Upper Tribunal revisits “obscure legal discussion” on appeals for “removable refugees”

Don’t say I didn’t warn you with that headline. The Upper Tribunal has found that the First-tier Tribunal erred in failing make a finding on whether revocation of leave for a refugee on the grounds that he was deemed a danger to the UK amounted to a breach of the Refugee Convention. The tribunal also concluded that the error made no difference to the outcome, and the appeal was dismissed. The case is SM (Article 32(2), Section 72, Essa post-EU exit) [2024] UKUT 00323.

Colin referred to Essa as “obscure legal discussion in which even I could find no interest”, so read on at your peril. The full headnote is set out at the end for those who just want to read that. It is probably worth noting that the same judge who heard Essa sat on a panel of two for this case.

It is also worth noting that “European refugee status” used here is a term which Bailii indicates exists almost exclusively in judgments by the two judges who made this decision. I think it is confusing and unhelpful and will do my best to avoid using it here. My understanding is that all the tribunal means by that phrase is the formal recognition of refugee status by the host country, here this is done under paragraph 334 of the immigration rules.

In the decision, the Upper Tribunal considered the difference between refugee status under the Refugee Convention (which is automatic where people meet the definition as we have explained previously) and the formal decision recognising that status under the immigration rules (the grant of leave), before looking at the different ways each of those statuses can, and cannot, be ended.

This case essentially looks at the difference between cessation of (article 1C of the Refugee Convention and paragraph 339A of the immigration rules) or exclusion from (article 1F or paragraph 339AA) refugee status which is where a person will no longer hold refugee status, as opposed to the use of article 33(2) which is described as “an exception to the principle of non-refoulement” as provided for at section 72 of the Nationality, Immigration and Asylum Act 2002 and paragraph 339AC of the rules.

The distinction is important because article 33(2) of the Refugee Convention provides for a person who is a refugee to be removed from the host state where they have “committed a particularly serious crime and who poses a current danger to the community”. In this situation the person is still a refugee under the Convention but they will be a “removable refugee” and this point is where UNHCR raised concerns in this case.

Background

The appellant is an Eritrean national recognised as a refugee in the UK in 2007 and granted indefinite leave to remain in 2012. On 31 October 2019 he was convicted of wounding/inflicting grievous bodily harm without intent and was sentenced to two years eight months’ imprisonment. The length of the sentence meant that the appellant was liable to automatic deportation under section 32(5) of the UK Borders Act 2007, subject to the exceptions at section 33 which include where removal would breach the Refugee Convention.

The Home Secretary made a decision to deport the appellant on 22 November 2019, however did not also proceed to make a deportation order. The decision stated that the appellant had not demonstrated that any of the exceptions applied, but noted that he had been granted asylum and indefinite leave to remain. The letter said that the appellant’s protection status had not been considered at this stage but the Home Office would now proceed to consider whether it should continue and he was invited to make representations on that point.

On 4 May 2021 the Home Secretary issued the appellant with a notice of intention to revoke refugee status, referring to paragraphs 338A and 339AC of the immigration rules. The use of the revocation process meant that UNHCR as well as the appellant were invited to make submissions. UNHCR set out its position in a letter dated 20 October 2021, stating that the agency’s position was different to that of the Home Office:

set out in section 6 of the HO’s asylum policy instruction on the revocation of refugee status in that it considers revocation of refugee status to refer only to circumstances set out in paragraph 339AC(ii) of the Immigration rules where a refugee’s subsequent conduct is so serious as to give rise to exclusion under either Article 1F(a) or 1F(c) of the 1951 Convention. UNHCR does not consider the grounds set out in subsections (i) and (ii) of paragraph 339AC (which repeat the relevant grounds in Article 33(2) of the 1951 Convention) to be pertinent to revocation proceedings. We wish to emphasise that Article 33(2) does not provide for the withdrawal of refugee status.

On 3 November 2021 the Home Secretary revoked the appellant’s leave to remain as a refugee. The response to UNHCR’s comments was that “the criteria for consideration of revocation of refugee status is whether paragraph 339AC(ii) of the Immigration Rule is met”. The Home Secretary accepted that the appellant cannot be returned to Eritrea and indicated during the appeal that the intention is to grant leave under the restricted leave policy.

The Upper Tribunal said of the revocation decision that:

68. It is important to note that the decision to ‘revoke’ refugee status did not assert that the applicant came within the cessation or exclusion clauses or that he no longer met the criteria for Convention Refugee Status under Article 1A(2). The decision to revoke leave to remain was made solely with reference to paragraph 339AC(ii) of the immigration rules and without reference to the principles of international law contained in the Refugee Convention.

69. Indeed, the respondent recognised that the appellant continued to be at risk if returned to Eritrea, but with reference to Article 3 of the European Convention of Human Rights (ECHR).

’31. Although your refugee status has been revoked, consideration of your particular circumstances identifies that at this point in time there is a potential breach of your rights under Article 3 of the ECHR, therefore your removal to Eritrea will not be enforced at this time. However, your circumstances and the sitution in Eritrea, will remain under review with a view to enforcing your removal as soon as possible.’

70. In summary, the respondent found that the appellant was a removable refugee with reference to Article 33(2) of the Refugee Convention, who could not be removed. In light of that contradiction, one might question the purpose of making such a decision.

His appeal was dismissed by the First-tier Tribunal on 19 December 2022. The judge accepted that the evidence showed that the appellant had undertaken steps to address the causes of his offending, had complied with licence conditions and had no further convictions.

However the judge found that there were clear risk factors set out in the Parole Board report which indicated that the appellant presented a medium risk of violence which would increase if he abused alcohol and that there was a high risk of causing serious harm to known adults. The judge concluded that the appellant had not rebutted the presumption that he was a danger to the community, nor the presumption that he had been convicted of a particularly serious crime. In light of that conclusion the judge was obliged to dismiss the appeal under section 72(10).

Appeal to the Upper Tribunal

The First-tier Tribunal’s decision was appealed on two grounds:

(i) The First-tier Tribunal failed to take into account, or failed to give adequate weight to, relevant evidence contained in the Parole Board’s report showing that any risk the appellant posed could be managed in the community.

(ii) The First-tier Tribunal failed to follow the approach outlined in Essa in which the Upper Tribunal found that even if a judge was obliged to dismiss the appeal with reference to section 72 NIAA 2002, it was still necessary to determine the relevant ground of appeal under section 84 NIAA 2002 as to whether the decision amounted to a breach of the United Kingdom’s obligations under the Refugee Convention in the case of a removable refugee.

On 26 July 2023 the Upper Tribunal granted permission, “noting that the decision to revoke protection status was made after the United Kingdom’s exit from the EU. The Upper Tribunal found that the case may be suitable to consider the wider issue of the applicability of the principles outlined in Essa as they might apply post-EU exit”.

The Upper Tribunal dismissed the first ground of appeal, saying that it was open to the judge to place the weight he did on the appellant’s continued consumption of alcohol when assessing risk.

On the second ground, the Upper Tribunal concluded that the First-tier Tribunal had erred in failing to make a specific finding under section 84(3) of the Nationality, Immigration and Asylum Act 2002 on whether revocation of leave would amount to a breach of the United Kingdom’s obligations under the Refugee Convention. However this did not make any difference to the outcome because the judge was required under section 72(10) to dismiss the appeal. The appeal was dismissed.

Conclusion

The comments about the restricted leave policy were probably the most interesting part of this decision. The Upper Tribunal said:

It was beyond the scope of this hearing to examine the full details of the Restricted Leave policy and whether such status would breach the United Kingdom’s obligations under the Refugee Convention. Some aspects of the policy that were touched on briefly at the hearing might not be compatible. It becomes clear from the analysis above that any grant of leave to remain following the revocation of the appellant’s ILR would need to permit the appellant to access all the rights and benefits that he is entitled to as a person with Convention Refugee Status pending his removal.

The indication that the policy may not be compatible with the Refugee Convention may mean that we see further litigation on this point (and hopefully nothing more on Essa).

Headnote

The headnote is as follows:

1. The broad principles identified in Essa (Revocation of protection status appeals) [2018] UKUT 00244 (IAC) continue to apply to decisions made post-EU exit. The immigration rules continue to refer to ‘revocation’ of leave to remain as a refugee in similar terms and the terminology used in sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’) currently remain the same.

2. Post-EU exit, a grant of leave to remain as a refugee no longer acts as a grant of European Refugee Status, but is an act done under domestic law because a person meets the requirements of paragraph 334 of the immigration rules to be recognised as a refugee.

3. Post-EU exit, a decision to ‘revoke’ leave to remain as a refugee is no longer a decision giving effect to Article 14 of the Qualification Directive, but an act done under domestic law to remove the mechanism by which a person’s Convention Refugee Status under international law is recognised under domestic law.

4. Where leave to remain as a refugee is revoked solely with reference to section 72 NIAA 2002, and the cessation or exclusion clauses have not been applied, the dismissal of the appeal with reference to section 72(10) is unlikely to be problematic because it is likely that the person continues to have Convention Refugee Status.

5. The situation might be different where the decision to revoke a person’s leave to remain as a refugee with reference to section 72 NIAA 2002 is made in conjunction with a decision to cease or exclude a person from Convention Refugee Status. The application of section 72(10) NIAA 2002 is a technical mechanism requiring the appeal to be dismissed without affording the person an adequate opportunity to determine whether their Convention Refugee Status continues with reference to the relevant ground of appeal contained in section 84(3).

6. In appeals involving decisions to revoke protection status on the ground that the person has ceased to be or is excluded from refugee status, and where a person has failed to rebut the presumption that they are a danger to the community under section 72 NIAA 2002, findings of fact still need to be made to determine whether the person has Convention Refugee Status. This might need to be done to give effect to any rights and benefits still conferred by the Convention to a ‘removable refugee’ pending their removal from the UK. To this extent, it is material to a proper determination of the relevant ground of appeal relating to the Refugee Convention even if the overall outcome of the appeal is determined by operation of statute.