Asylum – Ethiopia – Persecution – Refugees

Secretary of State for the Home Department v St (Eritrea): CA (Civ Div): (Sir Anthony May (president QB), Lords Justices Longmore, Stanley Burnton)9 June 2010

The appellant secretary of state appealed against a decision ([2008] EWHC 3162 (Admin)) directing him to grant the respondent (T) leave to remain and to recognise her as a refugee.

T was of Eritrean nationality, although she had never lived in Eritrea and until she came to the UK she had lived in Ethiopia. On arrival in the UK, she claimed asylum. She claimed to fear persecution in both Eritrea and Ethiopia. The secretary of state did not accept that she would be at risk in either country and decided that she should be removed to Eritrea. T appealed to an adjudicator who dismissed her appeal. The adjudicator found that T would be at risk of persecution in Eritrea on account of her religion, but that she could safely be returned to Ethiopia and that there was no real risk of her being deported from Ethiopia to Eritrea if she was returned to the former country.

The Asylum and Immigration Tribunal ordered reconsideration on the basis that, although removal directions had been set for Eritrea, the adjudicator had dismissed the appeal by reference to her conclusion that T could be returned to Ethiopia.

The AIT held that the adjudicator had erred in law and found that T was a refugee and that her removal would be unlawful. The secretary of state then issued a fresh reasons for refusal letter, refusing T leave to enter and notifying her that he proposed to give directions for her removal to Ethiopia. T applied for judicial review and the judge quashed the decision, declining to grant T refugee status and ordered him to recognise T as a refugee and grant her leave to remain on the basis that the effect of the decision of the AIT that T was a refugee entitled her to the protection of article 32 of the Convention relating to the Status of Refugees 1951 (United Nations), and therefore to remain in the UK.

The secretary of state submitted (1) that article 32 did not apply to T, although she was a refugee, since she was not ‘lawfully’ in the UK, not having been granted leave to enter or remain; (2) the effect of the AIT decision was not to grant asylum to T.

Held: (1) The drafting of the convention, and authority, supported the conclusion that a refugee was not entitled to the protection of article 32 unless he or she had been granted the right of lawful presence in the state in question. Whether a refugee was lawfully in the territory of a state was determined by its domestic law. However, any refugee was entitled to the protection of article 33, whatever the legal status of his or her presence under national law. An interpretation of article 32 to the effect that it applied to any person who was recognised as a refugee was incorrect; such an interpretation involved giving a different interpretation to ‘refugee’ in adjacent provisions of the convention and resulted in the words ‘lawfully in their territory’ in article 32 having no meaning or effect, Szoma v Secretary of State for Work and Pensions [2005] UKHL 64, [2006] 1 AC 564 considered. To construe article 32 as limited to refugees who had been granted rights of residence but article 33 as applicable to all refugees made perfect sense. Judicial recognition that a person was a refugee did not make any difference to the application of article 32. The court was bound by authority to hold that Szoma was confined to social security benefits, JA (Ivory Coast) v Secretary of State for the Home Department [2009][ EWCA Civ 1353, the Times, 2 February 2010 followed. Article 32 only applied to a refugee who had been granted leave to enter and stay in the UK. Temporary admission or leave to enter for the purpose of the determination of a claim for asylum did not render a stay lawful for the purposes of article 32. Therefore, if T could live in Ethiopia without fear of persecution, the secretary of state could remove her there without breaching the convention.

(2) Recognition as a refugee did not of itself confer any right to remain in the UK. Thus the grant of asylum was more than the recognition that a person was a refugee. A person who was recognised as a refugee was entitled to asylum if paragraph 334(v) of the Immigration Rules was satisfied. The application of that paragraph was not considered by the AIT in the present case because the issue of return to Ethiopia was known to be outstanding and it made no finding on it. The determination of the AIT did not have the effect of a direction to the secretary of state to grant asylum, Saad v Secretary of State for the Home Department [2001] EWCA Civ 2008, (2002) Imm AR 471 distinguished. The appeal determined by the AIT was not a status appeal under section 83 of the Nationality, Immigration and Asylum Act 2002, but an appeal against an immigration decision under section 82, and could not have the unintended effect of a direction to the secretary of state to grant asylum. T’s appeal under section 82 against the removal directions for Ethiopia would be determined by the AIT.

Appeal allowed.

Lisa Giovannetti (instructed by the Treasury Solicitor) for the appellant; Richard Drabble QC, Eric Fripp (instructed by Duncan Lewis & Co) for the respondent.