Hilary Term
[2014] UKSC 6
On appeal from: [2011] CSIH 28
JUDGMENT
I.A. (Appellant) v The Secretary of State for the Home Department (Respondent) (Scotland)
before
Lady Hale, Deputy President
Lord Kerr
Lord Wilson
Lord Hughes
Lord Hodge
JUDGMENT GIVEN ON
29 January 2014
Heard on 26 November 2013
Appellant Jonathan Mitchell QC Daniel Byrne (Instructed by Drummond LLP) |
Respondent Mark Lindsay QC John MacGregor (Instructed by Advocate General) |
|
Intervener (United Nations High Commissioner for Refugees) Ailsa Carmichael QC Tom Hickman (Instructed by Baker & McKenzie LLP) |
LORD KERR (with whom Lady Hale, Lord Wilson, Lord Hughes and Lord Hodge agree)
The determination of the Asylum and Immigration Tribunal
"As I have noted, independent documentary evidence regarding the procedures used to issue the appellant the refugee certificate in Iraq and refugee status in Turkey by-the UNHCR was not before me, nor evidence regarding on what basis the appellant applied for this status and on which it was granted. The appellant's evidence was most vague. Therefore, whilst the granting of refugee status to the appellant should be regarded as a starting point, it is not necessarily a very strong one, on its own, without any helpful evidence as to the basis and procedures for the previous grant. I, however, do bear in mind that it is a starting point, that it is significant and that whilst considering the substantive merits of the case, the most clear and substantial grounds, if they exist, must be provided for coming to a different conclusion"
The appeal to the Extra Division of the Court of Session
"In reality, a decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case. It would be just as unrealistic to contend that a decision by the UNHCR as to refugee status must always be given considerable weight regardless of any indications to the contrary as it would be to contend that it could be given less than considerable weight for no good reason."
"While UNHCR decisions as to status … have no binding legal effect, they are to be treated with great respect in the interests of legal diplomacy and comity having regard to their source. The mind of the decision maker, in this jurisdiction, where an applicant can lay claim to UNHCR status, as a given datism, must in its decision making process not lose sight of that fact in reaching its disposal of the case before it. A decision of the UNHCR on refugee status will be a very important piece of evidence throughout the decision maker's journey. But it has ultimately no greater claim than that and, if the other material before the decision maker leads him/her to considerations that point cogently against the conclusion arrived at by the UNHCR, then the decision maker is fully justified in departing from the latter conclusion."
The UNHCR material
"UNHCR is not always able [to], nor can it be expected to, respond to every request for documentation and/or information on a particular decision. There are good reasons why UNHCR is not able to provide such information in an individual case, including the observance of confidentiality/data protection principles, capacity or resources, access and/or the security of staff, refugees and/or operations which may be compromised."
The effect of the grant of refugee status by UNHCR
"The earlier grant of asylum is not binding, but it is the appropriate starting point for the consideration of the claim; the grant is a very significant matter. There should be some certainty and stability in the position of refugees. The adjudicator must consider whether there are the most clear and substantial grounds for coming to a different conclusion. The adjudicator must be satisfied that the decision was wrong. The language of Babela is that of the burden of proof: their status is prima facie made out but it can be rebutted; the burden of proof in so doing is on the Secretary of State. We do not think that that is entirely satisfactory as a way of expressing it and it leaves uncertain to what standard the burden has to be discharged and what he has to disprove. The same effect without some of the legal difficulties is established by the language which we have used."
"But the important point is that it does not prevent the United Kingdom from challenging the basis of the grant in the first place. It does not require only that there be a significant change in circumstances since the grant was made. Clear and substantial grounds may show that the grant should never have been made by the authorities; it may be relevant to show that the authorities in the country in question lacked relevant information or did not apply the Geneva Convention in the same way. Exclusionary provisions may be relevant. The procedures adopted for examination of the claim may also be relevant. Considerations of international comity may be rather different as between EU member states and those with less honest administrations or effective legal systems."
"In reality, a decision by the UNHCR as to refugee status will, given the UNHCR's particular expertise and responsibilities under the Refugee Convention, be given considerable weight by the Secretary of State and the tribunal unless in any particular case the decision taker concludes that there are cogent reasons not to do so on the facts of that individual case. It would be just as unrealistic to contend that a decision by the UNHCR as to refugee status must always be given considerable weight regardless of any indications to the contrary as it would be to contend that it could be given less than considerable weight for no good reason."
"The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees ..."
"A state decision-maker cannot disregard UNHCR's recognition of refugee status in evaluating the individual's claim unless there are cogent reasons for doing so. A state decision-maker may, after an examination of all the evidence available to him or her arrive at a decision regarding an applicant's eligibility for refugee status different from the UNHCR recognition where there are cogent reasons for doing so. Cogent reasons would include:
a. Where reliable information is available to the state decision-maker which supports a finding that the applicant does not meet the definition of a refugee in article 1A(2) of the 1951 Convention, for example where changes have occurred in the circumstances of the applicant or his or her country of origin which directly affect the assessment of the claim for refugee status. Other examples could include where previously unavailable or new information is now before the state decision-maker and which directly affects the assessment of the claim for refugee status. Information of this sort will often be information which post-dates UNHCR's decision.
b. Where reliable information is available to the state decision-maker which brings the applicant within the exclusion clauses in article 1F of the 1951 Convention.
c. Where reliable information is available to the decision-maker which, when considered in the light of all the available information, supports a finding that the applicant's statements on material elements of the claim are not credible."
Did the immigration judge give sufficient weight to the UNHCR decision?
"… whilst the granting of refugee status to the appellant should be regarded as a starting point, it is not necessarily a very strong one, on its own, without any helpful evidence as to the basis and procedures for the previous grant. I, however, do bear in mind that it is a starting point, that it is significant and that whilst considering the substantive merits of the case, the most clear and substantial grounds, if they exist, must be provided for coming to a different conclusion."
The fresh evidence
"First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly the appellant (or his advisers) must not been have been [sic] responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Disposal
"When a human rights or asylum claim has been refused... and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."