Chapter 12

12.1.5 Legal nature of the refugee claim in the UK

The Court of Appeal in EN (Serbia) v SSHD [2009] EWCA Civ 630 confirmed that the Refugee Convention has not been incorporated into English law.

12.1.5.2 Refugee Qualification Directive and
12.1.6 Asylum and human rights

The ECJ made its first decision on the interpretation of Article 15 (c) of the Qualification Directivein Elgafaji C-465/07. The Court held that the protection of Article (c) was different from Article 3 ECHR, and its interpretation must be carried out independently. The threat referred to in Article 15(c) was inherent in a general situation of international or internal armed conflict and the violence was described as ‘indiscriminate’, which implied that it could extend to people irrespective of their personal circumstances. From this the ECJ drew the conclusion that the word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence reached such a high level that substantial grounds were shown for believing that a civilian who returned would, solely on account of their presence, face a real risk. An applicant would not have to show that they were specifically targeted.

The Court of Appeal considered Article 15(c) in QD and AH (Iraq) v SSHD [2009] EWCA Civ 620. They accepted the independence of the Article, as established in Elgafaji and in KH (Article 15(c) Qualification Directive) Iraq CG [2008] UKAIT 00023, the first UK decision interpreting Article 15 (c). However, they disapproved the tribunal’s view that the meaning of the provision should be drawn from international humanitarian law.

In KH the Secretary of State had conceded that the whole territory of Iraq was in a state of internal armed conflict, but a national of Iraq would still have to show that the other requirements of Article 15(c) were met in order to claim protection under that Article. On the basis of the evidence in the case of KH, neither civilians in Iraq generally nor civilians even in provinces and cities worst-affected by the armed conflict faced a ‘serious and individual threat’ to their ‘life or person’ within the meaning of Article 15(c) merely by virtue of being civilians.

This would still be the case after Elgafaji and QD and AH (Iraq).

12.2 Process of making an asylum application

House of Commons Public Accounts Committee published a report on the asylum process called ‘Management of Asylum Applications’. They found that the New Asylum Model had brought substantial improvements into the asylum process, but that UKBA faced major challenges to sustain that improvement. The speed of decision-making had improved, but work was needed to improve the quality of decisions as well. UKBA stated its intention to clear the backlog of so-called legacy cases by 2011.

12.3 Fast track procedures

The Asylum and Immigration Tribunal (Fast Track Procedure) (Amendment) Rules 2008 SI 1089, which came into force on 12th May 2008, provided for the fast track procedure rules to apply in Oakington as well, so that the same regime can be operated there as at Harmondsworth.

The increased use of detained fast track procedures was one of the subjects of criticism by Thomas Hammarberg, the Commissioner for Human Rights of the Council of Europe, in a report following his visit to the UK in 2008 (CommDH(2008)23 Strasbourg, 18th September 2008). He recommended regulating DFT by introducing legislation in conformity with the ECHR, which would exclude detention of particularly vulnerable people. The proposed amendments to the Reception Directive would limit the use of detention, but, as mentioned in the update to chapter 5, the UK does not intend to opt in.

12.5 Credibility

In JT (Cameroon) v SSHD [2008 EWCA Civ 878 the Court of Appeal considered the application of section 8 Asylum and Immigration (Treatment of Claimants etc) Act 2004. The appellant was a citizen of Cameroon who arrived in the United Kingdom using false papers. He used two identities while in the United Kingdom. The tribunal had made a low assessment of his credibility. In his appeal to the Court of Appeal it was argued on his behalf that the tribunal had been over-influenced by section 8, and had treated the matters which were listed in section 8 as being determinative of credibility. The Court said that the matters listed in section 8 must be taken into account, but only as part of the overall assessment of credibility. It was legitimate to read the word ‘potentially’ into section 8 so that the listed matters were taken into account as ‘potentially affecting credibility’. This way, section 8 could be applied in a way that did not offend the constitutional principle of the independence of the judiciary.

12.7.2 Fresh evidence or fresh claim

In R (on the application of YH) v SSHD [2008] EWHC (Admin) the court had to consider the situation of a citizen of Iraq from the Kurdish Autonomous Zone. He had claimed asylum in the UK in 2000 on the grounds that he feared ill-treatment by the authorities in the KAZ due to his involvement in the illegal sale of a mummy. His claim was refused and his appeal dismissed and he had returned to Iraq in 2006.

He made a clandestine entry to the UK in 2008 and claimed asylum upon being discovered. In response to four standard questions he said that he had had problems again because of his dealings with historical goods, including that he had been arrested and tortured. The arrest and torture were not part of his previous claim. He saw a doctor who recorded that he had marks on his arm which he said were due to torture.

If his claim had been treated as the claim of a person who had not sought asylum before, i.e. as a completely new asylum claim, the Secretary of State would have been obliged to consider it, and then if she had refused, the claimant would have been entitled to appeal. If the claim was treated as an application under rule 353 to have representations treated as a fresh claim then the Secretary of State could reject the representations on the grounds that the matters alleged were not sufficiently new, and did not constitute a fresh claim. This is what she did, and her view was upheld by the Court, which considered that Rule 353 of the immigration rules applied to situations where the claimant had left the UK after the failure of his previous asylum claim. A new claim made on a subsequent entry to the UK must be subject to the ‘fresh claim’ test.

12.7.3.2 Country guidance cases

In HS (Zimbabwe) [2009] EWCA Civ 308 the Court of Appeal held that where a country guidance decision was made while an asylum and human rights appeal was pending, the Secretary of State should withdraw the original decision and remake the decision in the light of the new country guidance.

12.11 Safe third country

The High Court in The Queen on the application of Abdullahi Ahmed Mahamed [2008] EWHC 1312 (Admin) held that a safe third country certificate issued under schedule 3 of the 2004 halted a pending appeal. It did not only prevent the asylum seeker from initiating an appeal.

12.11.3 Dublin Convention and Dublin II

The Dublin regulations provide that a person must be returned to the responsible Member State within six months. Clearly this window can be lost if appeals are pursued, but the ECJ held, in its first decision on the interpretation of the Qualification Directive, Petrossian C-19/08, that a Member State which provided appeal rights against a Dublin decision would not, because of the time taken by that process, lose the opportunity to send the individual back to another Member State.

12.11.2 Current legislation on safe third countries and
12.11.4 Challenging certificates and deeming provisions

The Court of Appeal’s decision in Nasseri was upheld by the House of Lords (Nasseri v SSHD [2009] UKHL 23). The evidence at the time of the hearing had been that Greece was not in fact returning asylum seekers to Afghanistan. This being the case, the House of Lords held that para 3(2)(b) of Part 2, Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was not per se incompatible with the Human Rights Act as the appellant would not be at risk of refoulement if returned to Greece pursuant to the Dublin Regulations.

The House of Lords said that the creation of a statutory presumption that Greece was safe for returning asylum seekers was a calculated risk taken by Parliament, which must be presumed to have taken into account that there was a possibility that return might not be safe in an individual case. The Secretary of State would run a risk of there being grounds for a declaration of incompatibility in an individual case if she did not regularly review the safety of countries of return. But that did not mean it was unlawful for Parliament to legislate in this way, and Article 3 did not import a legal obligation to carry out such reviews.

Although the Dublin regulations did not absolve Member State from responsibility to ensure that there was no Article 3 risk in returning an asylum seeker to another state, this did not imply a procedural obligation to investigate in each case.

Nevertheless, challenges to returns to Greece continue in a number of EU countries, and courts in France and Belgium have recently suspended returns.

Reading list

House of Commons Public Accounts Committee: ‘Management of Asylum Applications’ 28th report of session 2008-9 HC 325
Storey, H. ‘The EU Refugee Qualification Directive: a Brave new World?’ International Journal of Refugee Law Vol. 20 no. 1 March 2008 pp. 1-49
Thomas, Robert, ‘Consistency in Asylum Adjudication: Country Guidance and the Asylum Process in the UK’ International Journal of Refugee Law Vol. 20 no. 4 2008 pp. 489 -532.

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Oxford University Press, Online Resource Centre, Chapter 12.