Chapter shall apply both to refugees and persons eligible for subsidiary protection unless otherwise indicated.

…

Article 21

Protection from refoulement

1.   Member States shall respect the principle of non-refoulement in accordance with their international obligations.

2.   Where not prohibited by the international obligations mentioned in paragraph 1, Member States may refoule a refugee, whether formally recognised or not, when:

(a)  there are reasonable grounds for considering him or her as a danger to the security of the Member State in which he or she is present; or

(b)  he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State.

3.   Member States may revoke, end or refuse to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies.

…

 

Article 24

Residence permits

1.   As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3).

Without prejudice to Article 23(1), the residence permit to be issued to the family members of the beneficiaries of refugee status may be valid for less than three years and renewable.

2.   As soon as possible after the status has been granted, Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least one year and renewable, unless compelling reasons of national security or public order otherwise require.

 

Article 25

Travel document

1.   Member States shall issue to beneficiaries of refugee status travel documents in the form set out in the Schedule to the Geneva Convention, for the purpose of travel outside their territory unless compelling reasons of national security or public order otherwise require.

2.   Member States shall issue to beneficiaries of subsidiary protection status who are unable to obtain a national passport, documents which enable them to travel, at least when serious humanitarian reasons arise that require their presence in another State, unless compelling reasons of national security or public order otherwise require.”

 

 

The Procedures Directive
[17]      A further step in implementing the Tampere conclusions was the adoption of   the Procedures Directive. The main objective of the Procedures Directive as stated in its recital (5), is “to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status”. The directive applies to all applications for asylum made in the territory: Article 3 (1). Article 2(b) defines “application” or “application for asylum” as an application by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva Convention”. Mr Komorowski, on behalf of the respondent, drew attention to these provisions and submitted that the Procedures Directive could have no application to the appellant’s case given that he accepted he was not entitled to refugee status and relied only on his eligibility for subsidiary protection. However, in terms of Article 3(3):

“Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive 2004/83/EC, they shall apply this Directive throughout their procedure.”

 

[18]      Chapter II of the directive (Articles 6 to 22) is headed “Basic Principles and Guarantees”. Consistent with recital (5), what is contained in chapter II relates to the procedures to be made available in relation to applications for asylum. Chapter III (Articles 23 to 31) is headed “Procedures at First Instance”. It is in turn divided into three sections. Section I (Articles 23 and 24) deals with examination procedure for the processing of applications for asylum in accordance with the basic principles and guarantees of chapter II and derogations from that, with provision in Article 23(4)(c) that Member States may provide that an examination procedure be prioritised or accelerated if, inter alia, the application is considered to be unfounded because the applicant is from a country which is considered to be a safe third country for the applicant. Section II (Articles 25 to 27) deals with inadmissible applications and section III (Articles 28 to 31) deals with unfounded applications.

[19]      In terms of Article 25 (2) (c) a Member State may consider an application for asylum as inadmissible if, inter alia, a country which is not a Member State is considered as a safe third country for the applicant pursuant to Article 27.

Article 27 provides:

“Article 27

The safe third country concept

1.   Member States may apply the safe third country concept only where the competent authorities are satisfied that a person seeking asylum will be treated in accordance with the following principles in the third country concerned:

(a)  life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

(b)  the principle of non-refoulement in accordance with the Geneva Convention is respected;

(c)  the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

(d) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.

2.   The application of the safe third country concept shall be subject to rules laid down in national legislation, including:

(a)  rules requiring a connection between the person seeking asylum and the third country concerned on the basis of which it would be reasonable for that person to go to that country;

(b)  rules on the methodology by which the competent authorities satisfy themselves that the safe third country concept may be applied to a particular country or to a particular applicant. Such methodology shall include case-by-case consideration of the safety of the country for a particular applicant and/or national designation of countries considered to be generally safe;

(c)  rules in accordance with international law, allowing an individual examination of whether the third country concerned is safe for a particular applicant which, as a minimum, shall permit the applicant to challenge the application of the safe third country concept on the grounds that he/she would be subjected to torture, cruel, inhuman or degrading treatment or punishment.

…

5.   Member States shall inform the Commission periodically of the countries to which this concept is applied in accordance with the provisions of this Article.”

 

 

The Decision of the Upper Tribunal

[20]      Before the Upper Tribunal the submission on behalf of the appellant was founded on two provisions of the Qualification Directive: Article 2(e) and Article 24(2). Because he was a stateless person who did not qualify as a refugee but who faced a real risk of suffering serious harm if returned to his country of habitual residence (Syria), it was argued that the appellant was a “person eligible for subsidiary protection” in terms of Article 2 (e). Being so eligible he should (by virtue of Article 18 of the directive) be granted subsidiary protection status, as defined by Article (f), and accordingly issued with a residence permit, as provided by Article 24(2), a “residence permit” being defined by Article 2(j) as any permit or authorisation issued by the authorities of a Member State allowing a third country national or stateless person to reside on its territory. This, it was submitted, was consistent with what Lord Hope had said in R (on the application of ST (Eritrea)) v Secretary of State for the Home Department [2012] 2 AC 135 at para 45. It was further submitted that regard had to be had to the Procedures Directive and in particular Articles 23, 24, 25 and 27 of that directive. In reply, the respondent argued that although a person’s status as a refugee depends on whether he would be at risk in his country of origin, whether he can be lawfully expelled will normally depend on the proposed country of destination. That was so under the Refugee Convention and also in relation to humanitarian protection by reference to the European Convention on Human Rights. That had not been altered by the Qualification Directive. The content of international protection as provided by the directive was to be found in chapter VII. That included protection against refoulement in terms of Article 21 but Article 21 did not enlarge upon the prohibition of expulsion or return contained in Article 33 of the Refugee Convention. That was a prohibition against refoulement of a refugee “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.

[21]      The Upper Tribunal rejected the appellant’s submission as to the effect of the Qualification Directive and accepted the submission made on behalf of the respondent. In the view of the Upper Tribunal, as appeared from recital (25) of the Qualification Directive, the criteria for eligibility for the subsidiary protection to be provided for by the directive were those drawn, in particular, from the Refugee Convention and the European Convention on Human Rights. Thus, what was protected against was refoulement, as prohibited by Article 33 of the Refugee Convention. Article 24 of the directive did not establish an independent right of residence in the Member State concerned, rather it was confined to confirming a right of residence to those who qualified for such a right. Its function was to determine the modalities whereby a right of residence otherwise existing was to be documented. As far as the Procedures Directive was concerned, the stand-out word in the instrument, consistent with its full title, was “procedures”. The directive was concerned with processes and mechanisms to be applied to the determination of asylum applications. It was “the handmaiden” of the substantive measures which it served and facilitated. The provisions of Articles 1 and 18 of the European Charter of Fundamental Rights to which reference had been made added nothing to the appellant’s case. While the Upper Tribunal was aware of authorities to the effect that in international law the territories of the PNA do not have the status of a state and do not control their own borders, that did not promote the appellant’s case which encompassed the concession that as a matter of fact he would not be at risk of proscribed treatment in the event of being removed to the territory of the PNA.

 

Submissions to this Court

Appellant
[22]      The submission on behalf of the appellant presented by Mr K J Campbell QC was a renewal of the argument made to the Upper Tribunal. It depended upon what Mr Campbell contended was the plain meaning of the Qualification Directive. As a Palestinian registered with UNRWA the appellant was a stateless person; he had no country nationality. He had been habitually resident in Syria before he came to the United Kingdom. There was a real risk that he would suffer serious harm if returned to Syria. It was accepted that respondent had recognised that and accordingly proposed to remove the appellant to Gaza in the territories of the PNA. However, neither Gaza nor the PNA is a state and, not being a state, could not be regarded as a safe third country. The respondent had not certified Gaza as a safe third country or otherwise followed the terms of Article 27 of the Procedures Directive. It followed that the appellant was eligible for subsidiary protection and that the respondent was obliged by Article 18 of the Qualification Directive to grant him subsidiary protection status and, with that, a residence permit as required by Article 24. To that extent the Qualification Directive went beyond the protection conferred by the Refugee Convention.

Respondent
[23]      It was submitted by Mr Komorowski on behalf of the respondent that albeit the appellant had conceded before the First-tier Tribunal that he was not entitled to refugee status and accordingly his argument relied only on his being a person eligible for subsidiary protection as defined by Article 2 (e) of the Qualification Directive, his argument as to the consequences of that, if correct, would equally apply to persons entitled to the status of refugee. It was accordingly relevant to test the argument by examining the law applicable to refugees. The question of entitlement to the status of refugee must be distinguished from the question of what benefits ensue from that status. A person entitled to the status of refugee under the Refugee Convention may be removed from its territory by a receiving contracting state: Articles 32 and 33. The prohibition on expulsion contained in Article 32 extends only to a person who is lawfully in the territory according to the domestic law of the state; in the United Kingdom that being a person who had been given leave to enter or to remain and not a person who had simply been allowed into the country for the sole purpose of investigating and determining his claim for asylum: R (on the application of ST (Eritrea)). The legality of removing a refugee to a safe third country is correlative to the extent of the protection conferred by Article 33 which is a prohibition against return or refoulement in the sense of expulsion “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”. Refoulement does not cover expulsion to a safe third country: T v Land Baden-Wurttemberg, Case C-373/13 [2016] 1 WLR 109, AG Sharpston at para 57. Equally, where the issue is whether expulsion would give rise to a contravention of a person’s rights under Article 3 of the European Convention, that will only be the case where the risk of ill-treatment would arise in the country to which the person is expelled: Ahmed v Austria (1997) 24 EHRR 278. Thus, in respect of a refugee, but also in respect of someone entitled to a lesser degree of international protection (“subsidiary protection” in the language of the Qualification Directive), refoulement is the expulsion of a person to a territory where he will be in danger and the principle of non-refoulement referred to in Tampere conclusion 13 is the norm prohibiting such expulsion; the principle does not prevent expulsion where that would not result in a person’s return to a place of danger.

[24]      Mr Komorowski submitted that, as appeared from its recitals (2) and (3), the Qualification Directive was largely based on the protections and concepts contained in the Refugee Convention. Its provisions could be seen to track those in the Refugee Convention both in relation to refugee status and in relation to subsidiary protection status. The directive addresses the principle of non-refoulement in Article 21. That article requires Member States to “respect the principle of non-refoulement in accordance with their international obligations.” That is the only explicit prohibition of expulsion in the directive. Applying the principle of interpretation expressed in the maxim expression unius est exclusio alterius, given that only refoulement is prohibited, expulsion not involving refoulement must be taken to be permitted.

Mr Komorowski explained that Article 24 of the Qualification Directive was concerned solely with the formalities of confirming a right of residence to those who possess it. It did not, independently, create or imply a prohibition on removal or a corresponding right of residence which would otherwise not exist under other provisions of the directive. Such a reading would not be consistent with the natural language of Article 24 and would not be consistent with the express terms of Article 21. In counsel’s submission the Upper Tribunal was correct in its identification of the function of Article 24 as being to determine the modalities whereby a right of residence otherwise existing is documented and thereby to ensure the practical exercise of such a right. That is supported by consideration of the terms of the Procedures Directive which may legitimately be considered as an aid to interpretation: R (ZO (Somalia) and Others) R (MM (Burma)) v Secretary of State for the Home Department [2010] 1 WLR 1948, paras 27 and 28. The Procedures Directive applies only to claims under the Refugee Convention: Article 2 (b). It is therefore not applicable to the appellant who has conceded that he is not entitled to refugee status. It cannot therefore limit the respondent’s right to remove the appellant to a safe territory other than his country of origin. Were the appellant’s argument regarding the Qualification Directive sound, that would lead to anomalies. It cannot have been the Council’s intention in adopting the Procedures Directive to diminish the rights of refugees as they then stood (recitals (6) and (7) suggested a “levelling up” rather than the contrary) and yet the directive expressly envisages the removal of those seeking refugee status to safe third countries: Articles 23 (4) (c) (ii), 25 (2) (c). If the Procedures Directive is taken as not diminishing the rights of refugees, as the respondent contends it should be, their removal to safe third countries must have previously been permissible, not only under Refugee Convention but also under the Qualification Directive.  For the appellant’s argument to be correct, the Procedures Directive must be read as having had the effect of reducing rights previously created by the Qualification Directive for refugees, but not of those seeking only subsidiary protection. That would not be consistent with the character of the Procedures Directive as a measure concerned with procedure rather than substance, and, moreover, a measure concerned with advancing the rights of asylum-seekers rather than diminishing them.

[25]      As for the appellant’s argument that the territories of the PNA did not qualify as a safe third country, that matter had been determined against the appellant by the First-tier Tribunal (determination paragraphs 34 to 36) and was not subject to appeal. It was too late to take the point now. In any event, “country” should be given a wide interpretation to ensure that every situation is covered. Moreover, it was simply wrong to say that the respondent could only refuse an application on safe third country grounds at the stage of an initial determination of admissibility (which is what section II of chapter III of the Procedures Directive is concerned with). Article 23(4) (c) (ii) envisages a decision being made on safe third country grounds at the examination stage (which is the stage at which the appellant’s application was refused). In so far as the appellant had argued that the of effect of Article 27 was that the safe third country concept did not apply in the present case, Mr Komorowski emphasised that the Procedures Directive was merely procedural in nature, that it was concerned with applications for asylum, and that Article 27 was concerned with the application of the safe third country concept at the stage of determining admissibility.

 

Decision

[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 Geneva Refugee Convention as supplemented by the New York Protocol. The Council’s power to adopt the directive is derived from Article 63 of the consolidated Treaty establishing the European Community. The directive is a free-standing provision and capable of imposing obligations on member states of the European Union in respect of persons seeking international protection which are more extensive than the obligations which these states may have undertaken by their accession to other international instruments. The appellant says that that is exactly the effect of the directive, and he draws support from what Lord Hope said in para 45 of R (on the application of ST (Eritrea)): “[The Qualification Directive] goes further in some respects than the Refugee Convention because, for example, it requires a residence permit to be issued as soon as possible where an applicant qualifies as a refugee: Article 24(2)”.

[27]      The respondent’s answer to the appellant’s contention is not to dispute that the Qualification Directive goes further than the United Kingdom’s other international obligations and most importantly its obligations under the Refugee Convention, but to concentrate on just how far it goes. The directive may well require a residence permit to be issued as soon as possible but, says the respondent, only to those persons entitled to residence. Because he is not to be removed to a place where he will be at risk of harm the appellant is not such a person.

[28]      Just how far the directive goes is the question of construction upon which this appeal turns.

[29]      The principal source of international protection for those seeking asylum is the Refugee or Geneva Convention and its Protocol, of which the United Kingdom is a signatory. The Refugee Convention imposes a prohibition on refoulement of a refugee even where that refugee is not in the territory lawfully. Originally a word in French, “refoulement” means turning or forcing back and, in context, turning or forcing back a refugee to or over the frontier of a country where the life or freedom of the refugee would be threatened. “Non-refoulement” means the opposite, in other words not turning back the refugee to a country where he is likely to suffer relevant harm. Thus, respecting the principle of non-refoulement means adhering to the prohibition on refoulement and therefore not returning an asylum claimant to a place where he would be at risk of persecution or other relevant harm.

[30]      The United Kingdom has many international obligations other than those imposed by the Refugee Convention, and some of these have an impact on how it must treat claimants for asylum. Only two sources of such obligations are touched on in the materials put before the court, and neither featured in argument, albeit they give content, together with the relevant provisions of the domestic Immigration Rules, to the expression “subsidiary protection”. The two sources are the European Convention on Human Rights and in particular Article 3 (no Article 8 issue was raised in the present appeal) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by the United Kingdom in 1988) and again in particular Article 3.

[31]      The appellant accepts, at least for the purposes of argument in this appeal, that he cannot resist removal from the United Kingdom to the territories of the PNA on the basis of the provisions of the Refugee Convention, hence his reliance on the Qualification Directive and his need to argue that the directive goes further than the Convention. A difficulty with that argument, or at least with the argument that the directive confers significantly different protection from that conferred by the Refugee Convention, is that whether one looks at the terms of the power of the Council to adopt the directive as set out in Article 63 of the Treaty, or the aspirations expressed in the Tampere Conclusions and referred to in recital (2) of the directive, or the statement in recital (3) of the directive that “the Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees”, it would seem clear that the purpose of the Qualification Directive was to ensure uniform implementation of Member States’ existing international obligations and, in particular, those imposed by the Refugee Convention. It is however true that, as appears from recital (25), a purpose of the Qualification Directive was to “introduce” criteria for eligibility for “subsidiary protection” and that, as appears from the definition in Article 2(e), a “person eligible for subsidiary protection” is a third party national or stateless person who “does not qualify as a refugee”. Again as appears from Article 2, “refugee status” is different from “subsidiary protection status”. Thus, and the respondent does not dispute this, the appellant can say that he is entitled to international protection by virtue of the directive notwithstanding the fact that he is not a refugee, as that expression is to be understood by reference to Article 1 of the Refugee Convention or Article 2 (c) of the directive, as read with Article 12. However, being eligible for subsidiary protection depends on facing a real risk of suffering serious harm. Subsidiary protection status shares that feature with refugee status. It is the reason why international protection is required. Consistent with that, the structure of the directive is to bring together in chapter VII the various benefits which flow from and make up the elements of international protection. The first of these benefits is protection against refoulement, expressed in Article 21 as an obligation on Member States (applicable both to refugees or persons eligible for subsidiary protection) to respect the principle of non-refoulement. That is what the United Kingdom undertook to do in respect of refugees as a contracting state in terms of Article 33 of the Refugee Convention and is obliged to do in respect of refugees and persons eligible for subsidiary protection as a Member State in terms of Article 21 of the Qualification Directive. But that is the extent of the obligation. Agreeing with Mr Komorowski, on the basis of the principle that what is not forbidden is permitted, the respondent is free to exercise her powers of removal in respect of a refugee (as to which see Macdonald Immigration Law and Practice in the United Kingdom (ninth edition) para 17.70) as she considers appropriate, so long as she does not refoule him. If that is so in respect of a refugee, it must also be so in respect of a person eligible for subsidiary protection. Here the respondent does not propose to refoule the appellant. She does not intend to remove him to Syria where he would be at risk. She proposes to remove him to the territory of the PNA where he will not be at risk and where, we understand that there is reason to believe that he will be admitted. Article 21 of the directive, which is the only benefit of international protection which expressly relates to prohibition of expulsion, would therefore seem to provide the appellant with no answer to the respondent’s removal directions.

[32]      The appellant says that he finds an answer to the removal directions in Article 24 of the Qualification Directive, but before going to that provision he invites consideration of section II of chapter III of the Procedures Directive. His object is to displace the conclusion that, at least in the particular circumstances of his case, Article 21 provides him with no answer to the removal directions.

[33]      Section II comprises Article 25 to 27 of the directive. As we have already indicated, they relate to inadmissible applications for asylum. In terms of Article 25 Member States are not required to examine whether an applicant qualifies as a refugee in accordance with the Qualification Directive where the application is considered inadmissible, inter alia because a country which is not a Member State is considered as a safe third country, pursuant to Article 27. Taking it short, Article 27 (1) provides that Member States can only apply the safe third country concept if the competent authorities are satisfied of certain things. Article 27 (2) requires Member States to enact rules laid down in national legislation addressing: (a) reasonable connection between the asylum seeker and the third country, (b) methodology whereby the competent authorities satisfy themselves that a third country is safe, and (c) mechanisms whereby an individual asylum seeker might challenge the application of the safe third country concept to his case.

[34]      The safe third country concept is intrinsically connected to the principle of non-refoulement. A refugee is someone with a well-founded fear of persecution in his country of nationality or, if stateless, in his country of former habitual residence. A person eligible for subsidiary protection is someone who faces a real risk of harm in his country of origin or, again if stateless, in his country of former habitual residence. As we have explained, international protection means not returning the asylum seeker to one of these countries, whether of nationality, origin or habitual residence, where the asylum seeker would be at risk. But, as we have also explained, non-refoulement does not prevent removal to a country where the asylum seeker would not be at risk. Such a country (not being a Member State) is described as a “safe third country” and the principle that permits removal to it as the “safe third country concept”. Were the safe third country concept no longer to be recognised or were it otherwise to be inapplicable, there could be no principle of non-refoulement, or at least no such principle which could be distinguished from a simple prohibition on removal. The appellant argued that this was the effect of Articles 25 and 27 of the Procedures Directive, at least in his case. This was additional to his contention that the PNA, not being a state, could never be a safe third country.

[35]      Mr Campbell explained that in the United Kingdom the rules laid down in national legislation meeting the requirements of Article 27 (2)  would appear to be paras 17 to 19 of schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 or, possibly, sections 94 (7) to (8) of the Nationality, Immigration and Asylum Act 2002, but the respondent had not certified the appellant’s claim as inadmissible on safe third country grounds in terms of these provisions, as she might have done. The appellant’s claim had therefore been admitted. Once admitted, so submitted Mr Campbell, it must be analysed by reference to the Qualification Directive; the safe third country concept and therefore expulsion which did not amount to refoulement fell out of the picture.

[36]      We do not accept that the facts of this case, taken with the terms of the Procedures Directive have the result that the removal of the appellant to the territories of the PNA contravenes the principle of non-refoulement. In the absence of a developed argument to the contrary, we accept Mr Komorowski’s submission that a broad definition should be given to “country” when considering the safe third country principle. As a matter of fact the territories of the PNA have been determined by the First-tier Tribunal to be safe, as far the appellant is concerned, and not only has that determination not been appealed, we understood the appellant’s legal advisers to have taken that assessment as being factually correct. Mr Komorowski submitted on the basis of the definition of “application” or “application for asylum” in Article 2(b), that the Procedures Directive was limited to applications for recognition in refugee status and for that reason had no application to the appellant’s case because was based solely on his eligibility for subsidiary protection.  We have difficulty with that submission, given the terms of Article 3(3).  However, the perhaps more fundamental objection to the appellant’s argument in so far as founded on the Procedures Directive arises from, as the Upper Tribunal put it, the “stand out” word “procedure”. The principle of non-refoulement is fundamental to the structure of international protection which, following the Tampere Conclusions, the Qualification Directive, in respect of rights and obligations, and the Procedures Directive, in respect of procedure, build on. Respect for the principle of non-refoulement is adopted in Article 21 of the Qualifications Directive. As a matter of construction it cannot be modified by what the Upper Tribunal correctly described as no more than a “truly adjectival instrument of European legislation …concerned fundamentally with the processes and mechanisms to be applied in the determination of asylum applications.” The Upper Tribunal was satisfied that the Procedures Directive did not create any substantive rights in the realm of asylum or subsidiary protection. So are we.

[37]      Independent of anything that might follow from Article 21 of the Qualification Directive, the appellant founds on Article 24. It is headed “Residence permits”. As with the other Articles in chapter VII of the directive, it applies to both beneficiaries of refugee status and beneficiaries of subsidiary protection status, with the difference that in terms of Article 24 (1) the residence permit to be issued to beneficiaries of refugee status must be valid for three years and be renewable, whereas in terms of Article 24 (2) the residence permit to be issued to beneficiaries of subsidiary protection status must be valid for only one year and be renewable. The full terms of 24(2) are that:

“As soon as possible after the status has been granted Member States shall issue to beneficiaries of subsidiary protection status a residence permit which must be valid for at least a year and renewable, unless compelling reasons of national security or public order otherwise require”.

 

That, it was submitted on behalf of the appellant, had the effect of giving a right of residence to any person present in a Member State who is a beneficiary of subsidiary protection status (likewise, on this construction, Article 24 (1) would give a right of residence to beneficiaries of refugee status). We consider that would be a rather odd result. First, it would represent a shift in the mode of conferring international protection from the prohibition of expulsion provided by the Refugee Convention to the giving of a right to reside. That is at least an unexpected result of a directive which through its recitals states its purpose as being the common application of existing provisions for international protection and, in particular the Refugee Convention. Second, if those eligible for international protection have a right to reside, there is no very obvious purpose for the requirement to respect the principle of non-refoulement in Article 21. Third, as the appellant would have it, what might be regarded as a rather important right has been conferred by a side-wind. To put it more plainly, neither Article 24(1) in respect of beneficiaries of refugee status nor Article 24(2) in respect of beneficiaries of subsidiary protection status explicitly confers a right of residence. Fourth, as submitted by Mr Komorowski on behalf of the respondent, given that the Procedures Directive expressly envisages the removal of those seeking refugee status to safe third countries (Articles 23(4)(c)(ii), and 25(2)(c)), for the appellant’s construction of the Qualification Directive to be correct one must suppose that rights conferred by the Qualification Directive were then taken away by the Procedures Directive: a most improbable result of what is a professedly procedural rather than substantive measure and one intended to take forward the Tampere Conclusions.

[38]      We do not accept the appellant’s proposed construction of Article 24. It is concerned with the issue of a “residence permit”, defined as “any permit or authorisation issued by the authorities of a Member State in the form provided for under that State’s legislation, allowing a third country national or stateless person to reside on its territory.” The residence permit of Article 24 is of the same nature as the travel document of Article 25; it documents and provides for the administration of a pre-existing entitlement; it does not confer it. Looking to the language of Article 24 we cannot improve on the characterisation of the article contained in para 11 of the decision of the Upper Tribunal:

“…it is confined to the formalities of confirming a right of residence to those who qualify for such a right. Its function is to determine the modalities whereby a right of residence otherwise existing is to be documented. Its real purpose is to ensure the practical exercise of a right where such right already exists. This is achieved by providing that a residence permit must be issued “as soon as possible”, by prescribing its minimum duration (one year) and by stipulating that it be renewable.”

 

[39]      The appellant drew attention “for completeness” to Articles 1 and 18 of the Charter of Fundamental Rights and Freedoms of the European Union. The context is recital (10) of the Qualification Directive which states that the directive respects the fundamental rights and observes the principles recognised in particular by the Charter and seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.

Article 1 is in the following terms:

“Human dignity is inviolable. It must be respected and protected.”

Article 18 is in the following terms:

“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).”

 

Agreeing with the Upper Tribunal, in our view these Articles do not advance the appellant’s argument.

[40]      The appeal is refused.